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2008 DIGILAW 190 (KAR)

B. S. Suryanarayana Rao v. Hidayuthunnissa Begum

2008-03-19

A.N.VENUGOPALA GOWDA

body2008
ORDER A.N. Venugopala Gowda, J. Sri B. Sanjeevaiah S/o Narasappa had instituted O.S. 39/1958, on the file of the Munsiff at Chitradurga against Sri Vulavaramuthuru, for judgment and decree of declaration that the suit schedule properties were purchased from Sri Thimmegowda in the name of defendant, benami for the defendant on 4,7.1946 and the defendant is bound by the agreement to sell the suit properties to the plaintiff after the discharge of the debt by the plaintiff to the defendant. A direction was also sought to the defendant, to execute a sale deed. During the pendency of the suit B. Sanjeevaiah having passed away, his LRs, have prosecuted the suit. By judgment and decree dated 23.2.1967, suit was dismissed, against which RA. 36 of 1967 was filed in the Court of Civil Judge, Chitradurga. The said appeal was transferred to the Court of District Judge, Chitradurga, wherein it was re-numbered as RA. 5 of 1969. During the pendency of the appeal, Mysore Agricultural Debtors Relief Act, 1966 (‘MADR Act’, for short), having come into force with effect from 18.4.1969, taking into consideration contentions raised by respondent in the appeal, Appellate Court exercising the jurisdiction conferred under Section 18(1) of the MADR Act, ordered the transfer of appeal to MADR Court, namely, Court of Munsiff, Chitradurga, for necessary action. After receiving the record, case was registered and numbered as MADR No. 12285/1969 on the file of MADR Court. Case was transferred to the Court of Munsiff at Hiriyur in the year 1987 and re-numbered as MADR No. 250/1987. The proceedings in the said case has abated, in view of the repeal of the MADR Act, with effect from 27.12.1984. On 11.11.1996, petitioner had filed a petition in the Court of Civil Judge, Chitradurga, under Order 9, Rule 9 of CPC, seeking restoration of said appeal, alongwith an application under Section 5 of Limitation Act, for condonation of delay. Said petition without being numbered, application filed under Section 5 of Limitation Act, was dismissed by the Civil Judge, (Sr. Dn.), Chitradurga, by an order dated 31.1.2003. Thereafter, petitioner has filed Misc. 7 of 2003 under Order 43, Rule 1 CPC before the District Judge, Chitradurga, who by the impugned order dated 7.4.2005, has dismissed the appeal, confirming the order passed by the Civil Judge (Sr. Dn.,) Chitradurga, in the said unnumbered Miscellaneous Petition. Being aggrieved, this writ petition has been filed. 2. Thereafter, petitioner has filed Misc. 7 of 2003 under Order 43, Rule 1 CPC before the District Judge, Chitradurga, who by the impugned order dated 7.4.2005, has dismissed the appeal, confirming the order passed by the Civil Judge (Sr. Dn.,) Chitradurga, in the said unnumbered Miscellaneous Petition. Being aggrieved, this writ petition has been filed. 2. Heard learned Counsel appearing for the parties and perused the record of writ petition. 3. Sri R.N. Prakash, learned Counsel appearing for petitioner contended that, order dated 31.1.2003 passed both in the unnumbered miscellaneous Petition of 1996 and confirmed in R.A. 7 of 2003 on 7.4.2005, a illegal and without jurisdiction. He contended that, there was a bona fide mistake committed by petitioner in approaching Civil Judge (Sr. Dn.), Chitradurga by filing a petition under Order 9, Rule 9 CPC along with I.A. 1 for condonation of delay. Since LA. 1 in the said petition was dismissed and consequently the petition was held to be barred by time, learned District Judge has failed to exercise the jurisdiction vested in him in not setting aside the impugned order before him. He contended that, lower Court having noticed the abatement of MADR proceedings, has erred in dismissing the appeal. He contended that, despite noticing the illegality committed by the learned Civil Judge, {Senior Division}, the District Court has not interfered, which amounts to failure to exercise jurisdiction vested in it. He contended that this Court exercising the writ jurisdiction, can correct the mistakes committed by the Courts below and since the appeal abated only on account of repeal of the Act and not on account of any acts attributable to petitioner, this Court should mould the relief and direct the restoration of appeal to its file and to proceed with R.A. 5 of 1969 for disposal in accordance with law. 4. Per Contra, Sri Sundar Raj, learned Counsel appearing for respondents, contended that, it was the petitioner who had approached the Court of Civil Judge, {Senior Division}, with a petition under Order 9, Rule 9 of CPC along with I.A. 1 for condonation of delay, that too, after a long lapse of time and he having chosen the forum, cannot find fault with the order after the same has gone against him. He contended that, petition filed in the Court of Civil Judge (Senior Division) being highly belated, Court was justified in dismissing LA. He contended that, petition filed in the Court of Civil Judge (Senior Division) being highly belated, Court was justified in dismissing LA. 1 and consequently rejecting the petition. He contended that, since the order was challenged in the appeal, District Court taking into consideration, the acts of acquiescence on the part of petitioner in not taking any steps to agitate the matter and since there was long unexplained delay even after knowledge of the disposal of unnumbered Misc. Petition, the Court below is justified in dismissing the appeal. He further contended that, in view of the provisions of Prohibition of Benami Transaction Act, 1988, no purpose would be served in restoring R.A. 36 of 1967 to the file and hence, this is not a case of failure to exercise the jurisdiction vested in the Courts. Learned Counsel made submission generally in support of the impugned order. 