Dilip Banerjee v. Sukhamoy Upadhyay — 1985 DIGILAW 396 (CAL)

JUDGMENT 1. THIS revisional application is directed against the order dated 8. 8. 85 passed by triel learned district Judge, Burdwan, in Misc. Appeal No. 91 of 1985 directing the continuance off the stofy of the operation of the order dated 12.7.85 passed by the learned Munsif, 2nd Court, Asaisol, in Title Suit No. 68 of 1982, till the disposal of the misc. appeal. 2. THE caveat having been lodged, this revisional application has been heard as a contested application as desired by the parties. The opposite party nos. 1 to 3 as plaintiff of filed the title Suit No. 68 of 1 982 in the Court of the 2nd Munsif, "asanso, against the opposite party nos. 4 and 5 as defendant nos. 1 and 2 for a declaration that the action of the defendant nos. 1 and 2 entertaining/ considering the tenders submitted by Sreeroa Transport Agency for the transport job as per Tender notice No. SAT/gm/sand Transport/81-t 122 dated 7. 2. 81 and SAT/-GM/ transport/81 dated 4. 9. 81 were unlawful and void and that the defendants' company had' no right to accept the said tenders have said job and that the plaintiffs were entitled to be called or negotiating the rates quoted by them in the tenders sefty" by them on 1 0. 8 1 in respect of that transport objective or permanent injunction restraining the defendant cos. 1 and 2 from enter of acting/consider/accepting the tenders of Srorta Transport Agency and also restraining them from and the tenders submitted by the eligible tenders for the said job and that plaintiffs were entitled to be called for negotiating the rates quoted by them in response to the tenders submitted by them on 11.10.81 in respect of that transport job and for permanent injunction restraining the defendant nos. 1 and 2 from entertaining /considering/accepting the tenders of sreena transport Agency and also restraining them from disposing of the tender submitted by the eligible tenders without giving any opportunity to the plaintiffs for negotiating the rates quoted by them in response to the tender Notice Nos. SAT /gm/transport /81 dated 4. 9. 81. The plaintiffs filed also petition for temporary injunction under Order 39 Rules 1 and 2 Code of civil Procedure and obtained the ad-interim injunction against the defender nos. 1 and 2 till the disposal of the petition for temporary injunction. 3. SAT /gm/transport /81 dated 4. 9. 81. The plaintiffs filed also petition for temporary injunction under Order 39 Rules 1 and 2 Code of civil Procedure and obtained the ad-interim injunction against the defender nos. 1 and 2 till the disposal of the petition for temporary injunction. 3. THE petitioners Dilip Kumar Banerjee and Moloy Kumar Banejree carrying on business under the name and style of Sreena transport agency came to know about the suit and the ad-interim order of injunction already granted and got themselves added to the suit as defender Nos. 3 and 4. The defendant nos.- 3 and 4 then filed written objection to the plaintiffs' petition for temporary injunction and upon notice to the other parties to the suit filed also a petition for temporary injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure with a prayer for ad-interim injunction for restraining the defender nos. 1 and 2 from publishing any list of accepted tenders and giving affect to the tenders and allotting any work dated 6. 6. 85 so far as the tender work related to Tirat Colliery Bunker till the disposal of the suit. 4. LIE learned Manse by his order dated 12. 7. 85 while fixing the date for nearing of the petition for temporary injunction granted ad-interim order of injunction restraining the defendant nos. 1 and 2 from publishing tint list of accepted tender and iron: goring of the tender in respect of the 'fender No. SAT/gm/sand/trans/85/5083 dated C. 6. 85. The defendant No. 1 and 2 (Eastern Coalfields Ltd. and its Manager) tiled the Misc. Appeal No. 9 of 1 985 on 15. 7. 85 before the learned District Judge, Burdwan, against the learned munsifs aforesaid Order dated 12. 7. 85 and obtained the stay of the operation of the impugned order of the learned Munsif pending the disposal of the Misc. Appeal as per the learned district Judges' Order dated 15. 1. 85. 5. THAT defendant nos. 3 and 4 as respondents nos. 1 and 2 in the said misc. appeal, filed the petition before the learn on 23.7.85 for return (the memosted um of appeal after vacating the stay order and order admitting, the misc. appeal as in view of the notification issued by the High Court under section 21 (4) of the Bengal, Agra and Assar. 1 and 2 in the said misc. appeal, filed the petition before the learn on 23.7.85 for return (the memosted um of appeal after vacating the stay order and order admitting, the misc. appeal as in view of the notification issued by the High Court under section 21 (4) of the Bengal, Agra and Assar. Civil Courts act, 1887 (hereinafter referred to as the Act) with previous sanction of the State Government, the appeal from the decrees and orders of the Munsifs of Asansol lying to the District judge of Burdwan under section 2 1 (2) of the said Act shall be preferred to the Court of the Subordinate Judge (now the assistant District Judge) at Asansol. The defendant nos. 3 and 4 took also another objection by saying that in view of the decision in 1983 (2) C. L. J. 72, the stay of the operation of the impugned order of the learned Munsif granted by the district Judge in the misc. appeal against that order, was illegal. The learned District Judge by his impugned order dated 8. 