Case: Hari Shankar Vs. Rao Girdhari Lal Chowdhury

Ex. P-20, which contained a material admission by the tenant before the present dispute had begun. The learned single Judge was, therefore, in error in departing from a concurrent finding of fact on a wrong supposition.6. But the question that arises in this appeal is one deeper that a mere appraisal of the evidence. It is whether the High Court in the exercise of its revisional power is entitled to reassess the value of the evidence and to substitute its own conclusions of fact in place of those reached by the Court below. This question required an examination of the powers of revision conferred on the High Court by S. 35 of the Act. That section is one of common occurrence in acts dealing with some special kinds of rights and remedies to enforce them. Section 35 is undoubtedly worded in general terms, but it does not create a right to have the case reheard, as was supposed by the learned Judge. Section 35 follows S. 34, where a right of appeal is conferred; but the second sub-section of that section says that no second appeal shall lie.7. The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under S. 115 of the Code of Civil Procedure, the High Courts powers are limited to see whether in a case decided, there has been assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to Jurisdiction and jurisdiction alone. In other Acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit.8. The phrase "according to law" refers to the decision as a whole, and is not to be equated to error of law or of fact simpliciter. It refers to the overall decision, which must he according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which S. 115 is limited. But it must not be overlooked that the section-in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit,- is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law." It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal.9. The section we are dealing with, is almost the same as S. 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better, than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C. J. (as he then was) in Bell and Co. Ltd. v. Waman Hemraj, 40 Bom LR 125: (AIR 1938 Bom 223 ) where the learned Chief Justice, dealing with S. 25 of the Provincial Small Cause Courts Act, observed :"The object of S. 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does S. 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful part has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at."This observation has our full concurrence.10. What the learned Chief Justice has said applies to S. 35 of the Act, with which we are concerned. Judged from this point of view, the learned single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]That letter does not disclose all the terms of the tenancy, and it would appear, therefore, that the terms of the original tenancy have not been proved in this case and there is no material on which it can be said either way as to whether a right towas conferred upon the tenant. The defendant did not insist in the Court of first instance that there was yet another letter, and the argument to that effect in this Court cannot beclearly shows that the learned Additional District Judge was weighing Ex.as against Ex.and was acting on Ex.which contained a material admission by the tenant before the present dispute had begun. The learned single Judge was, therefore, in error in departing from a concurrent finding of fact on a wrongquestion required an examination of the powers of revision conferred on the High Court by S. 35 of the Act. That section is one of common occurrence in acts dealing with some special kinds of rights and remedies to enforce them. Section 35 is undoubtedly worded in general terms, but it does not create a right to have the case reheard, as was supposed by the learned Judge. Section 35 follows S. 34, where a right of appeal is conferred; but the secondof that section says that no second appeal shall lie.The section we are dealing with, is almost the same as S. 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better, than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C. J. (as he then was) in Bell and Co. Ltd. v. Waman Hemraj, 40 Bom LR 125: (AIR 1938 Bom 223  ) where the learned Chief Justice, dealing with S. 25 of the Provincial Small Cause Courts Act, observedobject of S. 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does S. 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful part has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrivedobservation has our full concurrence.10. What the learned Chief Justice has said applies to S. 35 of the Act, with which we are concerned. Judged from this point of view, the learned single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption.