The main legal point established in the judgment is the permissibility of a reference under Section 69 on an application under Section 38 and the requirement of drawing up a statement of facts in a reference under Section 69.

JUDGMENT

1. This is a reference u/s 69 of the Presidency Small Cause Courts Act, 1882. The suit, which was brought by the buyer against the seller for damages for breach of an indent contract, was instituted on the 18th July, 1922. The trial took place before the Sixth Judge who dismissed the suit on the 18th August, 1922. On the 7th September, 1922, the plaintiff made an application u/s 38 before the Chief Judge and the Sixth Judge who, directed notice to issue. The matter was adjourned from time to time till the 16th February, 1923, when the application was heard in the presence of both sides. There was a further hearing on the 22nd February 1923, when the Court reserved judgment. On the 8th March, 1923, two separate judgments were delivered, one by the Chief Judge, the other by the Sixth Judge. They disagreed in their conclusions. The judgment of the Chief Judge narrates the history of the case, contains an exposition of his view of the law, concludes with the expression of opinion that the suit should have been decreed and formulates two questions which are referred to this Court. The judgment of the Sixth Judge similarly contains a statement of facts, an exposition of the law, and an expression of opinion that the suit had been rightly dismissed by him. We have to consider whether the reference thus made is in conformity with Section 69 of the Presidency Small Cause Courts Act, 1882, and in this commotion two points require examination, namely, first, whether a reference u/s 69 is permissible on an application u/s 38, and, secondly, whether the Court has in this case drawn up a "statement of the facts" within the meaning of Section 69.

2. As regards the first point, we are of opinion that the Small Cause Court is competent to make a reference u/s 69 on an application u/s 38. Section 38 is in these terms:

Where a suit has been contested, the Small Cause Court may, on the application of either party made within eight days from the date of the decree or order in the suit (not being a decree passed u/s 522 of the Code of Civil Procedure), order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.

3. Section 69 is in these terms:

If two or more Judges of the Small Cause Court sit together in any suit, or in any proceeding under Chap. VII of this Act, and differ in their opinion as to any question of law or usage having the force of law, or the construction of a document, which construction may affect the merits, or if, in any suit or any such proceeding, in which the amount or value of the subject-matter exceeds five hundred rupees, any such question arises, and either party SO requires, the Small Clause Court; shall draw up a statement of the facts of the case, and refer such statement, u/s 617 of the Code of Civil Procedure, for the opinion of the High Court, and shall either reserve judgment or give judgment contingent upon such opinion.

4. The decision of Garth, C.J., and Wilson, J., in Nusserwanjee v. Pursutam (1885) 11 Cal. 298 is an authority for the proposition that an order rejecting an application for a new trial, subject to the decision of the High Court on certain point or points referred, is not a contingent judgment within the meaning of Section 69, and points of difference between the Judges at that stage cannot form matters for reference. In support of this view, reference was made to the decision of Couch, C.J., and Pontifex, J., in Hall v. Joakim (1873) 12 B.L.R. 34 On the other hand, the decision of Peacock, C.J., and Mitter, J., in Ishan Chandra v. Haran Sardar (1869) 11 W.R. 525 point to the opposite conclusion. The Madras High Court in Oakshott v. B.I.S.N. Co. (1891) 15 Mad. 179 followed the decision in Nusserwanjee v. Pursutam (1885) 11 Cal. 298. The latter decisions in Madras, however, have uniformly adopted the contrary view: Seshammal v. Munusami (1896) 20 Mad. 358, Rangiah v. Rungiah (1908) 31