NANNULAL KISHANLAL v. NEW MALWA TRANSPORT CO — 1970 DIGILAW 5 (MP)

JUDGMENT : ( 1. ) THIS is a revision by the plaintiff-applicant against the order passed by the learned District Judge, Bhopal, in civil appeal No. 1-B of 1967, whereby the learned District Judge, dismissing the application of the plaintiff, filed under sections 5/14 of the Indian Limitation Act, held that no sufficient cause was made out for condonation of the delay. ( 2. ) THE facts, in brief, leading to this revision were that ths plaintiff-applicant filed a suit for damages to the tune of Rs. 8,255 /- including the price of goods, damages and notice charges for the loss of goods during the transit against the defendant-non-applicants in the Court of the Civil Judge, class I, Vidisha. The learned Judge, after framing the issues on the pleadings of the parties, held that it had no jurisdiction to deal with the matter and, therefore, passed an order on 13-2-67 directing that the plaint be presented before a proper Court. ( 3. ) THE applicant then filed an appeal in the Court of the learned Additional District Judge, Vidisha, on 7-3-67and that too was returned on 22-7-1967 to be filed in the proper Court. He then filed it in the Court of the learned district Judge, Bhopal, on 24 7-1967, 23-7-67 being a Sunday. He also filed an application under section 5 read with section 14 of the Indian Limitation act. The learned District Judge, by his order dated 16-12-1968, relying on the decision of Bhargava J. in Umasharan Saxena and others v. Mansaram and others (1970 M p l J157 (Civil Revision No. 22 of 1967, decided on the 18th October 1967.)) held that no case of "good faith" or "bona fide" was made out by the plaintiff and hence he dismissed the application. The applicant has, therefore, now come up in revision before this Court. ( 4. ) SHRI Chitale, the learned counsel for the applicant, has invited my attention to sections 3, 6 and 7 of the M. P. Civil Courts Act, 1958, and contended that the jurisdiction of the District Judge as well as that of the Additional District Judge is concurrent, and the jurisdiction is conferred by the state Legislature, Vide section 6 of the Act, and it could not be a creature of the District Judge. The learned Additional District Judge, Vidisha, had jurisdiction to entertain the appeal even though the distribution memorandum issued by the D strict Judge authorised him only to hear appeals up to the valuation of Rs. 5,000/ -. He further stressed that section 7 (2) of the M. P. Civil Courts Act, 1958, only authorised the District Judge to assign by a general or special order the Additional District Judge, and that being the case, it was only a ministerial order and not a judicial one, which does not affect the powers of the Additional District Judge which are the same as those of the district Judge, and in support, he relied on the decision of Krishnan J. in noor Mohammad v Prabhu Dayal and another (1972 M. P. L. J. Note No. 5=1968 J. L. J. Short Note No. 55= (Seeond Appeal no. 247 of 1965, decided on the 21st July 1966 ).) and also the decision of Shiv dayal J. in Premnarayan and another v. Mst Kokabai (Second Appeal No. 33 of 1962, decided on the 29th July 1966.) The learned counsel further contended that the rulings in Kuldip singh v. The State of Punjab and another (A I R 1956 S. C. 391.) and Janak Dulari v. Narain Dass (A I R 1959 Punj. 50.) also support his view. He further stressed that, in case this Court agreed with the view taken by Bhargava J. in umasharan Saxena and others v. Mansaram and other , the matter may be referred to the Full Bench. ( 5. ) SHRI Khirwadkar, the learned counsel for the non-applicant No. 2, on the other hand, urged that the revision is not competent as the order, under order 7, rule 11 of the Code of Civil Procedure, is appealable under Order 43, rule 1 of the Code. He also invited my attention to sections 13, 15, 18 and 19 of the Madhya Pradesh Civil Courts Act, 1958, and urged that as the district Judge had not assigned the appeal in question for hearing to the learned Additional District Judge, Vidisha, the latter had no jurisdiction to try the same. ( 6. ) SHRI Dutt for the non-applicant No. 1 and Kumari Rama Gupta, representing non-applicant No. 3 also adopted the same line of arguments. ( 6. ) SHRI Dutt for the non-applicant No. 1 and Kumari Rama Gupta, representing non-applicant No. 3 also adopted the same line of arguments. The respondent No. 4 was proceeded ex parte in the lower Court and service against him was dispensed with in this Court. ( 7. ) IN order to appreciate the arguments placed before me by the learned counsel for the parties, it is necessary to refer to the relevant provisions of the madhya Pradesh Civil Courts Act, 1958. This Act was enacted to have complete uniformity in the whole of the State in regard to the structure, jurisdiction and classifications of Civil Courts and further more, it was also considered necessary for securing an efficient judicial administration in the State. Section 3 of the M. P. Civil Courts Act, 1958, prescribes four classes of Civil Courts, namely: (1) The Court of the District Judge; (2) The Court of the Additional District Judge ; (3) The Court of the Civil Judge (Class I); and (4) The Court of the Civil Judge (Class II ). Section and of the Act deals with the jurisdiction of the Civil Courts and for our purpose, section 6 (c)is relevant and it reads like this-- "the Court of the District Judge and the Court of the Additional District Judge shall have jurisdiction to hear and determine any suit or original proceeding without restriction as regards value. " , section 7 of the Act further says that- "the Court