K. N. PANJAWANI v. T. N. K. NAYAR — 1983 DIGILAW 4 (KAR)

P. A. KULKARNI, J. ( 1 ) THE respondent (hereinafter referred to as'the plaintiff') had filed a suit against petitioners 1 and 2 (hereinafter referred to as 'the defendants') during Dasara vacation of 1982 seeking a declaration that the letter dt. 2-10 1982 issued by the President mrs. T. N. K. Nayar of Rama Sakti Mission, Mangalore, is illegal and invalid in law, and for a declaration that the notice dt. 25 10 1982 issued by the joint secretary was also illegal and invalid in law, and also for a permanent injunction restraining the defendants from convening the meeting of the Governing Body on 2-11 1982 or on any other date, and for a permanent injunction restraining them from bringing back the discredited Ex. President Sri K. V. S. Pai as President of the Mission etc. ( 2 ) THE City Civil Court situate at bangalore and all the other Civil Courts in the mofussil places in this State, were closed during Dasara vacation. It is also undisputed that no vacation Judge had been appointed during Dasara vacation for the City Civil Court at Bangalore and the subordinate Civil Courts in the State during the said vacation. ( 3 ) THE office of this Court raised an objection that this Court had no jurisdiction to entertain the s,uit during Dasara vacation. The objections raised by the office were put up before me. This Court made an order on 29 10-1982 thus :-"the office has raised an objection regarding the maintainability of the suit. All the Civil Courts are now closed for vacation. Whether this Court would get jurisdiction to entertain matters of this nature on account of the subordinate Courts being closed, is a matter that will have to be decided once for all. It requires a good deal of time to decide the point in question. The matter appears to be of some urgent nature. Therefore, till the said point is decided, it is ordered ad interim that the calling of the meeting on 2-11-1982 is stayed". ( 4 ) NOW the defendants have filed IA no. 2 under Or 39, R. 4 of the CPC requesting to vacate the stay alleging that this Court is not a Court of original jurisdiction and it could not entertain a suit of the present civil nature and thus it could not pass the ad-interim order in question. ( 4 ) NOW the defendants have filed IA no. 2 under Or 39, R. 4 of the CPC requesting to vacate the stay alleging that this Court is not a Court of original jurisdiction and it could not entertain a suit of the present civil nature and thus it could not pass the ad-interim order in question. The issue of the ad interim order of stay is also attacked by the defendants on various other grounds with which 1 am not concerned with at this stags. The argument now centers round the point as to whether this Court is a Court of originaj civil jurisdiction and whether it could entertain a suit of the present nature during dasara vacation or winter vacation. ( 5 ) A similar point arose in Raja Soap factory v. S. P. Shantharaj (1 ). It was a case which was filed in this Court during the summer vacation under the Trade and merchandise Marks Act. The Supreme court held that this Court was not a Court of original jurisdiction at all and it could not entertain a suit of original jurisdiction during vacation. It has been held by the supreme Court in para 4 thus : -"exercise of jurisdiction by the High court of Mysore is governed by Mysore act 5 of 1962. The Act is purely a regulatory Act enacted for regulating the business and exercise of the powers of the High Court in relation to the administration of justice : it does not purport to confer upon the High Court any jurisdiction original or appellate. It is true that by S. 12 of the Mysore High court Act 1 of 1884 enacted by the maharaja of Mysore to amend the constitution of the High Court of Mysore, and to provide for the administration of justice by that Court, the Government of mysore was authorised by notification to invest the High Court with ordinary original civil jurisdiction of a District court in all suits of a civil nature exercisabie within such local limits as the government may from time to lime declare and appoint in that behalf. But 5. 12 of the Mysore Act of 1884 has been repealed by S. 14 of Mysore Act 5 of 1952". ( 6 ) THE Supreme Court also heid that this. Court is primarily a Court exercising appellate jurisdiction. But 5. 12 of the Mysore Act of 1884 has been repealed by S. 14 of Mysore Act 5 of 1952". ( 6 ) THE Supreme Court also heid that this. Court is primarily a Court exercising appellate jurisdiction. It also held that it is competent to exercise original jurisdiction only ic those matters in respect of which by special Acts it has been specifically invested with jurisdiction. It also held that the High Court of Mysore not being iavested by any statute or under its constitution with that jurisdiction was incompetent to entertain a passing off action. ( 7 ) HOWEVER, the learned counsel Sri p. S. Devadas maintained that S. 52 and 57 of the States Reorganisation Act and Arts. 215 and 225 of the Constitution had not been considered by the Supreme Court, while disposing of the said case. He also urged that the preamble to Kar. Act 5 of 