Mumbai Court January 1927 Judgments
Emperor Vs. Basavaneppa Basava
Court: Mumbai
Decided on: Jan-31-1927
Reported in: AIR1927Bom361; (1927)29BOMLR488; 101Ind.Cas.595
Fawcett, J.1. In this case it appears from the Magisterial record that the pleader for the appellant was heard at the time of presenting the appeal ; the papers of the case were then called for and, after the Magistrate had perused them, the appeal was summarily dismissed without giving any further hearing to the appellant's pleader.2. It is contended for the applicant that the appeal was not properly heard under Section 421 of the Criminal Procedure Code, which provides that 'no appeal presented under Section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.'' There are no doubt decisions-Lalit v. King-Emperor (1925) 42 C.L.J. 551 and Surendra v. King-Emperor (1925) 42 C.L.J. 554-that under Section 421 the appellant or his pleader must be heard after the record is sent for. I am not myself prepared to go as far as that, because the section does not say that the pleader must have a reasonable opportunity o...
Tag this Judgment!Hatimbhai Hassanally Vs. Framroz Eduljee Dinshaw
Court: Mumbai
Decided on: Jan-31-1927
Reported in: AIR1927Bom278; (1927)29BOMLR498
Amberson Marten, Kt., C.J.1. The first and principal question of the five questions submitted to this Full Bench is : 'Whether a suit brought by a mortgagee of land to enforce his mortgage by sale is a 'suit for land' within the meaning of Clause 12 of the Letters Patent.' It will be noticed that the question has been deliberately confined to enforcing a mortgage by sale. That is the relief asked for in the present suit, and that is the relief ordinarily asked for on the Original Side. Indeed it was even said during the hearing that many Judges in this Court have refused to grant foreclosure at all. And personally I do not remember any case in which I was asked to pass a foreclosure decree, although I must have had hundreds of mortgage suits before me at various times during the last ten years.2. Clause 12 of the Letters Patent runs as follows :-And we do further ordain that the, said High Court of Judicature at Bombay, in the exercise of its ordinary original civil jurisdiction, shall...
Tag this Judgment!Rajaram Tukaram Vs. the Central Bank of India Limited
Court: Mumbai
Decided on: Jan-31-1927
Reported in: (1927)29BOMLR659
Amberson Marten, C.J.1. Having regard to the decision of the Full Bench, and the final result in Hatimbhai v. Framroz Dinshaw(1), it follows that this Appeal No. 56 of 1926 must also be dismissed.2. I would add that although technically this appeal was not actually before the Full Bench, yet the same leading counsel appeared as in the Full Bench Appeal No. 15 of 1926, It was only not put formally before the Full Bench because it was an appeal from my brother Fawcett who heard the case in the trial Court.3. The appeal will be dismissed with costs. Liberty to the mortgagee to add the costs to his security....
Tag this Judgment!Bhikaji Mahadev Gund Vs. Balvant Ramchandra Kulkarni
Court: Mumbai
Decided on: Jan-28-1927
Reported in: AIR1927Bom510; (1927)29BOMLR1046
Amberson Marten, C.J.1. The present Suit No. 749 of 1923 is brought by one Bhikaji against one Kulkarni to set aside a decree obtained by Kulkarni in Suit No. 750 of 1918. The ground is that a fraud was perpetrated on the Court in the 1918 suit. The trial Judge in the present case has found in favour of Kulkarni, because he considered the matter was res judicata, seeing that the alleged new evidence was mentioned to the High Court in second appeal before the High Court eventually dismissed that second appeal. The lower appellate Court in the present suit arrived at the same conclusion, not on the ground of res judicata, but on a different ground. The learned Judge held in effect that the present suit was an attempt to have a re-hearing of the previous suit on the same allegations of perjury, and that consequently on that ground it ought not to proceed. Looking at the plaint in the present case, it will be found that the particulars of the alleged fraud as set out in paragraph 3 are ext...
Tag this Judgment!Kalu Karim Vs. City Municipality of Broach
Court: Mumbai
Decided on: Jan-27-1927
Reported in: AIR1927Bom527; (1927)29BOMLR1041
Amberson Marten, C.J.1. The short question before us is the right of the defendant Municipality to levy a terminal tax on fruits brought into their area. The plaintiffs contend that the necessary requirements of the Bombay District Municipal Act 1901 have not been complied with, and that therefore the levying of this tax is ultra vires. The trial Judge decided in their favour, and granted a declaration and an injunction accordingly. On appeal the lower appellate Court reversed that decision and dismissed the suit.2. Before us issues 1, 2 and 3 in lower appellate Court are not contested. That is to say, the Municipality no longer contends that the suit is barred by limitation, or that no proper notice was given prior to the suit. On the other hand, the appellants do not contend that fruits are vegetables within the meaning of the Terminal Tax Rules.3. We are, therefore, left with the bare point of law raised by issue 4 as to whether the requirements of the Act were complied with before ...
