Kolkata Court June 1880 Judgments
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The Empress Vs. Allen and ors.
Court: Kolkata
Decided on: Jun-15-1880
Reported in: (1881)ILR6Cal83
Mr. Piffard1. The Provisions of Section 72 point out clearly the officers who are to have jurisdiction over European British subjects. The Magistrate in this case had no jurisdiction. [Jackson, J.-- Your clients have waived their privilege; they cannot now say that the Magistrate had no jurisdiction.] Section 72 does not confer a privilege which can be waived so as to give jurisdiction. Consent cannot give jurisdiction-Foy's case (1 Tay. and Bell, 219). [JACKSON, J.--That case was decided before the Criminal Procedure Code was passed. Does not Section 84 afford a complete answer to your present contention. ?] I submit not. The principle that consent cannot give jurisdiction is one that has governed the Courts for years. The Legislature has not abolished the principle; it has merely said, that if the claim is not made, the person charged ' shall be held to have waived his privilege as such British subject.' It has not denned the consequence of such waiver, nor said that waiver shall cre...
Mohesh Lal Vs. Busunt Kumaree
Court: Kolkata
Decided on: Jun-15-1880
Reported in: (1881)ILR6Cal340
Maclean, J.1. (after shortly stating the nature of the suit and defence, continued):--The first point in the defence filed by the Collector on behalf of the defendants is a denial of the alleged statement of account by the defendant on the 13th Bhadro 1282 (30th August 1875), and the Subordinate Judge embodied this plea in the third issue, and decided against the plaintiff, in favor of the defence. The first nine paragraphs of the petition of appeal attack this finding. We propose to dispose of this part of the case before entering upon a consideration of the intricate questions raised in the other grounds of appeal and in the able arguments which have been addressed to us. [His Lordship then went into the evidence on this portion of the case, and as to that affirmed the judgment of the Court below.]2. But then comes the question (assuming this account of 1875 not to be proved), whether so much of the plaintiff's claim as became due more than three years before suit, is barred by limit...
In Re: D. Cowie and anr.
Court: Kolkata
Decided on: Jun-14-1880
Reported in: (1881)ILR6Cal70
Wilson, J.1. The insolvents in this case, Messrs. David Cowie and John Cowie, with Bazette Colvin, were the partners in the firm of Colvin, Cowie, and Co. This case was heard on the 8th, 9th, and 10th instants; and the question for decision is, whether the insolvents are entitled to their personal discharge.2. The firm is one of old standing. From the year 1869, the partners have been the three gentlemen I have named.3. Down to the year 1874, the firm carried on business as merchants, business in goods on commission, and business as bankers and agents.4. Between 1871 and 1874 they sustained heavy losses, in consequence of unsuccessful consignments of goods to Europe. At this time, Mr. David Cowie, the senior partner, was in Europe. In August 1874, he returned to Calcutta. The losses sustained during the period I have mentioned are stated by Mr. David Cowie to have amounted to Rs. 5,00,000. This amount afterwards resolved itself into three heads:-(i) a sum of about Rs. 2,00,000, which s...
Peary Lall Mozoomdar Vs. Komal Kishore Dassia
Court: Kolkata
Decided on: Jun-10-1880
Reported in: (1881)ILR6Cal30
Morris, J.1. We cannot pass the order asked for, authorizing by District Judge of Rungpore to try the appeal.2. It appears that the suit was tried by the Subordinate Judge of Rungpore. Before the appeal was made, the land which formed the subject-matter of the suit was transferred to the district of Pubna, and the District Court of Pubna, consequently, alone had jurisdiction to hear the appeal. The appeal, however, was inadvertently filed in the District Court of Rungpore, where, no doubt, it can more conveniently ' be tried. But we can, under Section 25 of the Code of Civil Procedure, direct the transfer of an appeal only from a Court having jurisdiction to receive and try it. We have no power to authorize any Court to assume jurisdiction to receive and hear an appeal contrary to the usual course prescribed by the Code. We, therefore, leave the appellant to take the necessary steps to place his appeal in the Pubna Court, and he can then renew his application to us, which is otherwise ...
Ramkant Roy Chowdhry Vs. Kristodass Kundoo and anr.
Court: Kolkata
Decided on: Jun-10-1880
Reported in: (1881)ILR6Cal142
Prinsep, J.1. (who, after stating the facts as above, continued):-The first objection is, that the suit is barred by limitation under Article 15 or Article 16, sch. ii, Act IX of 1871, because it has not been instituted within one year from the order of the Judge, dated 13th May 1876, or that of the Collector, dated 16th idem, rejecting the mortgagee's applications. We have, however, no doubt that these articles do not apply, inasmuch as in neither case was there any order passed adverse to the mortgagee's right after any adjudication thereof. The orders passed simply amounted to a declaration, that neither the Judge, nor the Collector, considered that he had jurisdiction to act as desired. The general law of limitation for suits to establish a right would, therefore, apply to the present suit, and under that law the suit is not barred.2. The main objection pressed on us by Mr. H. Bell, who appears as counsel for the appellants, is, that this suit is barred by Section 7, Act VIII of 18...
