EMPEROR Vs. DEVAPPA RAMAPPA NAIK

JUDGEMENT

(1.) This is an application for a revision of an order made by the Second Class Magistrate under Section 2 of the Workmen s Breach of Contract Act (XIII of 1859) directing the refund of money advanced. The order of the Second Class Magistrate was made on the 9th April 1918 and it was confirmed on appeal by the District Magistrate on 1st August 1918.

(2.) A preliminary objection is taken that revision by this Court is incompetent and that the application for revision is time-barred.

(3.) Now Section 2 of the Workmen s Breach of Contract Act is explained in the case of Emperor v. Balu Saluji (1908) I.L.R. 33 Bom. 25; 10 Bom. L.R. 1126 as divisible into two parts. The first part is an inquiry into the fact whether a breach of contract has occurred and in the event of the breach of contract being proved that inquiry concludes with an order directing either return of the advance or specific performance of the contract. The second part is an independent proceeding ensuing on disobedience of the order made on the first part. It is this second proceeding that is penal. For there is no offence unless and until the order made under the first part has been disobeyed. It is on this construction of the section that the preliminary objection is raised that whereas the order made in this case by the Magistrate is an order under part I, the proceeding is not of a criminal, but of a civil, nature and therefore not subject to revision by this Court. In my opinion there is no substance in this objection. The power of revision of this Court under Sections 435 and 439 of the Criminal Procedure Code refers to any proceeding before any inferior Court situate in the local limits of our jurisdiction. The test is not the nature of the proceeding held by the Court, but the nature of the Court in which that proceeding is held. Proceedings of a civil nature may be held in a criminal Court, as for instance, applications for maintenance under Section 488 of the Criminal Procedure Code, and these are subject to revision under Section 435. The Legislature evidently considered that proceedings of reference to easements and possession of moveable property, though of a civil nature, may be subject to revision by the High Court for they have been made the subject of the special exemption enacted in Sub-section 3 of Section 439. Further the case of In re Chinto Vinayak Kulkarni (1900) 2 Bom. L.R. 801 is a case in which this Court revised an order made under part I of Section 2 of the Workmen s Breach of Contract Act.