Tag this Judgment!Shriram Vithuram Vs. Trimbak Amolakchand
Court: Mumbai
Decided on: Jan-24-1927
Reported in: AIR1927Bom514; (1927)29BOMLR1036; 103Ind.Cas.645
Amberson Marten, C.J.1. On April 20, 1921, defendant No. 1 entered into a contract at Jalgaon with the plaintiff by which he sold 440 tins of groundnut oil at Rs. 7-4-0 per tin deliverable at Salem by the agent of the defendant. The terms of payment were that Rs. 7-1-0 were to be paid to the defendant's agent as Salem, less Rs. 500 already paid by the defendant to that agent, and that the remaining 3 annas plus Rs. 500 were to be paid to the defendant at Jalgaon, This contract was an oral one, but on the same day the defendant handed to the plaintiff a delivery order, Exhibit 15, on the defendant's agent at Salem. In fact the goods were not in the custody of the agent on that date, as they had already been delivered by him to the railway company for transit to Jalgaon. This was in accordance with his instructions, and it is not suggested that he committed any breach of duty to his own principal in so doing. On the other hand neither party knew at the date of the contract that the goods...
Tag this Judgment!Maneklal Girdharlal Soni Vs. Mahipatram Mansukhram Patel
Court: Mumbai
Decided on: Jan-24-1927
Reported in: AIR1927Bom492; (1927)29BOMLR1109; 103Ind.Cas.898
Amberson Marten, Kt., C.J.1. In my referring judgment I have indicated some of the difficulties which appear to me to exist in construing Section 21 of the Dekkhan Agriculturists' Relief Act. But the decisions there cited show that Sir Norman Macleod and Mr. Justice Coyajee in a series of cases have decided that Section 21 exempts from arrest in execution of a money decree any defendant who was an agriculturist at the time of the arrest. I have had the advantage of reading the judgments of my brothers Crump and Patkar which arrive at the game conclusion. The wording admits of that view being taken, and under all the circumstances I am not prepared to dissent from their opinion as to the true construction of the section, although personally I might have arrived at a different conclusion, had I been sitting alone, and the matter had been res integra. But I do so irrespective of the words 'passed whether before or after this Act comes into force,' which were added by Section 8 of Act XXII...
Tag this Judgment!Emperor Vs. Zipru Tanaji Patil
Court: Mumbai
Decided on: Jan-21-1927
Reported in: (1927)29BOMLR484; 101Ind.Cas.604
Fawcett, J.1. The applicant in these cases has been convicted of the offence of mischief under Section 426, Indian Penal Code, and sentenced in one case to a fine of Rs. 10 and in the other case to one of Rs. 25. He was prosecuted in respect of his having dismantled certain stone dams that had been constructed by the two complainants to protect their fields from the adjacent river water, and evidence was given that thereby certain loss has been caused to these two complainants. The defence of the applicant was that he had a right of way for his carts which was obstructed by these dams, and he had obtained an injunction from the Mamlatdar's Court at Chalisgaon restraining the complainants from so obstructing him. As the complainants did not remove the dams which were obstructing his way, he had the dams removed. The Magistrate held that that was not a sufficient defence, that he had his legal remedy, in case the injunction was not complied with, of taking action under Sub-section (4), S...
Tag this Judgment!Sonaton Pal Vs. Galstaun
Court: Mumbai
Decided on: Jan-21-1927
Reported in: (1927)29BOMLR844
Phillimore, J.1. Their Lordships do not require to hear counsel for the first respondent, who alone appears.2. This is an action brought by the first respondent, the plaintiff, to enforce against the estate of one, Sookias deceased, an equitable mortgage by deposit of deeds accompanied by a letter or memorandum explaining the deposit. The contesting defendant, who is the present appellant, was a judgment creditor of the estate of the deceased, and interested, therefore, in disputing the validity of this mortgage, which, as the accounts have now been agreed, would, if valid, exhaust or nearly exhaust the whole property. His case was that there was no such equitable mortgage; that there was no such deposit of deeds on the date mentioned, if ever, and that, at any rate, it was not a deposit to secure a debt; if it was a deposit at all, it was for other purposes; but in substance he denied that there had ever been a deposit and he said that the alleged letter accompanying the deposit was a...
Tag this Judgment!Emperor Vs. Sitaram Narayan Ghogle
Court: Mumbai
Decided on: Jan-19-1927
Reported in: AIR1927Bom360; (1927)29BOMLR480
Fawcett, J.1. A preliminary objection was taken in this case that the Sessions Judge had no jurisdiction to make this reference. He has in January 1926 refused to make any reference in the case, and it is contended that the present reference is therefore practically a review of that decision. On the other hand, the ground of the reference is based on subsequent facts which came to the knowledge of the Sessions Judge, and it seems to me that Section 438 of the Criminal Procedure Code permits a reference in such a case, even although the Sessions Judge may have before that seen no reason to interfere after examination of the case in the ordinary way under Section 435. The wide words 'or otherwise' are put in to meet exceptional cases; and there might, for instance, be a case where there was clear evidence of some gross miscarriage of justice having occurred, which ought to be brought to the notice of the revisional Court, although, in the absence of knowledge of such evidence, an applica...
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