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Act does not apply to cases of this nature ; and that this section of that Act, to which particular reference has been made, relates rather to actions brought against acts of the Commissioners done under that particular Act for the purposes of that Act. For instance, in the present case, if, as was apparently the case, the stones had been stacked by the Commissioners under the provisions of the Act, a suit might have been brought within three months requiring them to remove these stones, or demanding damages for the stacking of them. A suit might be brought siinilarly for any other acts which the Commissioners might do under, this Act. But this Act was never intended to take away from individuals the right which they have, under the general law of the land, of bringing suits to recover possession of immoveable properties, on proof of their title within twelve years. Previous to the passing of this Act, there was an Act (XXI of 1857) to make better provision for the order and good government of the suburbs of Calcutta and of the station of Howrah, and that Act contained no provision such as is contained in section 87. And it appears to me that the object of this section was to limit the time within which suits for damages, and probably for damages alone, for which actions can be brought under this Act,-are to be brought. I think, therefore, that the judgment of the lower Appellate Court upon the second point also is correct, and that it was right in remanding the case to the lower Court for the disposal of the remaining issues.

1870

PRICE

KHILAT CHANDRA GHOSE.

We therefore dismiss the special appeal with costs.

Before Mr. Justice Phear and Justice Sir C. P. Hobhouse, Bart.

1870 June 2.

MAHARAJA JAGADINDRA BANWARI GABIND BAHADUR (DEFENDANT) v.

BHABATARINI DASI (PLAINTIFF).*

Act VIII of 1859, 8. 355—Evidence, Reception of, in Appellate Court, though not produced

in Lower Court.

Baboos Jagadanand Mookerjee and Rames Chandra Mitter for the appellant.

Baboos Annadaprasad Banerjee, Chandra Madhab Ghose, and Anand Ch Ira Ghosal for the respondent.

The judgment of the Court was delivered by

Puear, J.-We think that the lower Appellate Court committed an irregu. larity in receiving, at the hearing on appeal, papers and documents which had not been produced before, without giving any better reason than the follow

* Special Appeal, No. 178 of 1870, from a decree of the Subordinate Judge of Beerbhoom, dated the 10th November 1869,

GABIND

ing:-" The papers alluded to above being material and important documents, 1870 “ the Court has accepted them.”

MAHARAJA Under section 355 of the Procedure Code, the Appellate Court is forbidden JAGADINDRA to receive additional evidence, except when it is necessary to enable the Court

BAHADUR to pronounce a satisfactory judgment, or, for any other substantial reason; and the latter part of the section obliges the Appellate Court, whenever additional BHABATARINI

Dasi. evidence is so admitted, to record its reasons for admitting it; also by an earlier section in the Code, section 128, it is enacted that no documentary evidence of any kind which the parties, or any of them, are desirous to file, shall be received at a subsequent stage,—that is, after the first hearing,—unless good cause be shown for their non-production earlier. Now, in the present case, it does not appear that any cause is shown for the non-production of the documents in question at an earlier stage of the proceedings, and we cannot hold the mere statement that the papers are material and important documents to be sufficient compliance with the provision of section 355, which requires the reason to be stated why the Appellate Court admitted the evidence.

The special appellant argues that this evidence, in consequence of being improperly received, is not evidence at all; and that, inasmuch as the judgment of the lower Appellate Court is, to a considerable extent, founded on it, that judgment ought to be set aside.

We are not prepared to say that the improper reception of evidence in the manner I have mentioned necessarily has the effect of making the evidence not evidence at all between the parties. In this instance this evidence simply stands in the position of evidence which has been improperly admitted ; and that being so, section 57 of the Evidence Act forbids us to reverse the decision of the lower Appellate Court, on the ground of the improper admission of the evidence, if it appears to us that, independently of this evidence, there was sufficient evidence to justify the decision.

We therefore dismiss this appeal with costs.

Before Ur. Justice Norman.

GANES SING AND OTHERS (PLAINTIFFS) v. RAMGOPAL SING (DEFENDANT).

1870 June 8.

Suit for Declaration of Trusts of a Temple-Act XX of 1863.

In bringing a suit under Act XX of 1863, it is not necessary to show that the temple was one which was formerly under control of the Board of Revenue. The Act applies to property in Calcutta.

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This was a suit under Act XX of 1863 for the declaration and enforcement of the trusts of a certain temple in Bara Bazar, Calcutta, and the religious establishments and endowments thereof.

