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2005 DIGILAW 380 (GAU)

Amalendu Dutta v. Gumti Devi Sharma

2005-05-16

I.A.ANSARI

body2005
JUDGMENT I.A. Ansari, J. 1. The present Civil Reference has arisen out of the judgment and order, dated 15.06.2004, passed by the learned District Judge, Shillong, in RFA (TCA) No. 2(h)/2003, whereby the learned Single Judge, while allowing the appeal, made a reference to the High Court observing thus,"...pecuniary jurisdiction of the Munisff is uncertain till date and thereby causing lots of confusion and inconvenience to the litigants, lawyers and Courts. Therefore, I am of the view that the matter need to be referred to the Hon'ble High Court for the valuable opinion and direction". In terms of the directions given by Hon'ble the Chief Justice by order, dated 18.06.2004, passed in Civil Reference, the reference has been laid before this Court on the judicial side. 2. I have heard Ms. A. Pal, learned Counsel, who had appeared on behalf of the Appellant in RFA (TCA) No. 2(H)/2003 aforementioned. Looking into the importance of the subject matter of the reference, I have also heard Mr. S.R. Sen, learned Senior Counsel, as Amicus Curiae. 3. For proper appreciation of the subject of reference, the history of the pecuniary jurisdiction of the Munsiff, at Shillong, needs to be traced and in doing so, what needs to be borne in mind is that in the entire State of Meghalaya, there is only one Court of Munsiff and the same is located at Shillong. The question raised in the reference is, in short, this: what is the present pecuniary jurisdiction of the Munsiff at Shillong? 4. The question posed above brings me to Bengal, Agra and Assam Civil Courts Act, 1887, (hereinafter referred to as the Act of 1887), for, the constitution of the Civil Courts in the State of Meghalaya, the hierarchy thereof and the pecuniary jurisdiction of the respective Civil Courts are really traceable to the Act of 1887, the object of the Act being, as its preamble reveals, consolidation and amendment of the laws relating to Civil Courts in Benal, North-Western Provinces and Assam. We may also bear in mind that the State of Meghalaya was curved out of the State of Assam on 27th January, 1972. We may also bear in mind that the State of Meghalaya was curved out of the State of Assam on 27th January, 1972. Section 3 of the Act of 1887, which embodies the provisions relating to constitution of the Civil Courts, lays down that there shall be four classes of Civil Courts, these four classes of the Courts being the Courts of District Judge, Additional District Judge, Subordinate Judge and Munsiff. It may be noted that by an amendment of Section 3, which was introduced on 16.8.1967, the words 'Subordinate Judge' were substituted, in terms of Section 2 of the Assam Act XII of 1967, by the words' Assistant District Judge'. It may also be noted that Section 4 of the Act of 1887 empowers the State Govt. to fix the number of the Civil Courts aforementioned. 5. Before proceeding further, one may point out that Chapter III of the Act of 1887 embodies the provisions relating to pecuniary jurisdiction of the Civil Courts. It is Section 19, contained in Chapter III of the Act, 1887, which lays down the extent of the pecuniary jurisdiction of the Munsiffs. Section19 has undergone amendments from time to time before undergoing the present amendments, the relevant portions of Section 19 read as follows: 19. Extent of jurisdiction of Munsiff- (1) Save as aforesaid, and subject to the provisions of Sub-section (2) the jurisdiction of a Munsiff extends to all like suits of which the value does not exceed one thousand rupees. (2) The State Government may, on the recommendation of the High Court, direct, by notification in the Official Gazette, with respect to any Munsiff named therein, that his jurisdiction shall extend to all like suits of such value not exceeding two thousand rupees as may be specified in the notification. [Provided that the State Government may, by notification in the Official Gazette, delegate to the High Court its powers under this Section] 6. [Provided that the State Government may, by notification in the Official Gazette, delegate to the High Court its powers under this Section] 6. From a careful reading of Section 19 of Act of 1887, as it, originally, stood, what transpires is that while under Sub-section (1) of Section 19 of the Act of 1887, the pecuniary jurisdiction of the Munsiffs was confined to suits of value not exceeding rupees one thousand, Sub-section (2) of Section 19 made provisions empowering the State Government to vest, by name, on the recommendation of the High Court, any Munsiff with the pecuniary jurisdiction to try suits of such value not exceeding two thousand rupees. 