1962 and Ss. 4 and 9 (iii) of the Kar. High court Act, had not been considered by the supreme Court ia the said case. ( 8 ) S, 52 of the States Reorganisation act readi thus :-"jurisdiction of High Courts for new states :-The High Court for a new state shall have, in respect of any part of the territories included in that new state, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is excrcisable in respect of that part of the said territories by any High Court or Judicial Commissioner's Court for an existing State". S. 57 of the States Reorganisation Act reads thus :-"powers of Judges :- -The law in force immediately before the appointed day relating to tlie powers ofths Chief Justice, ,irtg!e juogen and division Courts of the High Court for the corresponding state and with respect to matters ancilacary to the exerese of those powers shall, with the ceressary modifictions, apply in relation to the High Court for a new State". "therfore, on s read'pp of these two section 5, it appears to me that the jurisdiction exercised by the High Court prior to the COming into force of the States reorganisation Act was saved by these two sections and the new High Court could exercise the jurisdiction which was being exercised by the erstwhile High Court situate in old Mysore area prior to the coming into force of the States Reorganisation Act. Before the States Reorganisation Act came into force, the High Court was existing in the old Mysore area and it was governed and regulated by the Mysore high Court Act I of 1884. S. 12 of the mysore Act I of 1884 reads thus :"12 (1) : The Government of Mysore may, whenever it deems fit, confer upon the High Court, by notification in the official Gazette, the ordinary original civil jurisdiction of a Dist. Court in all suits, and proceedings of a civil nature, or the ordinary original criminal jurisdiction of a Sessions Court, or both such jurisdictions, to be exercised within such local limits as the Government may, from time to time, declare and appoint in that behalf" (underling (italics) is mine ). No official Notification conferring original jurisdiction on the pre existing or erstwhile Mysore High Court has been brought to my notice. In the absence of any Notification contemplated by S. 12 of mysore Act I of 1884, even the erstwhile high Court had no original jurisdiction at all. Therefore, when the erstwhile High court regulated by Mys. Act I of 1884 had itself no jurisdiction, the question of saving this jurisdiction even for the new High court, does cot arise at all. If the erstwhile High Court had got oiiginal jurisdiction, then there would have been some scope to argue that by virtue of Ss. 52 and 57 of the States Reorganisation act, the new High Court regulated by Act 6 of 1962 could exercise original jurisdiction. As aheady staled above, there is no notification as conlemplated by S. 12 of mysore Act I of 1884 conferring original jurisdiction on the erstwhile Mysore High court. Therefore, Ss. 52 and 57 of the states Reorganisation Act will not be of much help to the learned counsel Sri devadas in this connection. ( 9 ) S. 14 of the Kar. Act 5 of 1962 has repealed Ss. Therefore, Ss. 52 and 57 of the states Reorganisation Act will not be of much help to the learned counsel Sri devadas in this connection. ( 9 ) S. 14 of the Kar. Act 5 of 1962 has repealed Ss. 11, 12, 13, 14, 15, 16, 16-A, 16 B, 20 and 22 of the Mysore High Court act, 1884. Therefore, even S. 12 which enabled the Government to confer original jurisdiction on the erstwhile Mysore High court, has been repealed by this Act. Therefore, it cannot be said that this court by virtue of S. 12 of Mysore Act I of 1884 has got original jurisdiction. ( 10 ) LEARNED counsel Sri Devadas relied on Art. 215 of the Constitution which reads thus :"every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself". The incidents of a Court of record are :- (1) it has the power to determine questions about its own jurisdiction and (2) it has inherent power to punish for its contempt summarily. Every Court of record has got the jurisdiction to find out whether it has got jurisdiction or not in a particular case. There is nothing in Art. 215 of the Constitution to indicate that every Court of record is a Court of original jurisdiction. Then, he relied on Art. 225 of the Constitution which reads thus :-"subject to the provisions of this constitution and to the provision of any law of the appropriate Legislature made by virtue of powers conferred on that legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration-of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division courts, shall be the same as immediately before the commencement of this Constitution". Art. 225 of the Constitution says that the jurisdiction of the High Court and the respective powers of the Judges would be the same as the ones which existed immediately before the commencement of the constitution. As already shown above, even the erstwhile Mysore High Court was not a Court of original jurisdiction. Art. 225 of the Constitution says that the jurisdiction of the High Court and the respective powers of the Judges would be the same as the ones which existed immediately