JAGAT CHANDRA ACHARJI Vs. SYAMA CHARAN BHATTACHARJEE

JUDGEMENT

(1.) In these two cases the point which has been raised (the same point has been raised in each case), is a very unusual point, and one upon which there is no authority.

(2.) What happened is as follows: Mr. Justice Holmwood sitting with Mr. Justice Chapman heard these second appeals under Order XLI, Rule 11, of the Civil Procedure Code and dismissed them. After that Mr. Justice Chapman took a month s leave immediately before the long vacation, and while he was away applications were made to Mr. Justice Holmwood for a review of the judgments which had been delivered by him and Mr. Justice Chapman. Mr. Justice Holmwood heard the applications for review and dismissed them. As far as I understand the facts, the parties did not object at the time of his hearing the applications on the ground that he had no jurisdiction so to do: but, of course, that fact or the consent of parties will not give jurisdiction if he had no jurisdiction under the Act.

(3.) The learned Vakil who appeared in the first of these cases mentioned to us a case which was decided by Mr. Justice Woodroffe and Mr. Justice Mookerjee and seemed to think that his case was covered by that decision. But in that case the facts were materially different from those in this case. There Mr. Justice Teunon sitting with Mr. Justice Smither, who was then acting as a Judge of the High Court, had dealt with a second appeal. Then after Mr. Justice Smither left the Court, i. e., after his officiating period had come to an end and he ceased to be a member of the Court, an application was made to Mr. Justice Teunon for a review of the judgment delivered by him and Mr. Justice Smither, and he dealt with that application; and then an appeal was filed against the decision of Mr. Justice Teunon under Section 15 of the Letters Patent. That appeal came on for hearing before Mr. Justice Woodroffe and Mr. Justice Mookerjee who came to the conclusion that no appeal lay. They referred to the Code, and amongst other reasons they referred to the fact that if they had heard the appeal from Mr. Justice Teunon they would in effect be hearing an appeal from a decision of two Judges, because after Mr. Justice Smither had ceased to be a member of the Court. Mr. Justice Teunon represented the Court which had been constituted by the two Judges, and, therefore, to hear an appeal from Mr. Justice Teunon would be to hear an appeal from the two Judges, which, of course, they could not. If I may say so, I entirely agree with the judgment of Mr. Justice Woodroffe and Mr. Justice Mookerjee, but that judgment does not cover the present cases, because Mr. Justice Chapman did not cease to be a member of this Court, nor was he in the words of the rule "precluded by absence or other cause for a period of six months next after the application from considering the decree to which the application referred"--he was merely away on a month s leave prior to the usual long vacation and, the applications, if they had been postponed, could have been heard by Mr. Justice Holmwood and Mr. Justice Chapman after the expiration of the long vacation in the beginning of the next term. In my judgment, therefore, Mr. Justice Holmwood, when he heard the applications and refused them, was acting without jurisdiction. I ought to have mentioned that the rule which applies to this matter is Rule 5 of Order XL VII.