7. A combined reading of Sub-section (1) and (2) Section 19 clearly reveals that while, ordinarily, the pecuniary jurisdiction of every Munsiff was to have remained one thousand rupees, the High Court could have, depending upon the place of posting of the Munsiff and the relative merit of the individual concerned, recommend to the State Government to confer on such a Munsiff the pecuniary jurisdiction to try suits of value of two thousand rupees. On such recommendation being made, the State Govt. could have by notification in the official Gazette, vest, naming the Munsiff therein, the jurisdiction to try suits up to the value of two thousands rupees. In other words, while the pecuniary jurisdiction of the Munsiff(s), in general, was to have remained confined to one thousand rupees only, it was possible for the State Government to extend the pecuniary jurisdiction of the Munsiffs, in particular, to two thousands rupees. To put it differently, while the pecuniary jurisdiction of the Munsiffs could not have, ordinarily, been extended beyond one thousand rupees, a Munsiff could have been vested, by name, with the pecuniary jurisdiction to try suits up to the value of two thousand rupees. 8. By the Assam Act IX of 1965, Section 19 of the Act of 1887 was amended. The relevant provisions of the Assam Act IX of 1965 are quoted herein below: Assam Act IX of 1965 Amendment Act, 1965. 2. 8. By the Assam Act IX of 1965, Section 19 of the Act of 1887 was amended. The relevant provisions of the Assam Act IX of 1965 are quoted herein below: Assam Act IX of 1965 Amendment Act, 1965. 2. In Section 9 of the Principal Act, (1) In Sub-section (1), for the words "one thousand rupees" at the end the words "Three thousand rupees" shall be substituted: (2) for Sub-section (2) the following shall be substituted, namely: (2) The State Government may, on the recommendation of the High Court, direct, by notification in the Official Gazette with respect to any Munsiff named therein that his jurisdiction shall extend to all like suits... of not exceeding five thousand rupees as may be specified in the notification: Provided that the State Government may, by notification in the official; Gazette, delegate to the High Court its powers under this Section. 9. It is clear from what has been quoted hereinabove that by virtue of the amendment made by the Assam Amendment Act IX of 1965, the ordinary pecuniary jurisdiction of the Munsiffs was extended to three thousand rupees and the State Government was given the power to vest, on the recommendation of the High Court, in any Munsiff, named therein, pecuniary jurisdiction to try suits of value not exceeding five thousand rupees. Thus, while the pecuniary jurisdiction of the Munsiffs, in general, was raised to three thousand rupees, the State Government was empowered, in terms of Sub-section (2) of Section 19, to raise pecuniary jurisdiction of any particular Munsiff(s) to five thousand rupees. 10. I may pause, at this stage, to point out that the proviso to Sub-section (2) of Section 19 further makes it clear that the State Govt. may, by notification in the official Gazette, delegate to the High Court its power under Section 19 meaning thereby that if empowered by the State Govt., the High Court can, instead of recommending to the State Government, directly vest in any Munsiff, by name, the jurisdiction to try civil suits of value not exceeding two thousand rupees. 11. By Notification, dated 1.6.1966, the Government of Assam delegated to the High Court the State Government's power under Sub-section (2) of Section 19. The relevant Notification, dated 1.6.1966, is quoted below: ... 1st June, 1966. No. LGL. 11. By Notification, dated 1.6.1966, the Government of Assam delegated to the High Court the State Government's power under Sub-section (2) of Section 19. The relevant Notification, dated 1.6.1966, is quoted below: ... 1st June, 1966. No. LGL. 4461/64- In exercise of the powers conferred by the proviso to Sub-section (2) of Section 19 of the Agra and Assanr Civil Courts, (Assam) Amendment Act 1965, the Governor of Assam, is pleased to delegate the powers of the State Government under the said section of the High Court of Assam and Nagaland with immediate effect. B. Sarma Secy. to the Govt., of Assam Law Deptt 12. What follows from the Notification, dated 01.06.1966 aforementioned is that the High Court, having been delegated, under the Proviso to Sub-section (2) of Section 19, with the power to vest any Munsiff, by name, jurisdiction to try civil suits, acquired, in terms of the amendment Act IX of 1965, the power to enhance the pecuniary jurisdiction of any particular Munsiff(s) to five thousand rupees. Thus, while the pecuniary jurisdiction of the Munsiffs, in general, was raised to three thousand rupees, the High Court could, in terms of the Notification, dated 1.6.1966, raise the pecuniary jurisdiction of any particular Munsiff(s), in terms of the Proviso to Sub-section (2) of Section 19, to five thousand rupees. 