The plaintiffs were professors of a certain religion which, they alleged, was founded many years ago by one Sri Sri Gurunanack Gurugabind Jio, and

1870 the temple had been built and established by Raja Hajurij Sing Mahashay, Ganes Sing and dedicated by him to Sri Sri Gurunanack Gurugabind Jio for the worship

of the followers of the said religion. RAMGOPAL Sixg. The defendant had been acting as manager of the said temple ; but the

plaintiffs alleged that he had neglected the duties imposed on him as manager, refused to render accounts, and denied access to the plaintiffs to the said temple when they resorted there for the purpose of worship.

Leave of the Court to institute the suit had been obtained in accordance with section 18 of the Act on the trial.

Mr. Branson (Mr. Woodroffe with him) for the defendant raised the issue whether the plaint disclosed any cause of action. On this issue, he contended that suits under Act XX of 1863 could only be brought in respect of temples formerly under the control of the Board of Revenue. The Act itself is entitled, “ An Act to enable the Government to divest " itself of the management of religious endowments,” and the preamble states that “the Act is enacted, because it is expedient to relieve the Boards of

Revenue, &c., of the duties imposed on them by Regulation XIX of 1810 (1), so far as those duties embrace the superintendence of lands granted for " the support of mosques or Hindu temples, and for other religious uses ; “the appropriation of endowments made for the maintenance of such “ religious establishments, &c.” The Act does not apply to the present case, inasmuch as there is nothing to show that the temple has been under the control of the Board of Revenue. Suits are brought under the Aet by section 14, and leave to institute the suit (section 18) applies only to suits in respect to temples to which the Act was intended to apply, of which the present temple is not one; and the person to be sued is the trustee or manager appointed under section 5. [NORMAN, J.—The words “appointed “under this Act” in section 14 refer only to a committee appointed under the Act-see section 11 ; there is nothing to show that they refer to the words “trustee or manager."] By section 5, provision is made for the appointment of a trustee or manager, and suits under the Act can only be brought against trustees or managers so appointed.

Mr. Kennedy (with him Mr. Macgregor and Mr. Apcar) for the plaintiffs was not called on on this point.

NORMAN, J., was of opinion that the plaintiffs had clearly a right to bring the suit, under the provisions of the Act; and that they had properly instituted it.

(1) For the due appropriation of the rents repair of bridges, serais, kattras, and other and produce of lands granted for the sup- public buildings; and for the custody and port of mosques, Hindu temples, colleges, disposal of nazzul property or escheats. and other purposes ; for the maintenance and

1870 June 8.

Before Mr. Justice L. S. Jackson and Mr. Justice Glorer.
KAILAS CHANDRA SANNEL AND OTHERS (DEFENDANTS) v. DAWLAT SHEIKH

AND OTHERS (PLAINTIFFs).*
Act XI of 1865, s. 21-Small Cause Court Act (Mofussil).
A defendant desiring a new trial of a case decreed against him in a Small Cause Court,
must deposit in Court the amount of the decree passed against him and costs, at the time
of giving notice of his intention to apply for the new trial. A subsequent deposit, though
made within seven days from the date of decision, will not entitle the party to ask for a
new trial.

Semble.—“The next sitting of the Court," mentioned in section 21, Act XI of 1865, refers to the next sitting after the decision complained of; and the words “ within the period of seven days from the date of the decision " apply to cases in which the sittings of the Small Cause Court are not held consecutively by reason of the same Judge being the Judge of more than one Court.

The following cases were submitted by the Judge of the Small Cause Court of Kishnaghur for the opinion of the High Court:

“In these cases, which were contested ones, the plaintiffs obtained decrees. The defendants filed “notices " under section 21, Act XI of 1865, on the following day, but unaccompanied with the amounts decreed and costs as required by that section. Within seven days of the original decision, i. e., seven open days (see the case of Girijabhusan Haldar v. Akhay Nikari (1),) applications for new trials were filed; and along with these applications, the amounts decreed and costs were deposited in each case. I have refused the

(1) The 26th January 1870. days and Sunday cannot be excluded from Before Mr. Justice L. S. Jackson and the computation, at least, judging by analogy Mr. Justice Glover.

from what has been laid down in cases

coming under the Limitation Act : Raj Kristo GIRIJABHUSAN HALDAR (DEFENDANT) Roy v. Dinobundoo Surmah (2). 0. AKHAY NIKARI (PLAINTIFF). +

