Mumbai Court February 1923 Judgments
Keshavlal Brothers and Co. Vs. Divanchand and Co.
Court: Mumbai
Decided on: Feb-27-1923
Reported in: (1923)25BOMLR854
Atkinson, J.1. This is an appeal from a decree of the High Court of Bombay in its appellate jurisdiction, dated February 23, 1920, reversing a decree of a single Judge of the said Court in its original jurisdiction dated June 26, 1919.2. The suit out of which the appeal arises was instituted by the appellants, as plaintiffs, against the respondents claiming over Rs. 40,000 damages for breach of a contract for the sale of steam coal. The suit was decided by the trial Judge in the plaintiffs favour. He assessed the damages at Rs. 17,508-6-5, but that decree was set aside by a Division Bench of the High Court (Macleod C. J. and Heaton J.) which allowed the appeal and dismissed the suit on the ground that in the special circumstances which existed no damage had been suffered by the plaintiffs.3. The main question for determination by this Board is whether in these circumstances the appellants are entitled to the sum of Rs. 17,508-6-5 awarded to them by the trial Judge or are, as decided by...
Tag this Judgment!The Bombay Sizing and Stores Supplying Co. Vs. V.B. Kusumgar and Co.
Court: Mumbai
Decided on: Feb-26-1923
Reported in: AIR1924Bom227; (1923)25BOMLR310; 84Ind.Cas.74
Norman Macleod, Kt., C.J.1. [After setting out the facts, his Lordship proceeded:] The application seems to be based on Order XLI, Rule 27, of the Civil Procedure Code, which corresponds to Section 568 of the Code of 1882. Order XLI, Rule 27, is as follows:The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if-(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or(b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,the appellate Court may allow such evidence or document to be produced, or witness to be examined.2. It is argued that the words in Sub-rule 1(b) 'or for any other substantial cause' would justify the Appeal Court in entertaining an application of this character; and if a party can satisfy the Court that since the fil...
Tag this Judgment!Wilhelmina Codd Vs. Bertie Elijah Codd
Court: Mumbai
Decided on: Feb-26-1923
Reported in: AIR1924Bom132; (1923)25BOMLR339; 84Ind.Cas.71
Marten, J.1. After setting out the facts the judgment proceeded. The husband applied to the Court on the first hearing of the wife's application to make absolute the rule nisi, and he then put forward certain grounds why he had not been present at the trial in January, and why I should hear his own petition and hear him in defence to his wife's petition. But he had not appealed from the decree nisi, nor had he appealed from the Chamber Judge's order, and in view of limitation he was out of time with the remedies which might at one time have been open to him. Further, as far as this Court is concerned, there still remained unsatisfied the Chamber Judge's order for security for coats. Accordingly, technically he was in contempt, and he could not strictly speaking be heard, more especially, as there was a judgment against him on his own petition dismissing his petition, and another judgment against him on the wife's petition for a decree nisi.2. Now, under these circumstances, the positio...
Tag this Judgment!Hurbut John Amies Vs. Jal P. Virji
Court: Mumbai
Decided on: Feb-26-1923
Reported in: AIR1924Bom41; (1923)25BOMLR778
Pratt, J.1. The plaintiff sues the defendant for damages in respect of a contract for the sale of a motor car.2. The contract is for sale by the defendant to the plaintiff for Rs. 4,000 of which Rs. 1000 had already been paid and the balance was payable in monthly instalments of Rs. 250 on the 5th of May, and of each succeeding month.3. But the contract of sale contained certain very special conditions. These were:-that the buyer will pay instalments punctually ; that after delivery of the car the seller had a right to enter upon the premises where the car was and inspect the car; that the purchaser was not to dispose of the car before the full price was paid; that the purchaser was to insure the car and assign the policy to the seller ; that in default of observance by the buyer of any of the conditions aforesaid the seller had the right to determine the contract and to seize and take possession of the car.4. The word 'hire' is not used in the contract and it is not a hire purchase ag...
Tag this Judgment!Nadershaw Sheriarji Rabadi Vs. Shirinbai Bapuji Musa
Court: Mumbai
Decided on: Feb-25-1923
Reported in: AIR1924Bom264; (1923)25BOMLR839; 87Ind.Cas.129
Fawcett, J.1. After expressing conclusions on questions of fact as summarised above the judgment proceeded : I first take up the question about Awabai's costs in Suit No. 13 of 1917. As already mentioned, the decree in this suit was passed on July 17, 1919, and Awabai's costs were taxed at Rs. 1494-12-0 in November 1919, Ex. I. There is no specific provision in the mortgage deed for the payment of any costs of litigation, but Mr. Inverarity for the plaintiffs relies upon the ordinary law of mortgage by which a mortgagee can tack on to the mortgage debt coats of litigation properly incurred by him in supporting the mortgagor's title, etc, Mr. Desai, on behalf of the defendant, has raised various objections, which I will consider in due order.2. His first contention is a general one, that these costs were not in any case payable by the mortgagor on October 14, 1919, because they had not been actually ascertained, the allocatur of the Taxing Master not having been given until some time in...
