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1995 DIGILAW 264 (CAL)

Sk. Farron All v. Habiban Bibi

1995-07-19

Bijitendra Mohan Mitra

body1995
JUDGMENT Bijitendra Mohan Mitra, J. This is an application under s. 24 of the Code of Civil Procedure for transfer of a pending lis from the concerned Court of South 24 Parganas to that of North -24 Parganas. The connected suit was for partition and, as usual, as a partition suit, the suit is an old one of the year of 1973. The said suit was decreed in a preliminary form on 25th August, 1989 and thereafter steps are being taken in the pending lis for drawing up of the final decree. In fact, this Court has been apprised that approximately four sittings of the Commission has already taken place and it is in the process of continuation. . The filing of the present petition under s. 24 CPC is preceded by filing of an earlier petition which is one of composite nature under s. 115 CPC read with s. 24 CPC and this Court summarily rejected the said petition as, according 10 the opinion of this Court, such a petition of composite nature is not maintainable. It has been contended that as the Court did not advert into the merit of the petition but as the form of the petition appeared to be defective because of the conglomeration of composite aspects of s. 115 read with s. 24 CPC, therefore, there was no disposal of the said petition on merits and, as such, dismissal of the earlier petition shall not bar the presentation of the instant petition under s. 24 CPC. This Court has allowed the petitioner to move this petition under s. 24 CPC after being prima facie satisfied upon the bone of contention raised by the petitioner in the instant petition and the petitioner has invited scrutiny by this Court with regard to the point sought to be raised in this petition. 2. Mr. Bagchi, learned Advocate appearing on behalf of the petitioner, has contended that on the material date of filing of the suit there was a composite district known as 24 Parganas which was bi-furcated and the said bi-furcation into North 24 Parganas and South 24 Parganas was put into effect from 2nd January, 1989. According to Mr. Bagchi, after the original composite district was bi-furcated, the original district as pre-existing lost its entity and new districts have emerged in lieu and instead of the old one. According to Mr. According to Mr. Bagchi, after the original composite district was bi-furcated, the original district as pre-existing lost its entity and new districts have emerged in lieu and instead of the old one. According to Mr. Bagchi, the suit after being tried should not be allowed to continue before a forum of a district which is non-existing and, as such, it should be allowed to be transferred to the concerned Court of North 24 Parganas which has assumed jurisdiction. A reference may be made to the notification, vide Order No. 438-G dated 26.11.88, from which it appears that the same was given effect to from 2.1.89 as a result whereof the previous district of 24 Par-l ganas, was bi-furcated into two separate districts and the police stations to be covered under North 24 Parganas District were mentioned in the said notification. It is significant to mention that a preliminary decree was passed by the concerned Court as early as on 25.8.89 when the notification did not come into effect. Pursuant to the preliminary decree, a final decree was attempted to be drawn up and no objection was taken at the time of drawing up of the preliminary decree. Now the objection that has been sought to be raised is at a juncture when several sittings of the Partition Commissioner have already taken place. It further appears that from 2.1.89 much time has been allowed to pass and many things have happened in the pending lis. 3. Mr. Bhattacharjee, appearing on behalf of the caveator-objector has tried to repeal to an obiter dictum of a Division Bench judgment of Patna High Court reported in AIR. 1856 Patna 280 in the case of Iswar Mahato & Anr. vs. Naipal Singh & Ors. Though the observations made by the Division Bench of Patna High Court were in the nature of an obiter dictum but still to clarify doubts, so that the same may be a guideline, it has been observed there that' a mere notification issued by the State Government under Ss. 13(1), 14(1) of Bengal, Agra and Assam Civil Courts Act altering the legal limits of jurisdiction of the Civil Court in the result in the old Court losing its jurisdiction even on matters already then pending before it. 13(1), 14(1) of Bengal, Agra and Assam Civil Courts Act altering the legal limits of jurisdiction of the Civil Court in the result in the old Court losing its jurisdiction even on matters already then pending before it. In the cited decision, a reference may be made about s. 17 of the said Act with special stress on the verb used there, namely, 'may' and not 'shall' which according to the opinion of the Division Bench shows that the jurisdiction of the old Court over suits pending before it 'in relation to properties lying in areas excluded by notification continues even on its operation and publication. This Court has given its anxious consideration to it and has also tried to assess the import of the expression 'may' as included in s. 19 of Bengal, Agra and Assam Civil Courts Act with regard to the pending cases and in terms of ordinary well-settled meaning of construction of statute the same should not affect the pending lis or cases which were found pending on the date of the notification. If any departure is made from the construction of Ss. 13(1) and 14(1) of the Act as aforesaid, from the guideline to the suit from the obiter dictum of the said judgment then it may lead to some such anomalies which can also result in creation of welter confusion in the field of administration of justice. Then the preliminary decree itself has been passed by the Court concerned and the validity of its survival may be open to doubts and questions. This Court after being alive of the propositions of consistent trend of decisions of the Apex Court of the well-known construction of statutes made by the celebrated authorities is of the view that such notification should not affect the pending cases nor can it take away the jurisdiction of the suits which were pending at the material date before coming into force of the notification. The transshipment of records after the notification in the light of the date may create further fatal delay and they may further delay the termination of controversy. The transshipment of records after the notification in the light of the date may create further fatal delay and they may further delay the termination of controversy. As such, this Court is of the view after careful consideration that the notification issued by the State Government under Bengal, Agra and Assam Civil Courts Act altering the legal limits' of jurisdiction of civil courts cannot result in loss of jurisdiction of the erstwhile Court or of the Court so transplanted which were already pending. In that view of the matter, this Court is not in a position to be in agreement with the limb of submission of Mr. Bagchi but this Court appreciates the nature of submissions made by Mr. Bagchi. There is another facet of dimension of the, present controversy from which it appears that s. 24 can be invoked only with regard to pending proceedings of suit before a particular Court and if Mr. Bagchi contends that the Court is denuded of the jurisdiction to proceed' with the matter, then probably the same cannot be construed as pending on the date when the petition under s. 24 CPC is pressed into service. The pre-requisite condition for invoking s. 24 CPC is that lis must be pending in that Court and with regard to the pendency of the lis before that Court there cannot be any question and other questions pertaining to the grounds of transfer can only be agitated barring the grounds about the erosion of pendency of a proceeding or suit. The ground taken by Mr. Bagchi in view of the fact that as this Court opines that the concerned Court is competent to try the same and the matter is pending before that Court and no other ground is canvassed before this Court seeking transfer, accordingly the ground as sought to be put in by Mr. Bagchi cannot be taken into account as a ground for transfer under s. 24 CPC. This will only cause delay if the Court is made to leap into the abysmal pit of procedural wranglings. Bagchi cannot be taken into account as a ground for transfer under s. 24 CPC. This will only cause delay if the Court is made to leap into the abysmal pit of procedural wranglings. It is well known that procedures are handmade of justice and they cannot be upgraded to the leval of mistress of justice and in this case even consideration of justice does not demand that the case should be transferred after lapse of a considerable period of time on any question on the part of the revisionist petitioner before the passing of the preliminary decree and even after that by participation in many of the Commission work. The point of law is covered by way of an answer as recorded in this judgment. Accordingly, this Court is not in a position to entertain the petition under s. 24 CPC for the reasons as aforesaid. Therefore, the petition under s. 24 of the Code of Civil Procedure fails and stands dismissed on contest. There shall be no order as to costs. Application dismissed.