before the commencement of the constitution. As already shown above, even the erstwhile Mysore High Court was not a Court of original jurisdiction. No notification contemplated by S. 12 pf mysore Act I of 1884 conferring original jurisdiction has been brought to my notice. Therefore, Art. 225 of the Constitution will not come to the rescue of tie plaintiff in this case. ( 11 ) THEN Sri Devadas relied on Ss. 4 and 9 (iii) of Kar. Act 5 of 1962. He quoted various rulings including Shamrao v. Dist, Magistrate, Thana (2) ; Banwaridass v. Sumerchand (3) and Sonia Bhatia v. State of U. P. (4) in support of the principle that the literary and grammatical interpretation is the golden rule while interpreting statutes. He quoted those rulings while relying on Ss. 4 and 9 (iii) of Kar. Act 5 of 1962. ( 12 ) S. 4 of Kar. Act 5 of 1962 reads thus :-"4. Appeals from decisions of a sungle judge of the High Court:- An appeal from a judgment, decree, os-dsr or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under any law for the time being in force, shall lie to and be heard by a Bench: consisting of two other Judges of the high Court". Sri Devadas contended that the use of the words "original jurisdiction of the high Court" in S. 4 indicated that this court was a Court of original jurisdiction. The wordings used in S. 4 viz. , "in the exercise of the original jurisdiction of the high Court under this Act" would clearly indicate that this Court has got original jurisdiction only in respect of those matters which are provided by this Act of 1962. It is not as if this Court is a Court of ordinary original civil jurisdiction in full measure. This Act of 1962 does not confer any original jurisdiction on this Court at all. In some matters like writ matters, company matters, etc. It is not as if this Court is a Court of ordinary original civil jurisdiction in full measure. This Act of 1962 does not confer any original jurisdiction on this Court at all. In some matters like writ matters, company matters, etc. , this Court has got original jurisdiction It is only in respect of the orders passed in such matters that an appeal shall lie to a Bench consisting of two other Judges. Sri Devadas drew my attention to the wordings "under any law for the time being in force". These wordings, in my opinion, only mean that any other law must have conferred original jurisdiction on the High Court and that jurisdiction must have been exercised by a single Judge for the purpose of S. 4 and it is only against such an order made by the single Judge that an appeal has been provided. Therefore, S. 4 will not, in my opinion, indicate that this Court is a court of original jurisdiction. ( 13 ) THEN the learned counsel Sri Devadas relied on S. 9 (iii) of Kar. Act 5 of 1962 which reads thus :-"9. Other powers of a single Judge :- the powers of the High Court in relation to the following matters shall be exercised by a single Judge, provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges :-- (i ). . . . . . . . (ii ). . . . . . (iii) exercise of original jurisdiction under any law for the time, being in force". It only means that the original jurisdiction can be exercised by this Court provided some law confers original jurisdiction on this Court to hear the matters arising under that Act. If any other law does not provide for the conferment of the original jurisdiction on this Court, then it would be rather idle to contend that this court has still got original jurisdiction under S. 9 (iii ). ( 14 ) LEARNED counsel Sri Devadas quoted Reference under Art. 143 of the Constitution (5 ). It was a case wherein the Legislature of UP had ordered that two Judges of the High Court of UP who had released k on bail, be brought in custody before it, for dealing with them for its contempt. ( 14 ) LEARNED counsel Sri Devadas quoted Reference under Art. 143 of the Constitution (5 ). It was a case wherein the Legislature of UP had ordered that two Judges of the High Court of UP who had released k on bail, be brought in custody before it, for dealing with them for its contempt. These two Judges filed a petition under art. 226 contending that the resolution passed by the Assembly amounted to contempt of Court, that it was wholly without jurisdiction, that it should be set aside and that by an interim order its implementation should be stayed. On these petitions, the Full Bench of the High Court ordered by a notice restraining the Speaker of the Assembly from issuing the warrant in pursuance of the direction of the assembly and from securing execution of the warrant if already issued. When the incident reached this stage, the President of India decided to exercise his power to make a reference to the Supreme Court under Art, 143 (1 ). What was laid down in the said case is that the High Court being a Court of record, could determine whether it had got the jurisdiction or not. ( 15 ) LEARNED counsel Sri Devadas relied on para 138 of the case in AIR 1965 SC 745 . It reads thus: -" (138) We ought to make it clear that we are dealing with the question of jurisdiction and are not concerned with the propriety or.