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2006 DIGILAW 456 (JHR)

Saradindu Banerjee v. Sita Banerjee @ Rekha Banerjee

2006-04-25

N.N.TIWARI

body2006
ORDER Narendra Nath Tiwari, J. 1. In this writ application the petitioner has prayed for quashing the order dated 8.2.2006 passed in probate Case No. 3/01 by learned 1st Additional District Judge, Jamtara whereby the petitioners petition challenging his jurisdiction has been rejected. 2. The petitioner herein is the opposite party in the said probate case in the Court below whereas the respondent is the petitioner. The said respondent filed an application under Section 276 of the Indian Succession Act, 1925, [hereinafter referred to as the said Act], before the learned District Judge, Durnka for grant of probate of the will with regard to the property described In Schedule A and Schedule B of the plaint. This said applicant was appointed as the sole executrix of the will executed by one late Dr. Jagdish Chandra Banerjee. After creation of judgeshlp of Jamshedpur the said case was transferred to the Court of the learned 1st Additional District Judge, Jamshedpur. In the said case the petitioner of this case also appeared. The parties led evidences and the case was finally fixed for argument. At that stage the opposite party-petitioner filed an application challenging the jurisdiction of the said Court on the ground that Section 264 of the said Act only empowers the District Judge to grant probate in all the cases within the district and as such the Additional District Judge has no jurisdiction to deal with the said case. It was contended that since the said Court has no jurisdiction, the application is fit to be returned to the petitioner-respondent. A rejoinder was filed by the respondent stating, inter alia, that the said objection is wholly frivolous and has been deliberately raised at the final stage only in order to delay disposal of the case. It was further stated that the Additional District Judge on transfer exercises the same power of District Judge and the said Court has got jurisdiction to grant probate. 3. Learned Court below after hearing the parties and considering their respective contention, rejected the petitioners application holding that he has same jurisdiction as that of the District Judge and on transfer of the case to his Court by the District Judge he has got the same jurisdiction. 4. Mr. Anil Kumar, learned Counsel for the petitioner submitted that the proceeding of the said probate case before the Additional District Judge is wholly without jurisdiction. 4. Mr. Anil Kumar, learned Counsel for the petitioner submitted that the proceeding of the said probate case before the Additional District Judge is wholly without jurisdiction. The District Judge alone has got jurisdiction for granting and revoking probates and letters of administration in all the cases within his district and the Additional District Judge can not exercise the said Jurisdiction under the provision of Section 264 of the Act. Learned Counsel submitted that Section 2(bb) of the said Act defines the District Judge as the Judge of the Principal Civil Court of original jurisdiction. An Additional District Judge is not the Judge of Principal Civil Court of original jurisdiction and as such he does not come within the definition of the District Judge and he cannot deal with the cases for grant of probate. Learned Counsel placed reliance on a decision of Allahabad High Court in I.T.I. Ltd., Allahabad v. District Judge, Allahabad and Ors. reported in AIR 1998 All 313 . 5. Mr. A.K. Sahani, learned Counsel for the respondent, on the other hand, submitted that the Additional District Judge exercises the same power as that of the District Judge with respect to the cases transferred to him by the District Judge. He further submitted that Chapter II of Bengal, Agra and Assam Civil Courts Act (XII of 1887) deals with the Constitution of Civil Courts. Section 8 Clauses (1) and (2) of the said Act provides that when the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the State Government may, having consulted the High Court, appoint such Additional Judges as may be required. Additional Judges so appointed shall discharge any of the functions of the District Judges which the District Judge may assign to them, and in the discharge of those functions, they shall exercise the same powers as the District Judge. Learned Counsel submitted that there is absolutely no doubt that an Additional District Judge can exercise the jurisdiction in a case which is assigned to him by the District Judge. Learned Counsel placed reliance on a decision of the Division Bench of Patna High Court in Mt. Daho Kuer v. Mt. Turul Dei reported in AIR 1924 Pat 593 and a decision of Assam High Court (as then was) in Sagar Chaudhury and Ors. v. Nabin Ch. Chaudhury and Ors. Learned Counsel placed reliance on a decision of the Division Bench of Patna High Court in Mt. Daho Kuer v. Mt. Turul Dei reported in AIR 1924 Pat 593 and a decision of Assam High Court (as then was) in Sagar Chaudhury and Ors. v. Nabin Ch. Chaudhury and Ors. reported in AIR 1970 Assam and Nagaland 111. 6. In order to appreciate the rival contentions, it is necessary to look to the provisions of Bengal, Agra and Assam Civil Court Act (XII of 1887), hereinafter to be referred as the Civil Court Act, which deals with the constitution of Civil Courts. Section 8 of the said Civil Courts Act reads as follows: (1) When the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the State Government may having consulted the High Court appoint such Additional Judges as may be requisite. (2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them, and, in the discharge of those functions, they shall exercise the same powers as the District Judge. 