5. Considering the rival contentions and on perusal of the record, the points that arise for my consideration are: (i) Whether the Court of Civil Judge, (Senior Division) Chitradurga, had the jurisdiction to entertain the petition? (ii) Whether the District Court had the jurisdiction to entertain the appeal? (iii) Whether the Courts below have committed material illegality in exercising the jurisdiction and in passing the impugned orders? (iv) In the facts and circumstances of the case, whether RA No.5 of 1969 (Old No. RA 36 of 1967) should be directed to be restored, to the file of the competent Court, for disposal in accordance with law? 6. Facts of the case, as noticed hereinabove, are not in dispute. In the unnumbered Miscellaneous Case, wherein the order dated 31.1.2003 was passed by the learned Civil Judge (Sr. Dn.), Chitradurga, the Court did not notice and consider, whether it had jurisdiction in the matter. Instead, it has taken into consideration, the Prohibition of Benami Transaction Act, 1988, and without entering into any finding, on the ground of delay, it has dismissed I.A. 1, consequently, has dismissed the petition as barred by time. In appeal, learned Additional District Judge, Chitradurga, has held as follows: “8. The history of the case, thus, shows that the appellants could not have moved the application under Order IX, Rule 9 of CPC and sought for restoration of RA. 36 of 1967 before the Court of Civil Judge (Senior Division), Chitradurga particularly as the appeal was withdrawn to the Court. The history of the case, thus, shows that the appellants could not have moved the application under Order IX, Rule 9 of CPC and sought for restoration of RA. 36 of 1967 before the Court of Civil Judge (Senior Division), Chitradurga particularly as the appeal was withdrawn to the Court. of District Judge, Chitradurga and was renumbered as RA 5 of 1969. It was the Court of District Judge, Chitradurga which had referred the matter to the MADR Court. On abatement of MADR proceedings, the parties could have only requested the District Court to restore the appeal and such restoration could not have been ordered by the Court of Civil Judge (Senior Division), Chitradurga. Therefore, the petition filed under Order IX, Rule 9 of CPC and also the delay condonation application filed before the Court of Civil Judge (Senior Division), Chitradurga, in my considered view, were wholly not maintainable. Therefore, it would not be just and prQper for this Court to interfere with the impugned order.” 7. From the perusal of the order, it is clear that, though it was held that the Court of Civil Judge (Senior Division), had no jurisdiction, on the ground of delay, the appeal was dismissed. The learned District Judge, having noticed the fact that, the parties could have only requested the District Court to restore the appeal and such restoration could not have been ordered by the Court of Civil Judge (Senior Division) and the petition before the Civil Judge (Senior Division), being wholly not maintainable, ought to have set aside the order impugned in the appeal, on the ground that the Court, which has not been conferred with the jurisdiction or which has no jurisdiction in the matter, was not competent to render any finding, other than on the maintainability aspect. Any order passed either regarding delay or on the merit etc., other than the order regarding maintainability by a forum/Court, which has no jurisdiction, is a nullity. Since the District Court has rightly held that the petition before the Civil Judge was wholly not maintainable, the order passed by the Civil Judge dismissing the petition on the ground of delay, being without jurisdiction, should have been set aside, enabling the petitioner to seek remedy before the competent Court vested with the jurisdiction. Since the District Court has rightly held that the petition before the Civil Judge was wholly not maintainable, the order passed by the Civil Judge dismissing the petition on the ground of delay, being without jurisdiction, should have been set aside, enabling the petitioner to seek remedy before the competent Court vested with the jurisdiction. Learned Additional District Judge, by dismissing the appeal on the ground of delay has also committed the same illegality, as was committed by the learned Civil Judge (Senior Division). 