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Sib Chunder Mullick Vs. Kissen Dyal Opadhya and anr.
Court : Kolkata
Reported in : (1876)ILR1Cal477
Richard Garth, C.J.1. We are of opinion that a Court of Small Causes, constituted under Act IX of 1850, can, during the same day, and at the same sitting of the Court, ex parte restore a cause once struck out under Section 42, though the order for striking off may have been duly recorded.2. It is always, of course, open to the defendant in such a case to apply to the Court upon sufficient grounds to set aside the ex parte order; and the sufficiency of such grounds would in each case be a question for the discretion of the Judge.3. The sum of Rs. 230, which has been brought into Court by the plaintiff in this case, will be refunded to him....
Tag this Judgment!In Re: Land Acquisition Act (X of 1870)
Court : Kolkata
Reported in : (1877)ILR2Cal104
Richard Garth, C.J.1. In this case I think that the learned Judge in the Court below has not done full justice to the owners of the property. He has substantially adopted the valuation of the Collector; and has made his award upon the supposition that the fair mode of estimating the price of the property in the market is to capitalize its present rental at so many years' purchase.2. I consider that, having regard to the evidence on both sides, this is not a fair way of arriving at the market value. Where Government takes property from private persons under statutory powers, it is only right that those persons should obtain such a measure of compensation as is warranted by the current price of similar property in the neighbourhood without any special reference to the uses to which it may be applied at the time when it is taken by the Government, or to the price which its owners may previously have given for it. Of course, if it can be satisfactorily shown that the purposes to which the ...
Tag this Judgment!Bassider Ruhman Khondkhar and anr. Vs. Rajendronath Mookhopadhya
Court : Kolkata
Reported in : (1877)ILR2Cal147
Richard Garth, C.J.1. We are of opinion that, in the case of a ryot of the class specified in the question referred to us,--i.e., a ryot whose tenancy can only be determined by a reasonable notice to quit expiring at the end of the year,--the ryot can claim to have a suit for ejectment brought against him by his landlord dismissed on the ground that he has had no such notice....
Tag this Judgment!Tukaram BIn Atmaram Vs. Ramchandra BIn Budharam
Court : Mumbai
Reported in : (1877)ILR1Bom314
Michael Westropp, C.J.1. The plaintiff claims under a mortgage of the 27th November 1871 for Rs. 50, which was unregistered and unaccompanied by possession. The defendant claims under a mortgage of the 17th March 1873 for Rs. 150, which was registered, and which was accompanied by possession. The plaintiff has not alleged that the defendant, when he took his mortgage with possession, had notice of the plaintiff's unregistered mortgage; and the plaintiff not being in possession, and his mortgage being unregistered, there cannot be any presumption that the defendant had any such notice. Further, the plaintiff obtained, on the 20th February 1874, in a suit instituted in 1873, a money-decree against the mortgagors (but not in respect of the mortgage) for Rs. 100, and caused the mortgaged property to be attached and sold by the Court. The defendant (being in possession as a mortgagee of 1873) purchased the mortgaged premises for Rs. 86 at that sale on the 17th September 1874, and holds an u...
Tag this Judgment!Koegler and ors. Vs. the Coringa Oil Company, Limited
Court : Kolkata
Reported in : (1876)ILR1Cal466
Richard Garth, C.J.1. The first point which we have to decide is that which was argued before Phear, J. in the Court below, and his judgment upon which is reported in the January number of the Indian Law Reports I.L.R. 1 Cal page 47.2. The defendant contends, that the contract upon which this suit is founded is one of the class described in the 1st Exception of Section 28 of the Contract Act, and, consequently, that as the dispute which has arisen between him and the plaintiffs remains undecided by arbitration, no suit can be brought upon it, except for a specific performance of the agreement to refer. Certainly, as Phear, J. very truly observes, the plaintiffs, if this were so, would be in an unfortunate position, because the defendant has distinctly refused to refer the dispute to arbitration; and, as according to the present law, no suit will lie to compel him to refer, the defendant, if he is right in his contention, may, by his own breach of the contract, deprive the plaintiffs of...