“A different rule however seems to have * In this case, which was a contested one,

been laid down in appeals ; and in Shazada a decree was given on the 6th of Novem- Woolah Gewhur (3), the Dusserah vacation ber. The 12th and 13th were holidays, the was held to be “dies no” in a case coming 14th was Sunday, and the 15th, a holiday. under section 377 of the Civil Procedure, Notice of application for a new trial was

which does not however apply to Small filed on the 16th, or more than seven days Cause Courts. from the date of the decision. The ques

“ In this case the party applying for a new tion which i have to submit for the opinion trial might have filed his notice on the 8th, of the High Court is whether, under sec- 9th, 10th, or 11th, which were open days, tion 21, Act XI of 1865, the applicant can

and have been within time, according to be allowed to deduct the four days on which section 21, Act XI of 1865." the Court was closed, in computing the The opinion of the High Court was seven days within which, according to that delivered by section, notice must be filed.

Jackson, J.—The question in this case “I am of opinion that the authorized holi- is whether, under the terms of the latter

Reference No. 11 of 1870, from the Judge of the Small Cause Court at Kishnaghur, dated the 5th May 1870.

| Reference, No. 20 B., from the Officiating Judge of the Small Cause Court of Kishnaghur, dated the 3rd December 1869. (2) 3 W. R., C. Ref., 5.

(3) 6 W. R., 19.

1870

v.

applications, on the ground that the amounts decreed and costs were not depoKAILAS CHAN-sited along with the notices as required by section 21. The defendants urge DRA SANNEL that, as they are allowed seven days from the decision within which to file the

DAWLAT notice along with which deposit is to be made, and as the latter was made SHEIKH

within the seven days, though not along with the notices, the latter are notwithstanding valid. The question on which I have to solicit the opinion of the High Court is, whether a notice by a defendant, under section 21, Act XI of 1865, to apply for a new trial in a case which bas not been decided er parte, is valid, though unaccompanied by the deposit of the amount decreed and costs. if that amount has been deposited within seven days from the date of the decision. My own opinion is that such notice is not sufficient.”

The opinion of the High Court was delivered by

L. S. Jackson, J.—I am of opinion that a party, applying under the latter provision of section 21 of the Mofussil Small Cause Court Act for a new trial, must deposit in Court, with his notice of application, the amount for which a decree shall have been passed against him; and that where the notice has been given without such deposit, a subsequent deposit, though made within seven days, will not entitle the party to ask for a new trial. It appears to me that the Judge of the Small cause Court at Kishnaghur, in making this reference, has, possibly, not considered the full effect of the words with which this proviso commences ; they are “provided also that it shall be competent to the Court, if it shall think “ fit, in any case not falling within the proviso last aforesaid, to grant a new “trial, if notice of the intention to apply for the same at the next sitting of the “ Court be given to the Court within the period of seven days from the date of " the decision, and if the same be applied for at the next sitting of the Court."

I understand the words “ the next sitting of the Court,” not to mean the next sitting after the notice, but the next sitting after the decision complained of; and that the words “ within the period of seven days from the date of the decision" apply to cases in which the sittings of the Small Cause Court are not held consecutively by reason of the same Judge being the Judge of more than one such Court; so that in case of the absence of the Judge himself, after giving the decision, the notice, together with the deposit of the amount of the decree must be given to the Court within seven days, and the application must in all cases be made at the next sitting of the Court. part of section 21, Act XI of 1865, notice new trial was filed on the 16th. The Judge of the application which the law requires observes that the party might have filed or to be given within seven days from the given his notice on the 8th, 9th, 10th, or 11th. date of the decision is in time, when the He might, no doubt, have done so, but he seventh day and the following days are was not bound to do so, as the law allows authorized holidays, but the notice is given him seven days for the purpose; and if on the on the first open day after such holidays. last of those seven days, the Court was closed,

It seems to me that the notice is in time. that is not the fault of the applicant, and he In this case the decision was given on the 6th seems to be entitled to give his notice on November, and the seventh day thereafter the first day thereafter on which he finds would be the 13th, but the 12th, 13th, 14th, and the Court open, and prepared to receive it. 15th were authorized holidays, the 14th being Sunday. A notice of an application for a GLOVER, J.-I am of the same opinion.

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