Kolkata Court February 1928 Judgments
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Mulchand Jhoomer Vs. G.R. Martindale
Court: Kolkata
Decided on: Feb-03-1928
Reported in: AIR1928Cal756
ORDERCostello, J.1. This is an application to vary an order after it has been passed by the Registrar of this Court and entered. In a matter of this kind I think the practice in this country is the same as if is in England namely as laid down by Lord Justice Cotton in the case of In re : Swire Mellor v. Swire [1885] 30 Ch. D. 239 at p. 242, where the learned Lord Justice says:The regular course is this that when an order is settled any party who desired to object to the terms of it as settled should intimate to the Registrar that he intends to give a notice of motion to vary the order. He must state what variation he desires and then he must move the Court, at the risk of costs, to have that variation made. It is the duty of the Registrar at once to pass and enter the order when settled, unless some of the parties-state that they intend to move to vary it. It would cause delay in the Registrar's office it any one, by simply saying 'I object to that form of order' without giving notice ...
MaffizuddIn Bepari Vs. JelaluddIn and ors.
Court: Kolkata
Decided on: Feb-03-1928
Reported in: AIR1928Cal748,110Ind.Cas.448
1. In this case the Subordinate Judge has made an order of remand by setting aside the judgment of the trial Court. His order is not warranted by the law. If he was dissatisfied with the local investigation that was made by the commission and accepted by the trial Court he might have himself issued a commissioner or directed the lower Court to take evidence as provided by Rules 27, 28 and 29 of Order 41, Civil P.C. The order reversing the judgment of the Munsif and sending it back for re-trial is wrong. We are further informed that the observation made by the Subordinate Judge that the landlady or her successor-in-interest should also be made a party is inaccurate and unnecessary, because the landlord was already a party to the suit. Even if the landlord is not a party he would not be bound by the result of the litigation and at the appellate stage the Court ought not to have allowed any third person to be added as a party. The opinion that if necessary the public should be made a part...
Shaik Abdul Karim Vs. Thakurdas Thakur and ors.
Court: Kolkata
Decided on: Feb-03-1928
Reported in: AIR1928Cal844,113Ind.Cas.843
Rankin, C.J.1. The appellant, Shark Abdul Karira was defendant in a suit brought by the plaintiff Thakurdas Thakur to set aside a sale of certain property held in execution of a decree dated 6th June 1922 passed by the Small Cause Court. The plaintiff in the Small Cause Court suit was the respondent. Haji Meah Mahomed and he brought his suit against Sudhamoyee Dasi, mother of Thakurdas Thakur who was at that time a minor and against the minor himself. The suit was brought for the recovery of the balance of sum Rs. 2,000 which was the subject-matter of a document dated 23rd January 1919.2. It appears that the father of the minor was one Ramlal who died in 1903. He left a son Kanai by a wife who had predeceased him, and Thakurdas Thakur was not at that time born. Sudhamoyee, however, after hi3 death gave birth to a posthumous son and under the will of Ramlal his property went to his two sons. A partition suit was brought in 1910 and as a result of that certain premises now in question No...
BepIn Behary Dey and ors. Vs. the Midnapore Zemindary Co., Ltd.
Court: Kolkata
Decided on: Feb-03-1928
Reported in: 110Ind.Cas.444
In all these three appeals there does not seem to be a second appeal. The appeals are, therefore, dismissed.Applications have been presented on behalf of the appellants to the effect that the Subordinate Judge's order remanding the oaBes to the trial Court is without jurisdiction. The suits were dismissed by the Muasif. On appeal by the plaintiff Company the Subordinate Judge decided the issues which were decided against the plaintiffs in their favour and after having done so be made the following order, that these suits be remanded to the lower Court for determining the amount which the plaintiff will get as compensation for the value of the trees cut down and appropriated by the defendants, aud that the parties be permitted to adduce evidence for determining the amount of compensation to which the plaintiff will be entitled. Now the trial Court omitted to try the issue as regards the amount of compensation. It is, however, said on behalf of the petitioners that the evidence on the re...
Sailabala Dasi Vs. Baidya Nath Rakshit and anr.
Court: Kolkata
Decided on: Feb-02-1928
Reported in: AIR1928Cal580,110Ind.Cas.542
B.B. Ghose, J.1. This appeal arises out of a vary novel proceeding before the lower Court. The facts are these: The respondents applied for probate of a will executed by one Jatish Chandra Pal. The appellant in this appeal is his widow. The respondents as well as the appellant were named as executors in the will. The appellant did not apply for probate and so she was joined as opposite party in the application for probate made by the respondents. The lady presented a petition alleging that she did not admit the will nor did she admit that the will had f been properly executed or attested according to law. She, however, stated in para. 6 of her petition that if the will be proved to have been properly executed and attested she was willing and 'claimed' to get the probate as executrix; and in her prayer she said that the petition for probate might be dismissed after taking evidence, or if the will be proved to have been properly executed and attested probate might be given to her jointly...