Tag this Judgment!Bala Raghu Dhanwade Vs. Bhiku Genu Jambhale
Court: Mumbai
Decided on: Feb-23-1923
Reported in: AIR1923Bom412; (1923)25BOMLR450; 73Ind.Cas.125
Norman Macleod, Kt., C.J.1. The learned Judge varied the decree of the trial Court on account of the promissory note sued on not being sufficiently stamped. There is no reference in the judgment to the Full Bench decision in Devachand v. Hirachand Kamaraji I.L.R. (1889) 13 Bom. 449 and the decision in Shiddapa v. Irava I.L.R. (1893) 18 Bom. 737 which decided that when a document has been admitted in evidence in the trial Court, it cannot be called in question in the same suit on the ground that the document was not duly stamped. This is now provided by Section 36 of the Indian Stamp Act of 1899 which corresponds with Section 34, proviso III, of the Act of 1879, on which those decisions were based. We, therefore, allow the appeal and restore the decree of the trial Court with costs throughout....
Tag this Judgment!Babaji Ramling Gurav Vs. Appa Vithavja Sutar
Court: Mumbai
Decided on: Feb-23-1923
Reported in: AIR1924Bom154; (1923)25BOMLR789
Pratt, J.1. The plaintiffs are held to have acquired an easement to water flowing from springs in defendants' land through the small watercourse S O T into the larger watercourse L J M and thence to their own lands.2. Defendants had obstructed this easement by darning the mouth of S O T at A B and by cutting a channel A C whereby the water held up behind the dam was conducted to their fields on the other side of the main watercourse.3. The easement is admitted before us and there is no complaint as to injunction granted as regards the dam A B and the channel A C.4. Two points, however, are raised in this appeal (1) as to the trench H I G, (2) the underground drain F E D.5. Now 1 do not understand why there should be any complaint about H. I. G. When defendants dammed the small watercourse S O T at A B, it was necessary to provide another outlet. Otherwise the accumulated water iu S O T might have overflowed. With this object the trench H I G was out. Now that the dam A B is removed the...
Tag this Judgment!Dhondi Subhane Power Vs. Secretary of State for India
Court: Mumbai
Decided on: Feb-23-1923
Reported in: AIR1923Bom478; (1923)25BOMLR785
Pratt, J.1. The plaintiff sued for a declaration that the order of forfeiture made by the Collector on March 10, 1915, was invalid. The order of forfeiture was made under the following circumstances:2. The predecessor-in-title of defendants Nos. 2 to 8 had in the year 1885 alienated their Vatan land to the plaintiff'. After the death of the alienor, the defendants applied to the Collector to take proceedings for the protection of the Vatan and the Collector, on October 5, 1904, made a declaration under Section 11 of Bombay Act III of 1874 that the alienation was null and void.3. Thereafter there were two courses open to the Collector under Section 11 -either (1) to summarily resume possession of the land; or (2) to assess it at the rate prescribed under Clause 2 of Section 9, i.e., at the full rent ordinarily paid by tenants of land of similar description in the same locality.4. The Collector acted on the second alternative and decided not to summarily resume possession but to assess t...
Tag this Judgment!Dagadu Govinda Bodake Vs. Sakubai Nana Bodake
Court: Mumbai
Decided on: Feb-23-1923
Reported in: AIR1924Bom31; (1923)25BOMLR806; 73Ind.Cas.369
Norman Macleod, Kt., C.J.1. The plaintiff sued to obtain possession of the properties described in para 1 of the plaint and for an injunction against the defendants, alleging that the lands were the ancestral property of her deceased husband Nana and his brothers defendants Nos. 1 and 2; that they were divided after the family became separate and enjoyed separately by each member. The defendants contended that the lands were ancestral and jointly acquired, that they were in possession, and that there had been no partition as alleged by the plaintiff. It has been proved that there was a division of the greater part of the family property, and also that the three brothers commenced to live separate. That would indicate an intention of the members of the family to sever in interest. In Ramalinga v. Narayana : (1922)24BOMLR1209 ., their Lordships said, after expressing disapproval of the argument that the joint family status was not dissevered until a decree for partition was passed,This v...
Tag this Judgment!Dagadu Govind Bodake and anr. Vs. Sakhubai Nana Bodake
Court: Mumbai
Decided on: Feb-23-1923
Reported in: (1923)ILR47Bom773
Norman Macleod, Kt., C.J.1. The plaintiff sued to obtain possession of the properties described in para. 1 of the plaint and for an injunction against the defendants, alleging that the lands were the ancestral property of her deceased husband Nana and his brothers, defendants Nos. 1 and 2; that they were divided after the family became separate and enjoyed separately by each member. The defendants contended that the hinds were ancestral and jointly acquired ; that they were in possession, and that there had been no partition as alleged by the plaintiff. It has been proved that there was a division of the greater part of the family property, and also that the three brothers commenced to live separate. That would indicate an intention of the members of the family to sever in interest. In Ramalinga Annavi v. Narayana Annavi (1922) 45 Mad. 489, their Lordships said, after expressing disapproval of the argument that the joint family status was not dissevered until a decree for partition was...
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