PACHI DASI Vs. BALA DAS

JUDGEMENT

(1.) This was a suit by the daughter of one Kala Nath Dass to set aside as fraudulent a bond said to have been executed by Kala Nath Das in favour of the defendant No. 2 and the decree obtained upon it on confession of judgment, by her brother Bala. The plaintiff's case was that Bala was excluded by his blindess from the inheritance, that she was the heir of Kala Nath Das, and that the proceedings in the bond suit were fraudulent and had been fraudulently concealed from her. The Court of first instance found that Bala's blindness was not proved to be of such a character as to exclude him from the inheritance, and that the bond and suit upon it were dishonest. It accordingly dismissed the suit. On appeal the Subordinate Judge dealt with the case under Section 551 of the former Code, without sending for the record. After stating the points for determination the Subordinate Judge observed: After examining the judgment of the lower Court and considering the arguments urged by the learned pleader for the appellant, I am inclined to agree with the lower Court in thinking that it is not proved either that defendant No. 1 was born blind or that the decree which it is now sought to have set aside, was obtained collusively." He accordingly dismissed the appeal. The plaintiff appeals to this Court.

(2.) The first point taken is that as the appeal proceeded on questions of fact, the proof of which depended on evidence, the Subordinate Judge was not competent to dispose of it without sending for the record and examining that evidence. The learned pleader for the appellant has pointed out the hardships which in his view may be expected to ensue if Courts of first appeal dispose of appeals on questions of fact without examining the record. The simple answer to this contention is, to my mind, that the considerations put forward are so self-evident that they cannot be supposed to have been absent from the mind of the Legislature when Section 651 was enacted, and the terms of that section show that the Legislature thought that Courts of appeal could be trusted to dispose of appeals summarily without examining the record, if they thought fit under the circumstances of the case to do so. The learned pleader cannot give us any authority for the proposition that Courts of appeal must send for the record before disposing of appeals on questions of fact under Section 551; and if the Legislature had really intended to make this course obligatory, there is no apparent reason why this should not have been enacted in the section. This Court should not, in my opinion, lay on the Subordinate Courts restrictions and burdens which the Legislature has not seen fit to impose, and I am, therefore, not prepared to abridge the discretion given to the lower appellate Court or to hold that it was bound by law to send for the record because the appeal before it turned on questions of fact.

(3.) The second point taken is that when a Court dismisses an appeal under Section 551 it is bound to write a judgment in accordance with the provisions of Section 574 of the old Code. Reliance is placed on decisions in Rami Deka V/s. Brojo Nath Saikia 25 C. 97 : 1 C.W.N. 692; Put tapa V/s. Yellappa 5 Bom. L.R. 233 and Rakhal Chandra Tewari V/s. Satindra Deb Rai 5 C.L.J. 348. The latter case, however, merely followed the first mentioned case and the appeal was decided on another ground. The two first mentioned cases, however, are clear authorities for the appellant's contention, though the reason that led the learned Judges to adopt the view, that they did adopt, are not stated in either case. Speaking for myself, and with the greatest respect, I cannot agree with that view though it is not necessary in this case to decide the appeal upon this point. Section 551 enacts that " the appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without serving notice on the respondent. " This seems to me a perfectly complete and self-contained section, which stands in no need of being read with or controlled by Section 574. Section 574 enacts how the judgment is to be drawn up. It clearly refers to the preceding section and is explanatory of that section. That section authorises the Court " after hearing the parties or their pleaders and referring to any part of the proceedings to which reference may be considered necessary " to pronounce judgment. It comes almost at the end of the chapter and refers, in my opinion, solely to appeals regularly heard, in which both parties have appeared or had a chance of appearing. The section does not authorise a Judge to pronounce judgment until he has heard the parties or their pleaders; if they appear, and this provision seems to me inconsistent with the provision of Section 551 under which the appeal may be dismissed without notice to the respondent at all.