SHANTAPPA JINNAPPA PARMAJ Vs. RAMCHANDRA GOPAL SUKHTANKAR

JUDGEMENT

(1.) THE first point taken in this appeal ia that the lower appellate Court was presided over by an Assistant Judge who ordinarily sat in the same Court as the Assistant Judge who tried the suit in the first instance and that although there was a change of persons, it was an appeal from one Court to the same Court again and that such procedure was contrary to principle and contrary also to the provisions of the Bombay Civil Courts Act. THE appellate Judge who tried the case in appeal was empowered to hear appeals referred to him by the District Judge by a notification of Government under Section 17 of the Bombay Civil Courts Act. Such notification has the effect of conferring appellate powers not upon the Court, that is any occupant of the Court of the Assistant Judge, but upon the person and such powers continue even after that person is transferred to another District to discharge the functions of an Assistant Judge (see Section 18). It is, however, contended that upon the words of Section 17 which enables the Government to empower the Assistant Judge to try appeals from decrees or orders of subordinate Courts such as would lie to the District Judge, no power is given to him to try appeals from any Courts other than those mentioned in part VI of the Act which is headed " Subordinate Judges. " It is, however, clear that under the scheme of the Bombay Civil Courts Act, as also under the Civil Procedure Code, Section 24, au Assistant Judge is subordinate to the District Judge and Section 16 of Part V of the Bombay Civil Courts Act, in which Section 17 also occurs, refers to Assistant Judges subordinate to the District Judge.

(2.) WE must, therefore, take it that the power to hear appeals is conferred with reference to decrees of the Assistant Judge s Court, as well as to decrees of Subordinate Judges Courts and the learned Judge of the appellate Court in this case had, therefore, in terms of the Act, power to hear such appeal from the Assistant Judge s Court, as might be referred to him by the District Judge in terms of Section 17. It may perhaps be observed that the power conferred on the District Judge to direct an Assistant Judge to hear an appeal from the Assistant Judge s Court, is one which should be exercised very sparingly. It might conceivably lead to anomalies and abuses in the administration of justice. That, however, is a general remark not called for by the facts of this particular case. Both Judges seem to have been clearly of opinion that the defendant had no case upon the facts. and there has been no miscarriage of justice. WE do not think there is any reason to interfere with the decision of the lower appellate Court as to costs. The appeal must, therefore, be dismissed with costs.