7. It is clear from the aforesaid provisions of the said Civil Court Act that the Additional Distinct Judges exercise the same jurisdiction and discharge the same functions as the District Judge in the cases transferred to them. According to the definition provided in Section 2(bb) of the Indian Succession Act, District Judge means the Judge of a Principal Civil Court of original jurisdiction. When a case filed before the District Judge in its original jurisdiction is assigned or transferred to an Additional District Judge, he exercises the same power of the Principal Civil Court of original jurisdiction. The same view has been taken by the Division Bench of Patna High Court in Mt. Daho Kuer (supra). I respectfully subscribe to the said view of the Patna High Court. In the case of Sagar Chaudhury and others, supra, it has been held that the Additional District Judge appointed in that area under Section 6(1) of the Bengal, Agra and Assam Civil Courts Act must therefore be deemed to be a division Court of the Court of District Judge and not a separate and distinct Court of its own and the probate and letters of administration under Succession Act can also be issued by the Court of Additional District Judge in Assam. The same principle is also applicable for the Courts of the Additional District Judges in Jharkhand as it is also governed by the said Civil Court Act. So far the decision of Allahabad High Court relied on by the learned Counsel for the petitioner in the case of I.T.I. Ltd. Allahabad (supra) is concerned, it is on a different point and was rendered in the light of the provisions of Sections 2(e), 42 and 34 of the Arbitration and Conciliation Act, 1996. The provisions of Sections 2(e), 42 and 34 of the Arbitration and Conciliation Act, 1996 have no similarity with the provisions of Section 264 and the definition of the District Judge under Section 2(bb) of the Indian Succession Act. In that case learned Single Judge on the facts of the case had taken the following view in paragraph 12 of the said decision. As a result of the foregoing discussion and upon regard being had to the definition of terms "Court as elucidated in Section 2(e) and the overriding effect of Section 42 of the Act, I am persuaded to the view that the Court of the Additional District Judge is shorn of Jurisdiction to entertain an application under Section 34 of the Act and the District Judge cannot, by invoking the provisions contained in Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, 1887, transfer the application for its disposal to the Court of an Additional District Judge. An application for setting aside an award under Section 34 of the Act is as much as application "with respect to an arbitration agreement", it is for "setting aside the arbitral award" and it is a matter of statutory compulsion that such application is made to the principal Civil Court of original jurisdiction in a district or the High Court in exercise of its ordinary original civil Jurisdiction having jurisdiction to decide the questions forming the subject matter of arbitration if the same had been the subject matter of a suit and it is again a matter of statutory mandate that the Court to which the application is made alone shall have jurisdiction over the arbitral proceedings and all subsequent application arising out of that agreement, and the arbitral proceedings shall be made in that Court and in no other Court except the appellate Court being in seisin over the matter. The power to transfer/assign the application to any other Court, otherwise having jurisdiction to decide the questions forming the subject matter of arbitration had it been the subject matter of a suit, has been impliedly taken away by Section 42 of the Act which is couched in a language fraught with overriding effect. I am conscious of the fact that the view I am taking, may result in adding burden to the District Judge but the plain or unambiguous words of the Statue Le. words which are reasonable susceptible to only one meaning will have to be given effect irrespective of consequences- See Nelson Motis v. Union of India . 8. Learned Single Judge has thus rendered the said decision taking into consideration the provisions of Section 42 of the Arbitration and Conciliation Act, 1996 which begins with the non-obstante clause as follows: Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court. 9. There is no similarity in the provisions of the Arbitration and Conciliation Act, 1996 with that of the Indian Succession Act, 1925 and the facts and circumstances in which the said decision has been rendered is different and has got no application to the facts of the instant case. 10. In view of the aforesaid discussions and considerations, I find no error or illegality in the impugned order warranting any intervention of this Court in exercise of jurisdiction under Article 227 of the Constitution of India. 11. Apart from the above, the petitioner, after his addition as a party, contested the said case for years and when the evidences were closed and the case was at the final stage of argument, he has raised the preliminary question of jurisdiction of the Court which shows his mala fide. Learned Court below has rightly observed that the said objection was intended to delay the disposal of the case which is also apparent from the conduct of the petitioner. Learned Court below has rightly observed that the said objection was intended to delay the disposal of the case which is also apparent from the conduct of the petitioner. Since the case is for grant of probate and the same is pending since 2001, the Court below is directed to dispose of the same with utmost expedition.