13. In fact, from the Gazette notification dated 11.3.1972, it appears that the High Court vested one Shri Satyendra Nath Deka, Munsiff, with power to try suits of value not exceeding five thousand rupees, for, the relevant notification reads as follows: The 11th March 1972 [Published in the Assam Gazette, (Part II B) dated 22nd March 1972] No. HC. VII-32/66/1931/A.- In exercise of the powers delegated to the High Court under the proviso to Sub-section (2) of Section 9 of the Bengal, Agra and the Civil Court's (Amendment), Act 1965 read with Section 19(2) of the said Act, the Court is pleased to invest Shri Satyendra Nath Deka, Munsiff with the powers all suits cognizable by the Civil Court upto and inclusive of the value of Rs.5,000/-. The power is personal to the officer concerned and may be exercised by all stations. 14. The power is personal to the officer concerned and may be exercised by all stations. 14. The Notification, dated 11.3.1972, aforementioned also makes it clear that the power to try suits of the value of five thousand rupees given to Sri Satyendra Nath Deka was personal to him and could have been exercised by him at all Stations. This, in turn, further shows that notwithstanding the Notification, dated 11.3.1972 aforementioned, the ordinary pecuniary jurisdiction of the Munisiffs, in general, remained limited to rupees three thousand. It is, however, not discernible from the materials on records as to whether Sri Satyendra Nath Deka aforementioned ever served as a Munsiff at Shillong or not. 15. Be that as it may, the State of Meghalaya was carved out of the State of Assam on 27th January, 1972, and adopted the Laws and Orders of Assam by the Meghalaya Adaptation of Laws Order (No. 1) 1974. In terms of the Meghalaya Adaptation of Laws Order (No. 1), 1974, the Act of 1887 with all its amendments and with all Notifications issued thereunder by the State Government of Assam stood adopted by the State Government of Meghalaya. 16. Moreover, by virtue of the North-Eastern Areas (Reorganization) Act, 1971, the Gauhati High Court became he common High Court for, amongst Ors., the State of Meghalaya. 17. In course of time, the Meghalaya Act 10 of 1983 amended the Act of 1887. The amendment, having received assent of the President of India on 23.9.1983, came to be published in the official Gazette of Meghalaya on 3.10.1983. The relevant portion of the Amendment Act 10 of 1983 reads as follows: Meghalaya Act 10 of 1983 The Bengal, Agra, Assam and Shillong Civil Courts (Meghalaya Amendment) Act, 1983 (As passed by the Assembly) (Received the Assent of President on the 23rd September, 1983) (Published in the Gazette of Meghalaya, Extra ordinary dated the 3rd October 1983) 3. It shall come into force at once. (Amendment of Section 19 of the Principal Act.) 2. In Section 19 of the Principal Act, in Sub-section (2), for the words, "five thousand rupees", the words "ten thousand rupees" shall be substituted. 18. By the amendment, which was, thus, introduced by the Meghalaya Act 10 of 1983, Sub-section (2) of Section 19 stood amended by the Govt. (Amendment of Section 19 of the Principal Act.) 2. In Section 19 of the Principal Act, in Sub-section (2), for the words, "five thousand rupees", the words "ten thousand rupees" shall be substituted. 18. By the amendment, which was, thus, introduced by the Meghalaya Act 10 of 1983, Sub-section (2) of Section 19 stood amended by the Govt. of Meghalaya with the words "five thousand rupees" having been substituted by the words" ten thousand rupees" 19. On a careful survey of the provisions of the Act of 1887, the amendment made thereto from time to time and the Notifications, issued thereunder what emerges is that initially, the pecuniary jurisdiction of the Munsiffs, in general, was one thousand rupees and the State Government, on recommendation of the High Court, could have vested, by publication of Notification, any particular Munisiff(s), named therein, with the pecuniary jurisdiction to try suit of value of two thousand rupees. The ordinary pecuniary jurisdiction of the Munsiffs, in general, was enhanced by the Assam Act of 1985 to three thousand rupees and under Sub-section (2) of Section 19, the Govt. of Assam was empowered to enhance, in the case of any particular Munsiff(s), the pecuniary jurisdiction to five thousand rupees. By Notification, dated 01.06.1966, issued in terms of the Proviso to of Sub-section (2) of Section 19, the Government delegated its power to the High Court and in exercise of this power, one Sri Satyendra Nath Deka, the then Munsiff, was empowered by the High Court to try suits of value of five thousand rupees. As already pointed out above, the State of Meghalaya was carved out of State