of the District Judge shall be the Principal Court of original jurisdiction in the Civil District," and section 7 (2) says that- "an Additional District Judge shall discharge any of the functions of a District Judge, including the functions of the Principal Civil Court of original jurisdiction, which the District judge may, by general or special order, assign to him and in the discharge of such functions, he shall exercise the same powers as the District Judge. " Reading sections 6 and 7 of the Act together, it is quite clear that the Court of the Additional District Judge is specified distinctly from the Court of the, district Judge and the District Judge is the Principal Court of original jurisdiction within the meaning of the Code of Civil Procedure. " Reading sections 6 and 7 of the Act together, it is quite clear that the Court of the Additional District Judge is specified distinctly from the Court of the, district Judge and the District Judge is the Principal Court of original jurisdiction within the meaning of the Code of Civil Procedure. According to this Ac, the Government has the power to appoint in any district one or more additional District Judges, who shall be invested with co-extensive powers with the District Judge and when, in pursuance of that power, the Government had acted and appointed, an Additional District Judge, investing him with the powers co-extensive with those of the District Judge, the Court of the Additional District Judge will also become a Principal Civil Court of original jurisdiction within the meaning of the Code of Civil Procedure, as contemplated by the Act. Having come to the conclusion that the Court of the District Judge as well as that of an Additional District Judge, when he is appointed as such by the Government under the Act and having powers coextensive with those of the District Judge, the question arises whether, when the Additional District Judge entertains an appeal beyond the valuation of rs. 5,0. 00/- in case a distribution memo issued by the District Judge, which limits to that valuation, can it be said that the appeal filed in the Court of the Additional District Judge is without jurisdiction or the jurisdiction is only-conferred when the District Judge acts under section 7 (2) of the Act? ( 8. ) TWO different authorities of this Court have been cited before me. one is by Krishnan J. in Noor Mohammad v. Prabhu Dayal and another and the learned Judge held as under :- "one question posed in this connection is, whether the so called order of distribution is a purely ministerial order, then of course the whole controversy is illusory because presentation with the approval of the District Judge but before the Additional Court is presentation to the district Judge himself and if anything more is necessary, it would only be separate allotment order by him. Considering that the so called distribute on order has nothing to do with juridical: matters, but it is one for the convenience of the Courts or rather one to save the district Judge the trouble of writing a transfer order on each of the cases. Considering that the so called distribute on order has nothing to do with juridical: matters, but it is one for the convenience of the Courts or rather one to save the district Judge the trouble of writing a transfer order on each of the cases. I am inclined to hold that it is a purely ministerial, arrangement. It is for the convenience of the District judge, that he officer who is authorised to receive the memoranda of appeal takes them in batches to the different Additional Courts instead of placing them all before the District judge. Certainly, on account of such an arrangement, whatever its justification on grounds of convenience, the Litigants should not suffer. "i am aware that by a round about argument this can be described as a statutory order because statute enables the District Judge by a special or general order to allot work to the additional Court. Therefore, it can be urged that this is a general order allotting the work and is made is exercise of powers given by statute and is accordingly a statutory order. Even if it is called an order, there is nothing judicial about it and I am not prepared to hold that this is equivalent to an order creating the jurisdiction of different Additional Judges in respect of different, classes of cases. I would hold the jurisdiction to be one and single for it the judges including the District Judge subject only to an order of allotment as a matter of convenience. Whatever we may say in regard to the nature of a distribution order, in a case like this as soon as the memorandum is presented and accepted by the Court that is ostensibly competent on that date, it is before the District Court and it cannot be sent to other Court except by an order of the District Judge. If the Additional District Judge fees that the arrangement for convenience would be disturbed by his handling a particles case, he should send the file to the District Judge with a suggestion that, it might be withdrawn and re-transferred to that court to which it would be more convenient to da so; the District Judge in his turn may either accept the suggestion or send it back to the same Court. All this has nothing to do with the litigant. All this has nothing to do with the litigant. Thus, I would hold that the entire proceeding from the date of the return of the memorandum to the date of the rejection as time barred in the Court of the Third additional District Judge is without any jurisdiction. " ( 9. ) IT is true that Krishnan J. was of the view that the assignment of a case under section 7 (2) of the M. P. Civil Courts Act, either by