Tag this Judgment!Reg Vs. Sambhu Raghu
Court : Mumbai
Reported in : (1877)ILR1Bom347
1. The Acting Sessions Judge has considered this, case very carefully, and the Court agrees in his conclusion. The Court does not find it established that there is any valid custom by which a woman of the caste of the first accused can claim a right to marry again, because her husband is a leper, and without having obtained a release from him. The Court does not recognize the authority of the caste to declare a marriage void, or to give permission to a woman to re-marry. The wife in this case, and the appellant, who performed the ceremony of re-marriage, probably acted in a bond fide belief that the consent of the caste made the second marriage valid; but though that circumstance may be taken into account in mitigation of punishment, it does not constitute a defence to a charge under Section 494 of the Indian Penal Code, or under that section combined with Section 109 of the Code. The Court confirms the conviction; but, as the appellant has already undergone imprisonment for 25 days, i...
Tag this Judgment!In Re: Juggut Chunder Chuckerbutty
Court : Kolkata
Reported in : (1877)ILR2Cal110
Markby, J.1. The Sessions Judge is quite right in supposing that this Court would not ordinarily interfere with the discretion of Magistrates, as to the amount of security to be taken in cases of this kind. The Magistrate is in a much better position than this Court for judging what would be the proper amount of security, which must vary with the danger to be apprehended and the means of the parties. But the Magistrate cannot make an order that is altogether unreasonable. Here the Magistrate, although there has been as yet no breach of the peace, and apparently no very strong determination to resort to violence, has required the parties to enter into bonds amounting altogether to upwards of Rs. 60,000. The parties do not appear to be wealthy; and had the security ordered been really required, in all probability it could not have been furnished. We find, however, that one of the parties, who has been accepted as surety for Es. 5,000, is described as a kotwal and another as a mookhtear, ...
Tag this Judgment!Macgillivray Vs. the Jokai Assam Tea Company
Court : Kolkata
Reported in : (1877)ILR2Cal33
Richard Garth, C.J.1. We are of opinion that, with reference to the express terms of the written agreement entered into on the 12th of January 1876, the plaintiff distinctly undertook that he would, 'whenever required to do so, render just and true accounts, and give every other particular and information of all moneys, goods, and chattels, merchandise, and other products and things entrusted to him, or that might come into his possession, power, or custody, or under his control;' and we think that the defendant company ought to have been allowed to go into evidence to show that the plaintiff was not reasonably competent to the task which he undertook. In deciding thus, we act in accordance with the principle laid down in the case of Harmer v. Cornelius 5 C.B.N.S. 236 : S.C 28 L.J.C.P. 85. The passage as to the crossing--sweeper, quoted by the Judge of the Small Cause Court from the judgment of Willes J. has no application to the present case. The crossing-sweeper is stated to have bee...
Tag this Judgment!Manraj Mahton Vs. Nathuni Mahton
Court : Kolkata
Reported in : (1877)ILR2Cal150
Richard Garth, C.J.1. We think that, having regard to the evidence, the lower Court has rightly held that the family of the plaintiff is still joint, and that there has been no partition of there family property as alleged in the plaint.2. That being so, it only remains for us to decide the question of law raised by the defendant, viz., that the present suit is not maintainable, and should be dismissed upon that ground.3. We think that this contention is well founded, and we find that the question has been settled by several authorities--Rajaram Tewari v. Lachman Pershad 4 B.L.R. A.C. 118 Sheo Churn Narain Sing v. Chukraree Pershad Narain Sing 15 W.R. 436 and Cheyt Narain Sing v. Bunwaree Sing 23 W.R. 395.4. The decision referred to by the lower Court does not support the view which the Subordinate Judge takes; in fact, it rather supports the contrary view, because it decides that one out of several members of a joint Hindu family is entitled to recover the whole of the joint property ...
Tag this Judgment!AdjeIn Dooply and anr. Vs. Ahmed Mahomed Pattel
Court : Kolkata
Reported in : (1877)ILR2Cal324
Richard Garth, C.J.1. It is now further contended that, assuming the plaintiffs are entitled to the shares, their present claim is barred by limitation. The plaintiffs (no doubt foreseeing this difficulty) have attempted to guard against it in their plaint by stating that the shares were held for them by Seedat in trust; and we observe that the learned Recorder has so dealt with the case, and has considered that, upon this ground, the suit is not barred by limitation.2. We feel great difficulty in adopting this view; and even if we could look at the transaction in the light of a trust, we do not see that there would be any answer to the plea of limitation.3. If the facts proved by the plaintiffs gave rise to any trust, it would clearly not be 'an express trust,' or, in other words, 'a trust for any specific purpose,' within the meaning of Section 10 of the Limitation Act. It could only be one of those implied trusts, which result from particular relations existing between parties not c...
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