8. 85 overruled all the objections of the defendant nos. 3 and 4 (respondent nos. 1 and 2 (1 and directed the continuance of the stay till the disposal of the misc. appeal. 6. THE defendant nos. 3 and 4 respondent nos. 1 and 2) being aggrieved by the impugned order has come to this court in revision. Mr. Saktinath Mukherjee appearing on behalf of the petitioner defendant nos. 3 and 4 has submitted that, in view of the notification issued by the High Court with the previous sanction of the State Government under section 21 (4) of the act directing that the appeals from the decrees and orders from the Munsifs at Asansol lying to the District Judge of burdwan under Section 21 (2) of the said Act shall be preferred to the Court of the Subordinate Judge at Asansol, the learned district Judge had no jurisdiction to admit the present misc. appeal and to grant the stay order at the time of such admission of the appeal, and that all carders of the learned District judge from the stage of admission of the misc. appeal are void and illegal. According to Mr. appeal and to grant the stay order at the time of such admission of the appeal, and that all carders of the learned District judge from the stage of admission of the misc. appeal are void and illegal. According to Mr. Mukherji, the learned District judge could have withdrawn the appeal to his file after its admission by the learned Subordinate Judge at Asansol either under section 22 of the Act or under section 24 of the Civil procedure Code. In support of has such submission Mr. Mukherji has relied on the decision in A.I.R. 1915 All. 18, A.I.R. 1975 all. 298 and A.I.R. 1971 Assam and Nagaland l22. 7. MR. Mukherji has further submitted that even it be assumed for the sake of argument without conceding that the district Judge has also jurisdiction to admit such appeal in spite of the High Court's aforesaid notification, still the learned District Judge has acted illegally by granting the stay of the operation of the impugned order against which the misc appeal was preferred, in violation of the principle of law enunciated by this High Court in 1983 (2) C. L. J. 72. 8. MR. Sudhis Dasgupa appearing for the opposite party plaintiffs has submitted that the notification under section 21 (4)of the Act has not taken away the jurisdiction of the District judge to entertain and admit the appeals from the decrees and orders of the Munsifs of Asansol out has only directed that such appeals which are to be filed before the District Judge, burdwan, under section 21 (2) of tire Act, shall be preferred to the Court of the Subordinate Judge at Asansol. According to Mr. Dasgupta, there was no fundamental lack of jurisdiction on the part of the District Judge to entertain and admit the appeals in view of section 21 (2) of the Act, and that the District Judge by admitting the misc. appeal in question in spite of the notification under section 21 (4) of the Act, has committed only the iregularly which may be ignored when it could not be shown that the said iregularity lias caused any prejudice to any party to the suit. Mr. appeal in question in spite of the notification under section 21 (4) of the Act, has committed only the iregularly which may be ignored when it could not be shown that the said iregularity lias caused any prejudice to any party to the suit. Mr. Dasgupta's further submission is that the source of jurisdiction of the District Judge in admitting the appeals is under section 21 (2) of the Act and that the High Court by issue of the notification under section 21 (4) of the Act has merely distributed the business of the admission of appeals from the Munsifs as a matter of convenience with reference to certain local area. Mr. Dasgupta in support of his such submission has relied on the decision in 53 C. W. N. 62 9 and 1981 (2) C. L. J. 26. As regards the merit of the impugned order of the learned district Judg, Mr. Dasgupta has submitted that to remove the injustice done, by the learned Munsif while granting ad-interim order of injunction in a blanket way without considering the extent and nature of the prayer of the party demanding ad-interim order of injunction, the Appellate Court in the misc. appeal against such order of the learned Munsif, can grant the stay of the operation of the impugned order till the disposal of the miscappeal only to meet the error of justice. 9. MR. T. K. Bose appearing for the opposite party nos. 4 and 5 (defendant nos. V and 2 in the suit) has adopted the submission of Mr. Dasgupta. 10. SECTION 2 1 of the Act deals with the appeals from the subordinate Judges and Munsifs. In the present case, this Court is concerned with the appeal from the decrees or orders of the Munsifs. Section 2 1 (2) of the Act is the relevant provision which provides that save as aforesaid, an appeal from a decree or order of the Munsif shall be to the District Judge. Sub-section (3) of Section 21 of the Act enjoy that where the, function of receiving any appeals which lie to the District Judge under Sub-section (2) has been assigned to additional Judge, appeals may be preferred Additional Sub-section (4) of Section 21 of the 1. Sub-section (3) of Section 21 of the Act enjoy that where the, function of receiving any appeals which lie to the District Judge under Sub-section (2) has been assigned to additional Judge, appeals may be preferred Additional