-easonableness of the exercise of such jurisdiction. Besides, in the case of a superior Court of Record, it is for the Court to consider whether any mutter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction, "prima facie" says Halsbury, "no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Com! unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court". Simply because this Court is a superior court, its jurisdiction will not extend to all matters. unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court". Simply because this Court is a superior court, its jurisdiction will not extend to all matters. Jurisdiction is the authority by which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. In all matters in which jurisdiction is conferred on this court, its powers are unlimited. Therefore, the said wordings used in para 138 do not mean that this Court can confer upon itself original jurisdiction when the very Act regulating the business of this Court does not provide for the con" ferment of original jurisdiction on it. To make the matter still clear, S. 2 (4) of the cpc defines "district" as :-" 'district' means the local limits of the jurisdiction of a Prl. Civil Court of original jurisdiction (hereinafter called a "district Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court". S, 3 (3) of the Kar. Act 13 of 1980 which created a City Civil Court for the City of bangalore reads thus : -"3. Establishment of a City Civil conn. '- (I) As from the appointed date there shall be a Cily Civil Court for the city of Bangalore. (2) The City Civil Court shall consist of a Prl. City Civii Judge and such number of other City Civil Judges as the state Government may. in consultation with the High Court, determine. (3) Notwithstanding anything contained in any law, the City Civil court,- (a) shall be deemed to be the Prl. City Civil Court of original jurisdiction in the City of Bangalore ; (b) shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature and arising within the City of Bangalore except suits or proceedings which are cognizable by the High Court and the Court of small Causes". Therefore this section makes it amply clear that the Cily Civil Court situate at bangalore is the only Court of ordinary original civil jurisdiction in Bangalore city. Therefore this section makes it amply clear that the Cily Civil Court situate at bangalore is the only Court of ordinary original civil jurisdiction in Bangalore city. Thus the High Court cannot usurp the powers of the City Civii Court in respect of the original civil jurisdiction matters, S. 3 (3) (b) clearly says that the city Civil Court shall have jurisdiction to receive, try and dispose of as! suits and other proceedings of a civil nature and arising within the City of Bangalore except suits or proceedings which are cognizable by the High Court and the court of Small Causes. Only the suits or proceedings which are cognizable by the high Court under some law have been excepted from the jurisdiction of the City civil Court. Therefore, this is a clear provision to show that this Court is not a court of ordinary civil jurisdiction and it has got original civil jurisdiction only in those proceedings of a civil nature which can be taken cognizance of by this Court under some law passed by the Legislature. Similar provi ion has been made in the kar. Civil Courts Act (Act No 21 of 1964 ). S. 14 of the Civil Courts Act reads thus : - 14. "jwisjict on of Distrht Court :- (1) The Dist. Court shall be deemed to be the Prl. Civil Court of original jurisdiction within the local limits of its jurisdiction". This is also a provision to show that it is only the Dist. Court in the rnofussil place that his got the ordinary original civil jurisdiction. Therefore, the intendment of the law is quite clear that the City civil Court in Bingalore City and the dist. Courts in the mofus il places are the only Courts of ordinary original civil jurisdiction. These two provisions would show that even by implication this Court cannot be considered to be a Court of ordinary original civil jurisdiction. ( 16 ) THEN the learned counsel Sri Devadas contended that the Kar. Civil Courts act, 1964, and the Bangalore City Civil courts Act, 1979, do not make any provision for the appointment of a vacation judge during winter vacation and Dasara vacation. Thus, according to him, the extraordinary situation arising on account of not providing for a vacation Judge by the said Acts during Dasara and winter vacations, would demand of this Court to exercise the original juri. Thus, according to him, the extraordinary situation arising on account of not providing for a vacation Judge by the said Acts during Dasara and winter vacations, would demand of this Court to exercise the original juri. sd'ction during the said vacation -. This argument of the learned counsel sri Devadas is met by the ruling reported in Raja Soap Tactory's (1) case. Para 9 of the said judgment reads thus :-"9. Reliance was sought to be placed upon the summary of a judgment dated june 6, 1962 in a case decided by Nsrayana Pai, J : Kaverappa v. Narayanaswamy, which is found printed under the heading "short Notes of Recent Decisions" in 1962 40 Mys LJ (SN) 1. The learned Judge is reported to have observed that S. 24 of the CPC "read along with S 151 which preserves to the High court all inherent powers to make such orders as may be necessary for ends of justice necessarily implies that whenever an extraordinary situation so requires, a High Court may confer original jurisdiction upon itself to do or protect ends of justice".