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Judgment
Maclean, C.J.—A preliminary objection is taken by Mr. Jackson that this reference does not come within Section 42 of the Lower Burma Courts Act (Act XI of 1889), and consequently that we cannot hear it. We will deal with that objection. By the above section the Recorder of Rangoon, if he entertains any doubt upon any question of law, or of custom having the force of law, or as to the construction of any document, or the admissibility of any evidence affecting the merits, may, if he think fit, draw up a statement of the question and submit it to the High Court. In this case what has happened is this: Upon the point at issue in the case there are conflicting decisions of this Court with those of the High Courts of Madras and Bombay. Under these circumstances the position of the Recorder is clear. He is not bound by the decisions of the High Courts of Madras and Bombay, but he is bound by the decision of this Court. He should therefore have followed, as he was bound to follow, the decision of this Court, and have left the party who felt aggrieved by his decision to appeal u/s 40 of the Act, What doubt, then, has the learned Recorder expressed in the reference upon any question of law arising in the case? He has expressed none; on the contrary ho has stated in the most explicit terms that he is hound by the decision of this Court.
If he entertain any doubt, it is a doubt as to the soundness of the decision of this Court. Personally he may, but judicially he cannot, indulge in that doubt. He is bound by the decision. Were it otherwise, in every case in which the learned Recorder doubted the soundness of a decision of this Court he might send up a reference. This cannot be the meaning of the section. I do not think this reference comes within Section 42, and that the preliminary objection must prevail.
The papers will be returned to the Recorder with this expression of our opinion.
Macpherson, J.
I concur.
Treveylan, J.
I should like to say that I think it clear, having regard to the terms of Section 42 of the Lower Burma Courts Act, that the doubt which the Recorder entertains must be a doubt as to the way in which he ought to determine the particular question of law, or of usage having the force of law, or as to the construction of any document, or the admissibility of any evidence affecting the merits which may arise in the case before him. No other doubt can possibly be the basis of any reference having regard to the terms of the section. In this ease the Recorder himself says that the decision of the Calcutta High Court is absolutely binding upon him. That being so, there is, in my opinion, no basis for this reference.