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1927 Supreme(Nagpur) 218
HIGH COURT OF NAGPUR
Kinkhede
BAPU SURYABHAN – Appellant
Versus
KISAN AND ORS – Respondent
Decided on : 01-11-1927
The main legal point established is that the suit was not open to 2nd appeal and could not be treated as a civil revision, leading to the dismissal of the appeal.
Headnote:
Compensation - Property Damage - The court dismissed the appeal for compensation for damage to the plaintiff's property caused by the defendant's wrongful act of digging a pit and letting water accumulate, citing lack of grounds for 2nd appeal and refusal to treat it as a revision.
Fact of the Case:
This is a suit for compensation for damage done to plaintiff's property by the defendant's wrongful act of digging a pit close by and letting water accumulate, causing the plaintiff's wall to fall down.
Finding of the Court:
The court found that the suit was not open to 2nd appeal and refused to treat it as a revision, ultimately dismissing the appeal with costs.
Issues: The main issue was whether a 2nd appeal lies in this case, and whether the appeal could be treated as a revision.
Ratio Decidendi: The court cited Section 102 of the Civil Procedure Code and previous rulings to support its decision that the suit was not open to 2nd appeal. It also refused to entertain the appeal as a civil revision due to the timing of the filing.
Final Decision: The appeal was dismissed with costs.
Kinkhede, A J C—This is suit for compensation for damage done to plaintiff's property by the wrongful act of the defendant of digging a pit close by and letting water accumulate there. It is said that the plaintiffs' wall got damp with moisture and fell down. Hence the plaintiffs claimed compensation by way of reimbursement of the expenses they are likely to suffer in re-erecting them. The plaint in this suit was originally presented to the Court of Small Causes but that Court returned it for presentation to the ordinary civil Court on the ground that it involved a question of title. The Small Causes Court thus exercised the discretion what the law gave it under Section 23 Provincial Small Causes Courts Act. That order has become final as between the parties.
2. The plaint was thus entertained by the ordinary civil Court to which it was presented in due course. The first Court decreed the claim to the extent of Rs. 10. The decision was appealed against by the defendant but his appeal was unsuccessful. He has therefore come up on 2nd appeal.
3. The first question is whether a 2nd appeal lies. On the strength of the rulings in Vinayak v. Krishnarao [1901] 25 Bom. 625 and Kesri Sang v. Narain Sang [1908] 32 Bom. 560 I hold that the suit is not open to 2nd appeal in view Section 102, Civil P.C.
4. I am asked to treat the 2nd appeal as revision. The memorandum was filed on the 75th day and ordinarily this Court does not entertain civil revisions presented after the 45th day. I do not see any valid reason to admit this as a civil revision especially as the result thereof would be an affirmance of the decree of the lower appellate Court. The appeal fails and is dismissed with costs.
Final Result : Dismissed