- It does not appear that the judgment is reported In any series of reports- authorised or unauthorised - , and we have not been supplied with a copy of the original judgment. But if the learned Judge as reported in the nummary of the judgment, was of the opinion that the High Court is competent to assume to itself jurisdiction which it does not otherwise possess, merely because an "extraordinary situation" has arisen, with respect to the learned Judge, we are unable to approve of that view. By "jurisdiction" is meant the extent of the power which is conferred upon the Court by its constitution to try a proceeding ; its exercise cannot be enlarged because what the learned Judge calls an extraordinary situation "requires" the Court to exercise it". ( 17 ) IT is not the extraordinary situation that would confer jurisdiction upon this court. The business of this Court is regulated by Kar. Act 5 of ] "62. Whatever be the extractdinary situation, this Court cannot a same to itself ordinary original civil jurisdiction. Therefore, the said argument advanced by Sri Devadas also fails. ( 18 ) BEFORE parting with this case, I would like to say a few words. Unfortunately under the Bangalore City Civil court Act, 1979 and the Kar. Act 5 of ] "62. Whatever be the extractdinary situation, this Court cannot a same to itself ordinary original civil jurisdiction. Therefore, the said argument advanced by Sri Devadas also fails. ( 18 ) BEFORE parting with this case, I would like to say a few words. Unfortunately under the Bangalore City Civil court Act, 1979 and the Kar. Civil Courts act, 1964, no provision has been made for the appointment of a vacation Judge during dasara vacation and the winter vacations Provision has been made for the appointment of a vacation Judge only during summer vacation. Some extraordinary situation may arise during Dasara and winter vacations when the party may require the assistance of a Court of ordinary original civil jurisdiction. In the absence of any provision in these two Acts for the appointment of a vacation Judge during dasara and winter vacations, no Judicial officer can be appointed in the subordinate court as a vacation Judge during these two vacations. It is quite high time and the interest of justice also demands that the said two laws need to be suitably amended in order- to make provision for the appointment of a vacation Judge during winter and Dasara vacations also. A copy of this order may be sent to the Government for taking necessary and immediate steps in the matter. ( 19 ) THUS, it follows that this Court was incompetent and thus had no jurisdiction to entertain the present suit at all even during the Dasara vacation. Therefore, the presentation of the plaint in this Court is bad at law. The interim order of stay granted by this Court is one passed without jurisdiction. A judgment or order delivered by a Court not competent to deliver it, e. g. , by a Court which has no jurisdiction, is a mere nullity. Therefore, the interim order of stay granted by this court is void and bad at law and had no no effect in the eye of law. The stay order dt. 29 10 1982 granted by this Court is hereby vacated. Thus IA II is allowed. ( 20 ) THEN the next question may arise as to what should be done when the plaint is received by this Court having no jurisdiction at all and the interim order of stay has been granted by this Court. Or. The stay order dt. 29 10 1982 granted by this Court is hereby vacated. Thus IA II is allowed. ( 20 ) THEN the next question may arise as to what should be done when the plaint is received by this Court having no jurisdiction at all and the interim order of stay has been granted by this Court. Or. 7, r. 10 of the CPC has provided for such a situation. Or. 7, R. 10 of the CPC says thus :-"10 (1) : Subject to the provisions of r. 10a, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted". Or. 7, R. 10a (3) provides for the return of the plaint when it is found that is has no jurisdiction to try the suit. Therefore, the plaint will have to be returned to the plaintiff for being presented in a proper court. R. 10a (1) requires that the intimation of the return of the plaint should be given to the plaintiffand the plaintiff's counsel who is present is accordingly informed about the return of the plaint. R. 10a (2) (a) requires that the Court in which he proposes to present the plaint after its return should be specified. ( 21 ) NOW as required by Or. 7, R. 10a (2) of the CPC, the plaintiff may make an application to this Court specifying the court in which he proposes to present the plaint after its return and also praying that the Court may fix a date for the appearance of the parties in the said Court and also requesting that the notice of the Court should be given to him etc. , etc. Costs in the petition shall be costs in the suit. --- *** --- .