a general or. special order, is not a judicial order bat a ministerial one even though, in a round about way, it may be called a statutory order. Bat this case is distinguishable on its own facts from the instant case. The appellant, in that case, filed an appeal in the proper Court and it was the mistake of the Court that the distribution memo did not mention clearly whether the valuation of rs. 200/-was confined to suits alone, or to appeals also and this case can be distinguished on the ground that on account of the mistake of the Court, litigant must not be allowed to suffer and I am in respectful agreement with the observations made by the learned Judge on this account. ( 10. ) IN order to appreciate the different conclusions arrived at by both the learned Judges, it will be necessary to refer to the ruling of the Supreme court reported in Kuldip Singh v. State of Punjab (supra) and the relevant passage in the judgment, in this matter, reads as follows :- "as we have already pointed out, section 18 of that Act state? that, in addition to Courts of Small Causes and Courts established under other enactments, there shall be the following classes of Civil Courts, namely; (1) The Court of the District Judge; (2) The Court of the Additional Judge; and (3) The Court of the Subordinate Judge. the Court of the Additional Judge is, therefore, constituted a distinct class of Court, and it is to be observed that the Act speaks of the Court of the Additional Judge and not of the Additional District Judge as is the case with certain other Acts in other parts of India. This language is also to be compared with Articles 214 and 216 of the Constitution which constitute and define the constitution of the High Courts in India. This language is also to be compared with Articles 214 and 216 of the Constitution which constitute and define the constitution of the High Courts in India. "214 (1) There shall be a High Court for each State. " "216. Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. " The Punjab Courts Act nowhere speaks of an Additional District Judge or of an Additional Judge to the District Court; also, the Additional Judge is not a judge of co-ordinate judicial authority with the District Judge. Section 21 (1)states that- "when the business pending before any District Judge requires the aid of an Additional judge or Judges for its speedy disposal, the State Government may appoint such Additional judges as may be necessary. " But these Judges cannot discharge all the judicial functions of the District judge. Their jurisdiction is a limited one and is limited to the discharge of such functions as may be entrusted to them by the District Judge. Section 21 (2) states that- "an Additional Judge so appointed shall discharge any of the functions of a District judge which the District Judge may assign to him. " It is true that sub-section (2) goes on to say that- "in the discharge of those functions, he shall exercise the same powers as the District judge. " But these powers are limited to the cases with which he is entitled to deal. Thus, if his functions are confined to the hearing of appeals, he cannot exercise original jurisdiction and vice versa. But if he is invested with the functions of an appellate tribunal at the District Court level, then he can exercise all the powers of the District Judge in dealing with appeals which the District Judge is competent to entertain. This is a very different thing from the administrative distribution of work among the Judges of a single Court entitled to divide itself into sections and sit as division Courts. "when the Chief Justice of a High Court or the District Judge of a District Court makes an administrative allotment of work among the Judges of his Court, their jurisdiction and powers are not affected and if work allotted to one Judge goes to another by mistake, his jurisdiction to entertain the matter and deal with it is not affected. "when the Chief Justice of a High Court or the District Judge of a District Court makes an administrative allotment of work among the Judges of his Court, their jurisdiction and powers are not affected and if work allotted to one Judge goes to another by mistake, his jurisdiction to entertain the matter and deal with it is not affected. But that is not the scheme of the Punjab Courts Act and the mere fact that Mr J. N. Kapur called himself the Additional District Judge and purported to act as such, cannot affect the matter of his jurisdiction. As the Punjab Courts Act does not contemplate the appointment of Additional Judges to the district Court, none can be appointed. The Court contemplated is the Court of the Additional judge which is in the nature of a special tribunal set up for a special purpose and invested with the powers of a District Judge when dealing with the matters specially entrusted to its jurisdiction. We hold, therefore, that the Court of the Additional Judge is not a division court of the Court of the District Judge but a separate and distinct Court of its own. " ( 11. ) THIS case, of course, involved the que tion of interpretation of certain provisions in the Code of Criminal procedure, mainly regarding which was the Court which decided the suit as subordinate Judge, it was held that the Court of the Additional District Judge was not a divisional Court of the court of the District Judge, but a separate and distinct Court of its own; that when an offence punishable under section 195 (3) of the Indian Penal Code was committed in or in relation to a proceeding in a Court of Subordinate judge of the Court of First Class, in Punjab, the complaint could not have been made either by the Subordinate Judge