Sub-section (4) of Section 21 of the 1. District judge a follows the High Court may, with the previous sanction of the State Government, direct, notification the Gazette, That fee is lying to the District judge under Subsection 2 from all or the decree or orders of any Musif shall preferred to the Court to the Court of subordinate judge motioned in the notification and the shall there upon referred accordingly It appliers from the high court Notification No. 4068 A date 7th June, 1920 that the High Court issued the said Notification under section 21 (4) of the Act with the previous sanction of Munsif at Asansol, lying to the District judge of Burdwan under section 21 (2) of the appalls from the District judge of Burdwan under section 21 (2)of the act providing the from where the appeals from the decrees or order of the munsif shall have to be read with sub section (3) and Sub section (4) of the Act. By issue of the Notification under 21 (4), the High court does not district that busness of the admisson of appeals from the decrees of order of the Munsif between the district judge and the subordinate from the decrees of the court Munsif of a particular area lying to the district Judge under section 21 (2) of the Act. Shall be preferred to the court of the subordinate Judge of that area, thereby restraining the District Judge to entertain such appeals by implication Law cannot and has not permitted two forums to admit appeals at the same time the source of admission of appeals from the decrees or order of the Munsif by the source of admission of such appeals which life to the district Judge is under section 21 (2) of the Act. the whereas the source of appeals from the decrees or orders of the under section 21 (4) of under Act The power of the District Judge to entertain and admitted appeals from the decrees or orders of the Munsif of a particular area remains suspended or in abeyance as soon as the High court with the previous sanction of the state Government issues notification under section 21 (4) OF the Act directing that appeals from the decrees or orders of the Munsif of that, area lying to the District Judge under section 21 (2) of the Act shall be preferred to the Court, of the subordinate Judge of that area If, however, such Subordinate: 'under as contemplated under section 2 1 (4) of the Act. remains absent from the station or the said office falls vacant because or the circumstance as mentioned in section 11 of the Act, then moor section. 11 (o) of the Act, the District. Judge may exercise all or any of the jurisdiction loin of that Court. 11. IN the case of Mangilal Agarwalla v. Jamunalal Agawalla and Ors. reported in A. I. R. 1971 Aassam and Nagaland 122, the question as in the present, case was raised in the revision application against the order dated 21. 12. 1970 of the District judge, Goalpara in Misc. Appeal No. 19 of 1970 admitting the appeal against the order of the learned Munsif and staying that, order passed by the learned Munsif in Title Suit No. 392 of 1970 in view of the notification Issued under section 11 (4)of the Act. D. M. Sen, J. did not referrer with the impugned order of the learned District Judge because the learned Disti. let judge admitted the appeal in the absence of the concerned Subordinate Judge (Assistant District Judge) contemplated under section 21 (4) of the Act and gave the benefit of section 11 (4)of the Act to the District Judge concerned. 12. THE other decision reported in A.I.R. 1915 All. 18 and A.I.R. 1973 All. 298 any of course nor on the point. In the case" reported in A.I.R. All. 18 (sheo Harakh v. Ramchander) it has been held by a Division Bench of the Allahabad High court that where the appeals lying a District Judge under sect ion 2 1 (2) of the Bengal N.F. Pande Assam Civil. Courts Act. 298 any of course nor on the point. In the case" reported in A.I.R. All. 18 (sheo Harakh v. Ramchander) it has been held by a Division Bench of the Allahabad High court that where the appeals lying a District Judge under sect ion 2 1 (2) of the Bengal N.F. Pande Assam Civil. Courts Act. (similar to fie Bengal, Agra, Assam Civil Courts Act.) are directed undone sect ion (4) to be preferred to the Court of a Subordinate Judge, the intention is that the appeals preferred accordingly should be hard and disposed of by the Subordinate Judge wit float any order of transfer of such appeals to his Court, under section 22 of the said Act. In file decision in A.I.R. 1973 All. 298 (M/s. Marwari sabha Piiakhwa v. Kanhaya Lal and Ors. the same principle of 1 as was enunciated in addition to the clear observation that. Sub-section (4) section 21 of the Act creates an entirely distinct forum of appeal. 