Almas Banee and ors. Vs. Mahomed Ruja and ors.
Court: Kolkata
Decided on: Jun-10-1880
Reported in: (1881)ILR6Cal239
Morris, J.1. This is a case referred by the Sudder Munsif of Sudharam, under Section 617 of the Code of Civil Procedure, raising the question of the date of payment fixed in a bond as governing the application of the law of limitation.2. The date for payment of the money due under the bond is entered in it as the 30th Pous 1283. The month of Pous varies, sometimes containing twenty-nine and sometimes thirty days. In the year 1283 the month of Pous contained only twenty-nine days, and the 29th, or the last day of Pous, corresponded with the 12th January.3. The present suit, to realize the money due on this bond, was brought on the 13th of January 1880, and the point submitted to us is, whether the suit has been brought within three years from the date on which the money became payable.4. The Munsif states as his opinion, that 'the parties never intended that the day of repayment should be in the month of Magh. By '30th Pous' the parties, according to the custom of the country, evidently...
Ajoodhya Pershad and ors. Vs. Gunga Pershad and anr.
Court: Kolkata
Decided on: Jun-10-1880
Reported in: (1881)ILR6Cal249
Pontifex, J.1. We agree with the Court below that the plaint was insufficiently stamped under Article 17 of the Court Fees Act, Clause. 3.2. Preliminary objections were taken to the appeal, on the ground that the order of the lower Court was final under Section 12 of the Court Pees Act, which enacts, that 'every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit.'3. But of Section 588 of the Civil Procedure Code, as it originally stood, Clause. (c)t provided that an order under Section 54, Clause. (b)--being such an order as the present is--should be appealable, thereby removing the finality declared by Section 12 of the Court Fees Act.4. A second preliminary objection taken was, that although by Section 588, Clause (b), an app...
Mullick Ahmed Zumma, Alias Tetur Vs. Mahomed Syed
Court: Kolkata
Decided on: Jun-09-1880
Reported in: (1881)ILR6Cal194
Pontifex, J. 1. In this case there seems to have been a decree for possession with costs against three defendants. Inasmuch as possession was claimed by only one of the defendants that defendant alone appealed and was successful before the Judge. But the plaintiff appealed to this Court, and obtained a decree restoring the decision of the first Court. The Judge in the Court below has relied on the case of Hur Proshad Roy v. Enayet Hossein (2 C.L.R., 471), in which it was held that an appeal by one defendant did not prevent time from running for the purpose of executing the decree against the non-appealing defendants. 2. The reason why in that case it was held that limitation would apply, was because the appeal there was on the part only of a ten-pie shareholder of the property, leaving the decree capable of execution against the remainder of the property, which could not be affected by the result of that appeal. But in the present case the appeal of the one defendant related to the who...
Ramdut Singh Vs. Ghursobhit Ahir
Court: Kolkata
Decided on: Jun-08-1880
Reported in: (1880)ILR5Cal923
Richard Garth, C.J.1. We think this is a very clear case. The plaintiff sues to eject the defendant from the property in question, after giving him a proper notice to quit. The defendant sets up a right of occupancy which has been found against him in both the lower Courts, and the only ground upon which he contends that he is entitled to the judgment of the Court, is this. In a former suit between the same parties, in which the plaintiff sued him for rent due under a written agreement, he (the defendant) set up this same right of occupancy; that suit was dismissed because the plaintiff failed to prove the agreement; and, having failed to do so, the other point with regard to the defendant's right of occupancy was neither tried nor decided; it was of course not necessary under the circumstances to decide it.2. But the defendant now says that, although that point was neither tried nor decided in the former suit, still, as it might and ought to have been made his ground of defence in tha...
Obhoy Churn Bagchi Vs. Chunder Sikhur Bundopadhyo and ors.
Court: Kolkata
Decided on: Jun-08-1880
Reported in: (1881)ILR6Cal8
Richard Garth, C.J.1. As the relief which has been decreed in these suits is for the specific recovery of land, irrespective of any damages for the plaintiff's dispossession, we consider that the 87th section of Beng. Act III of 1864 does not apply.2. That section, as it seems to us, is applicable only in those cases where the plaintiff claims damages or compensation for some wrongful act committed by the Commissioners or their officers, in the exercise, or the honestly supposed exercise, of their statutory powers.3. The notice in the earlier part of the section is meant to give the defendant the opportunity of making some pecuniary amends for the wrong, without incurring the cost of litigation.4. We think that it could hardly have been the intention of the legislature to allow the Commissioners (even by mistake) to appropriate the lands of private persons without paying for them, and to hold those lands for ever as against the true owners, unless the latter should happen to be suffici...
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