or by the Additional District judge. ( 12. ) WHEN we compare section 21 (1) of the Punjab Courts Act with sections 6 and 7 (2) of the Madhya Pradesh Civil Courts Act, there is a difference and that is why section 21 (2) of the Punjab Courts Act states that------- "an Additional Judge so appointed shall discharge any of the functions of a District judge which the District Judge may assign to him. " Sub-section (2) further, no doubt, says that----- "in the discharge of those functions, he shall exercise the same powers as the District judge. " It is, thus, quite clear that his powers are limited to cases which he is entitled to deal with and their Lordships of the Supreme Court have clearly observed as aforesaid that if he is invested with the functions of the appellate Court at the District Court level, then he can exercise all the powers of the District judge in dealing with the appeals which the District Judge is competent to entertain. It is further observed that this is a very different thing from the administrative distribution of work among the Judges of a single Court entitled to divide itself into sections and sit as division Courts. Their Lordships, in paragraph 24 of their judgment, have further clearly observed------ "we make it clear that our decision on this point is confined to the Punjab Act. We understand that similar Acts in other States are differently worded so that what we decide for the Punjab may not hold good elsewhere. We say this because rulings were cited before us from other parts of India which take differing views. We do not intend to refer to them because it would not be right to examine the language of Acts that are not directly before us. Accordingly, we confine ourselves to the Punjab Act (Act VI of 1918 ). " ( 13. ) SECTIONS 6 and 7 of the Madhya Pradesh Civil Courts Act make it clear that the Court of the Additional District Judge is a Court of concurrent jurisdiction with that of the District Judge, when one such is created by the government, that is to say, that the powers of the Additional District Judge are co-extensive with those of the District Judge, but there is a rider under section 7 (2) of the Act which says that the Court of the Additional District judge shall perform the functions of the principle Civil Court of original jurisdiction as well as any other functions of the District Judge when the District judge, either by a general or special order assigns a work to him. It is true that the Additional District Judge has the same jurisdiction as that of the district Judge but he will act only as such when the work is assigned by the district Judge, that is to say, it is a condition precedent for the Additional district Judge to function as a District Judge It will be of benefit to read section 13 of the Act with section 7 (2 ). Section 13 deals with appellate jurisdiction and it reads as follows :-Appellate jurisdiction.- (I) Save as otherwise provided by any law for the time being in force, appeals from decrees on orders of Courts exercising original jurisdiction shall lie as follows:- (a) from a decree or order of the Court of the Civil Judge (Class I) or of the Civil Judge (Class II) to the Court of the District Judge :. . . . . . . . . . . . . . It makes it further clear that the Additional District Judge, though empowered with all the powers of the District Judge, can exercise such powers only when the appellate work is assigned to him by the District Judge, vide section 7 (2) of the Act. Section 15 of the M. P. Civil Courts Act deals with the distribution of business which means that the District Judge has the power to direct by an order directing that any civil business which is cognizable by it and the courts under its control, shall be distributed among those Courts in such a manner as he thinks fit. There is a proviso to it which says that a direction given under this section empowers any Court to exercise powers or deal with business within its proper jurisdiction and not beyond. Considering all the relevant sections of the Madhya Pradesh Civil Courts Act as aforesaid, I am of the view that the Court of the Additional District Judge is a distinct Court from that of the Court of the District Judge after the M P. Civil Courts act, 1958 came into force and the position was different under the Central provinces and Berar Courts Act, 1917, when there was no separate Court of the Additional District Judge, but the Civil Judges Class I were empowered to act as Additional District Judges to the Court of the District Judge. In that case, if an appeal, which could have been filed in the Court of the district Judge, was wrongly filed in Court of the Additional District Judge, it was merely an irregularity and no question of limitation arose. ( 14. ) IT is true that the Court of the Additional District Judge has the same powers as that of the District Judge but the appeals from the Court of the civil Judges Class I, and Class II, would lie to the Court of the District Judge, vide section 13 of the Act and the Additional District Judge would hear appeals and exercise the same powers of the District Judge, when the District judge assigns that work to him. That being the position, I am in respectful agreement with the view taken by Bhargava J. which is based on the ruling reported in Kuldip singh v. The State of Punjab and another (supra ). In view of the supreme Court ruling, it is not necessary to discuss the decision given in premnarayan and another v. Mst. Kokabai (supra ). ( 15. ) THE revision has no merit and it is, therefore, dismissed. Looking to the facts and circumstances of the case, parties to bear their own costs. Application dismissed.