13. OF the notification under section 21 (4) of the act in the present case, the Court of Subordinate Judge at asansol is entirely a district forum of admitting appeals from the decrees or orders of the Munsifs of Asansol and so long as the said notification remains in force, the form of the district Judge for entertaining and admitting such appeals under section 21 (2) of the Act shall remain suspended or closed by implication. J 14. IT has already been stated that the High Court by issue of the notification under section 21 (4) of the Act does not in distribute the business of admission of appeals from the decrees or orders of the Munsifs between the District Judge and Subordinate Judge of a particular area concerned, as the District judge under section 13 (2) of the Act, subject to general or special order of the High Court may assign or distribute the civil business to each of the Munsifs or Subordinate Judges if the same local jurisdiction is assigned to or more Munsifs or Subordinate Judges. The scope of section 13 (2) of the Act is quite different and distinct from that of section 21 (4) of the Act. The scope of section 13 (2) of the Act is quite different and distinct from that of section 21 (4) of the Act. In the case reported in 53 C. W. N. 639 (Jagabandhu Nandi v. Sivaprosad Bhattacharyya and Ors.) a suit in respect of the property situated at Titagarh was filed in the Court of first Munsif at Sealdah who had no territorial jurisdiction over the subject-matter although the First Munsif had the pecuniary jurisdiction. The successor-in-office of the First Munsif had neither the territorial nor the pecuniary jurisdiction over the subject-matter. According to the distribution of civil business under section 13 (2) of the Act, Titagarh wt s allotted to the Second Munsif at Sealdah who had jurisdiction the territorial and pecuniary' over the subject-matter. The successor of the First Munsif transferred the suit -tone Court of the second Munsif in anticipation of the District Judge's sanction. The order transferring the suit was challenged in revision in the High Court. It was held by Chakravarti, J. that the source of jurisdiction of a Munsif was the order under section 13 (1) of the Act and that an order made by the District Judge under section 13 (2) of the Act distributed as a matter of convenience and with reference to certain local areas, the civil business amongst two or more Courts each of which had jurisdiction over the whole area and that neither of the Courts lost jurisdiction which it had under the Government order made under section 13 (1) of the Act. The same principle of law was followed in the decision in 1981 (2) C. L. J. 26 (Silendrnath Mukherjee v. Stewart and Co. Ltd.). The facts and the not of issue involved in the aforesaid case are district different from the facts and point of issue in the present case and accordingly the principle of law laid down in the aforesaid does not in the present case. 15. IN view of what has been stated and discussed above, I hold that the High Court Notification under section 21 (4) of the Act in the present case, has suspended or closed the forum of the District Judge to entertain and the appeals from the decrees or orders of the Munsifs of, 'asansol so long as the said notification remains in force and has opened. The forum of the Subordinate Judge at Asansol' to entertain and admit such appeals and accordingly the fundamental or inherent jurisdiction of the District Judge to entertain and admit such appeals under section 2 1 (2) of the Act has, only ceased to function subject, however, to the provisions of section 11 (4) of the Act. 16. SUCH being the legal position, the learned District Judge, burdwan, has wrongly exercised his jurisdiction while entertaining and admitting the misc. appeal against the order of the learned Munsif of Asansol and such wrong exercise of jurisdiction is not a mere irregularity. The High Court after issuing the notification under section 21 (4) of the Act, cannot allow at the same time both the District Judge, Burdwan and the Subordinate Judge (now Assistant District Judge)-at Asansol to entertain and admit appeals from the decrees or orders of the Munsifs of Asansol to the creation of chaos in the judicial work and administration. On this ground alone not only the impugned order of the learned District Judge but also all his orders in the misc. appeal from the stage off its admission shall have to be set aside with a direction upon the learned District judge to return the memorandum of appeal to the filing Advocate for presentation to the proper forum. Without expressing any opinion on the merit of the misc. appeal if legally filed against the order of the learned Munsif granting ad-interim order of injunction till the disposal of the petition for temporary injunction., I may only say for guidance of the first appellate court that while admitting such misc. appeal, ifthe appellate court is confronted with a prayer for stay of the operation of the impugned order against which the misc. appeal has been preferred, the first appellate court being subordinate to the High Court is under obligation to follow the principles of law as enunciated in 1983 (2) C. L. J. 72 with regard to the feasibility of granting stay of the operation of the impugned order till the (disposal of the said misc. appeal, unless there is any other decision of this High to the contrary. 17. IN the result, this revisional application is allowed and the orders of the learned District Judge including the impugned order in the misc. appeal from the stage of the admission of the misc. appeal, unless there is any other decision of this High to the contrary. 17. IN the result, this revisional application is allowed and the orders of the learned District Judge including the impugned order in the misc. appeal from the stage of the admission of the misc. appeal are set aside with a direction upon the learned District Judge, Burdwan, to return the memorandum of appeal to the filing Advocate for its presentation to the proper forum. I made no order as to costs. The stay order granted by this Court, stands vacated. Let a copy of this order be sent immediately to the courts below. Application allowed.