Tarini Charan Sardar and ors. Vs. Srish Chandra Pal
Court: Kolkata
Decided on: Feb-02-1928
Reported in: AIR1928Cal880
Suhrawardy, J.1. This appeal is by the defendant in a suit for rent in respect of a holding in which the plaintiff claimed rent for a period of four years at the old rate and further claimed enhancement of rent on the ground that in consequence of improvement made at his cost there had been an increase in the productive power of the land. The trial Court held that the value of the land had increased on account of certain improvements made by the plaintiff but that he was not entitled to claim enhanced rent on the ground that the defendant succeeded in raising the presumption in his favour under Section 50(2), Ben. Ten. Act. The plaintiff appealed and the learned Additional District Judge held that in this particular case the tenant was not entitled to the presumption under Section 50(2), Ben. Ten. Act though he had proved payment of rent at a uniform rate for a period of more than 20 years. The reasoning' adopted by the learned Judge is this : In 1890 this Jote along with another was s...
Satu Pramanik and anr. Vs. Joynab Bibi and ors.
Court: Kolkata
Decided on: Feb-02-1928
Reported in: 110Ind.Cas.438
Mukerji J.These two appeals arise out of two suits which were instituted by the plaintiffs to recover arrears of rent. The claim was for rent for the years 1326 to 1329. The suits were dismissed by the trial Court and appeals being preferred by the plaintiffs the Subordinate Judge allowed the appeals and decreed the suits. The main defence of the defendants in these two suits was that the kabuliyats under which they are said to have been holding the lands had been fraudulently obtained from them by undue influence, misrepresentation and fraud; that the plaintiffs' right to receive rent had been suspended in consequence of the plaintiffs having executed a usufructuary mortgage in respect of the lands in favour of certain persons for a period of 16 years and that the said period is still running and that in point of fact the defendants have been paying rent for the said lands to the said mortgagees. The Subordinate Judge has found that the story of the defendants to the effect that the p...
Debendra Nath Roy and ors. Vs. Kartic Prasad Das
Court: Kolkata
Decided on: Feb-01-1928
Reported in: AIR1929Cal68,114Ind.Cas.483
Rankin, C.J.1. In my opinion this rule must be discharged. It appears that the suit was on a bond. The due. date of the bond was in October 1918, and no payment of interest was made within three years. Rs. 101 was paid some 12 days after the expiration of three years from the date limited for payment. The date on which Rs. 101 was paid was 31st October and that at that time it is said that the Court was closed, the plaintiff being in a position that he would be in time to sue if he brought his suit on the reopening day. He did not bring any suit on the reopening day, but in the meantime he took this payment of Rs. 101 and the question now arises whether that payment of interest has saved limitation under Section 20, Lim. Act.2. It is suggested and it may quite well be true -- that but for the payment of the Rs. 101 the plaintiff would have brought a suit on the reopening day; but when one comes to consider this matter one must do it according to the strict principles which govern limit...
Jabbar Ali Sardar and ors. Vs. Monmohan Pandey
Court: Kolkata
Decided on: Feb-01-1928
Reported in: AIR1929Cal110,114Ind.Cas.485
1. The tenants are the appellants in this group of eight appeals which arise out of proceedings under Section 105, Ben. Ten. Act. The respondent landlord claims settlement of fair and equitable rent in respect of the lands of the appellants who have been entered in the Reeord-of-Rights as settled raiyats. The defence mainly was that the defendants were mokarari tenants whose rents were not liable to enhancement. Both the Courts below have held that the jamas are liable to enhancement and settled rents in respect thereof. The Assistant Settlement Officer enhanced the rents under Section 30(b), Ben. Ten. Act, for rise in the price of staple food crop to two and half annas in the rupee. The learned Special Judge reduced it to two annas in the rupee. Except this modification the decisions of the first Court in the cases before us were upheld in appeal.2. Some preliminary objections have been taken before us with regard to the validity of the proceedings in the trial Court which are common ...
Corporation of Calcutta Vs. Asoke Kumar De
Court: Kolkata
Decided on: Feb-01-1928
Reported in: AIR1928Cal743,113Ind.Cas.166
Rankin, C.J.1. In this case the plaintiff Asoke Kumar De sues the Corporation of Calcutta to recover a sum of money which is under Rs. 1,000. His case is that his father Brojo Lal De was an employee of the defendant Corporation, that he was a contributor to the Provident Fund managed by that Corporation and that he died on 27th November 1920, leaving the plaintiff his only son and heir. It appears that besides the plaintiff there were three unmarried daughters and the plaintiff's mother predeceased his father. At the time of the father's death his brother Kunja Lal De, was, according to the defendants, a person, in whose care the plaintiff and the unmarried sisters were living. In that state of things what happened was this : the plaintiff's uncle Kunja Lal De applied to the Corporation for payment of the sum of money standing in the plaintiff's father's credit in the account of the Provident Fund of the Corporation and they acting under Rule 19 of their rules paid that sum of money to...
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