8. Hon’ble Supreme Court in the case of Athmanathaswami Devasthanam Vs. K. Gopalaswami Ayyangar, reported in AIR 1965 SC 338 , considering the contention that when the Civil Court had no jurisdiction over the suit, the High Court could not have dealt with the cross objection filed by the appellant with respect to the adjustment of certain amount paid by the respondent, has held as follows: “When the Court had no jurisdiction over the subject matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint.” 9. In the case of Harshad Chiman Lal Modi Vs. D.L.F. Universal Limited and Another, reported in AIR 2005 SC 4446, Hon’ble Supreme Court considering the contention regarding the jurisdiction of the Court to entertain the petition and the validity of the orders passed when it has no jurisdiction, has held as follows: “28. We are unable to uphold the contention. The jurisdiction of a Court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and. (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter however, is totally distinct and stands on a different footing. Where a Court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute charter or commission. it cannot take up the cause or matter. Jurisdiction as to subject matter however, is totally distinct and stands on a different footing. Where a Court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute charter or commission. it cannot take up the cause or matter. An order passed by a Court having- no jurisdiction is nullity.” (emphasis supplied by me) 10. In view of the fact that the Courts below had no jurisdiction to entertain the petition and appeal, .filed by the petitioner and as the petitioner instead of approaching the District Court for restoration of RA 5 of 1969 (Old No. RA 36 of 1967), had approached the wrong forum i.e., the Civil Judge (Senior Division), the petition could not have been dismissed on any ground, other than the maintainability. If it had been held that, the Court had no jurisdiction, the petitioner would have resorted to the remedy of approaching the District Court to restore RA 5 of 1969, which stood abated only on account of the repealing of MADR Act. Since the learned Civil Judge had rendered certain findings in the order and had dismissed the petition by making certain observations and ultimately as barred by time, the petitioner has questioned the said order before the District Court in the Miscellaneous Appeal. District Court having found that the petition filed before the Civil Judge to be not maintainable and proceedings before the Civil Judge as wholly not maintainable, in view of the order passed by the Civil Judge on aspects, other than the maintainability, it ought to have set aside the impugned order before it and in view of own its finding that the petitioner should have approached for restoration of RA No.5 of 1969 by approaching the District Judge, Chitradurga, it ought to have passed suitable orders. . 11. The contention of the learned Counsel for the respondents that it was the petitioner who had approached the Court of Civil Judge with a time barred petition and the same having gone against him, it is not permissible to contend that the said Court had no jurisdiction, is devoid of merit. It is well settled that, by agreement, the parties cannot confer jurisdiction, where none exists, on a Court to which, Civil Procedure Code applies. It is well settled that, by agreement, the parties cannot confer jurisdiction, where none exists, on a Court to which, Civil Procedure Code applies. Merely because the petitioner had approached wrong forum, that cannot confer jurisdiction to decide the matter either on merit or on any other ground other than the ground of maintainability. If the Court has no jurisdiction to entertain the petition, it ,can only order the return of the petition for presentation before proper forum or dismiss the petition in limine on the ground of maintainability/want of jurisdiction. Any other order passed is coram non judice. The impugned orders are thus, illegal and cannot be upheld. 12. Having noticed the fact that RA No.5 of 1969 which was transferred to the MADR Court on account of coming into force MADR Act and the matter having not been decided by the MADR Court and during the pendency of the matter, since the Act was repealed in view of which, pending matter before the MADR Court has abated, the record of RA No.5 of 1969 should have been transferred by the office of the MADR Court to the Court of District Judge, Chitradurga, for disposal in accordance with law. Since the same was not done and there is a mistake on the part of the office of the MADR Court in not transferring the record, in the exercise of jurisdiction under Articles 226 and 227 of the Constitution of India, I deem’ it proper to mould the relief and direct that, the proceedings in R.A. No.5 of 1969 be restored to the file of the District Court, Chitradurga; for disposal in accordance with law. In the result, writ petition is allowed and the impugned orders are quashed. Writ of mandamus is issued directing the .District Court, Chitradurga, to restore to its file RA 5 of 1969 (Old No. RA 36 of 1967) and dispose of the same in accordance with law, expeditiously and no later than 20.12.2008. Contentions of both patties regarding the merit or otherwise of the appeal, is left open to be decided in the said appeal. No costs.