of Assam in January, 1972, and by means of the Meghalaya Adaptation of Laws Order (No. 1), 1974, the newly created State of Meghalaya adopted the Law and Orders of the State of Assam meaning thereby that the Act of 1887 with all its amendments and notifications issued thereunder, which were in force in Assam, came into force in respect of the Civil Courts in Meghalaya including the sale Court of Munsiff at Shillong. The further effect of this adaptation of the Act of 1887 was that the pecuniary jurisdiction of the Munsiff, at Shillong, remained, ordinarily, three thousands of rupees; but in the case of individual Munsiff(s), the High Court retained the power to vest any Munsiff with the pecuniary jurisdiction to try suits up to the value of five thousand rupees. Thereafter, in terms of the Meghalaya Amendment Act of 1983 read with the Notification, dated 1.6.1966, aforementioned, the power was vested in the High Court to confer, in terms of Sub-section (2) of Section 19, the pecuniary jurisdiction on the Munsiff, at Shillong to try suits of value up to ten thousand rupees. However, no such notification has yet been issued. The consequence is that till today, the pecuniary jurisdiction of the Munsiff at Shillong has remained five thousand rupees, though the same could have been extended up to ten thousand rupees. 20. It has been pointed out at the Bar that the Registrar General of the Gauhati High Court has requested vide his letter, dated 03.06.04, the Registrar, Shillong Bench to take up with the Govt. of Meghalaya the issue of delegation of power on the Munsiff at Shillong, now, re-designated as Civil Judge (Junior Division). However, in the light of what has been discussed above, it is clear that no such delegation of power is necessary, for under the Notification, dated 1.6.1996, aforementioned, the High Court has already been delegated with the power to vest, by name, in terms of the proviso to of Sub-section (2) of Section 19, the Munsiff, at Shillong, with the pecuniary jurisdiction to try suits up to rupees ten thousand. Hence in the light of the provisions of the Meglahaya Amendment Act of 1983, coupled with the Notification, dated 1.6.1996, and by virtue of the Meghalaya Adaptation of laws Order (No. 1), 1974, the High Court does not require further delegation of power under the proviso to Sub-section (2) of Section 19 of the Act of 1887. The consequence is that the High Court can, by notification, confer on the Munsiff, at Shillong, pecuniary jurisdiction to try suits up to ten thousand rupees. 21. The consequence is that the High Court can, by notification, confer on the Munsiff, at Shillong, pecuniary jurisdiction to try suits up to ten thousand rupees. 21. It has also been submitted at the Bar that because of the misunderstanding and confusion with regard to the pecuniary jurisdiction of the Munsiff, at Shillong, the tenants have found it very difficult to deposit rents in Court and it will be just and fair for the High Court to confer pecuniary jurisdiction on the Munsiff, at Shillong, to try suits up to ten thousand rupees with retrospective effect so as to validate the deposit of rents already made under the Urban Areas Rent Control Act. Under the scheme of the law, which we follow in India, which is same as in England, but unlike what is the scheme of law in the United States of America, it is possible to make laws with retrospective effect for validating an act or omission. However, as far as the High Court's power under Sub-section (2) of Section 19 is concerned, this power can be exercised only prospectively, for, the Act of 1887 does not empower the High Court to issue notification vesting pecuniary jurisdiction on any Munsiff with retrospective effect. Viewed from this angle, the reference made by Ms. Pal to the case of Madan Mohan Singh v. Bhirginath Singh and Ors. reported in AIR 1952 Pat. 282 (DB), is not of much assistance, for, it is for the State Government to make laws validating the deposit of the rents with the Munsiff, at Shillong, under the Urban Areas Rent Control Act. 22. However, in view of the fact that the letter, dated 3.6.2004, aforementioned of the Registrar General of the Gauhati High Court clearly shows that the Registry is conscious of the fact that the pecuniary jurisdiction of the Munsiff, at Shillong, needs to be enhanced, the Registry is hereby directed to lay the matter before the Hon'ble Chief Justice for consideration, if in terms of the provisions of Sub-section (2) of Section 19 of the Act of 1887, the pecuniary jurisdiction of the Munsiff, at Shillong, to try suits deserved to be extended to ten thousand rupees, which, if I may reiterate, is permissible by virtue of the Meghalaya Amendment Act, 1983. 23. With the above observations and directions to the Registry this Civil Reference shall stand disposed of.