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2014 DIGILAW 168 (ALL)

MAHADEO PRASAD v. SANT RAM SAHU

2014-01-15

ANIL KUMAR

body2014
JUDGMENT Hon’ble Anil Kumar, J.—Matter is taken in the revised list. 2. None appeared on behalf of the respondents. 3. Heard Shri Manish Rastogi, holding brief of Shri Q. M. Haq, learned counsel for the petitioner and perused the record. 4. Facts in brief of the present case are that as submitted by learned counsel for the applicant/petitioner that the controvery involved in the present case relates to property/house situated at Mohalla Pahalwara, Moti Sagar Ward, Qasba, Pargana, Tehsil and District-Balrampur. 5. In respect of the said property, respondent No. 1/Sri Sant Ram Sahu filed a suit for cancellation of gift deed and two sales deeds registered as Regular Suit No. 171 of 1989 (Sant Ram Sahu v. Badri Prasad (now deceased substituted by his legal representatives) and others, before the Court of Civil Judge (Senior Division), Gonda. 6. In the said matter, on behalf of the applicant/petitioner had filed a written statement. 7. Learned counsel for the applicant/petitioner submits that when the suit was filed in the year 1989, the property situated at area of Qasba Balrampur was included in the territory of District-Gonda. However, a new District as District-Balrampur was created, the property in question was included in the jurisdiction of District-Balrampur. 8. Now by means of the present petition/application, the applicant/petitioner has sought for transferring the Regular Suit No. 171 of 1989 pending in the Court of Ist Additional Civil Judge (S.D.), Gonda to the Court of Civil Judge (S.D.), Balrampur. 9. I have heard learned counsel for parties and gone through the records. 10. To decide the question, it may be necessary to advert to the legislative history of Section 24 of the Code. The first Code of Civil Procedure was Act 8 of 1859. The next Code of Civil Procedure was Act 10 of 1877 which repealed that of 1859. That was amended by Acts of 1878 and Act 12 of 1879. It was then superseded by the Code of Civil Procedure 1882 (Act 14 of 1882). That was amended from time to time between 1882 and 1895 and then superseded by the present Code. 11. That was amended by Acts of 1878 and Act 12 of 1879. It was then superseded by the Code of Civil Procedure 1882 (Act 14 of 1882). That was amended from time to time between 1882 and 1895 and then superseded by the present Code. 11. Under Section 25 of Act 14 of 1882, the predecessor of Section 24 of the Code, the High Court and the District Court had been given power to transfer a suit pending in a subordinate Court to any other subordinate Court : “competent to try the same in respect of its nature and the amount or value of the subject-matter.” 12. It would be clear from the language of the relevant part of Section 25 of Act 14 of 1882 extracted above, that the condition required to be satisfied for transfer of a suit pending in a subordinate Court to any other subordinate Court was that the transferee Court should have pecuniary jurisdiction to try the suit. 13. In Section 24 of the Code of Civil Procedure 1908 (hereinafter referred to as C.P.C., the words “competent to try or dispose of the same.” 14. In Black’s Law Dictionary with Pro-nounciations, Fifth Edition, the expression “Competent Court” has been defined as “A Court either Civil or Criminal having lawful jurisdiction.” 15. The word “jurisdiction” as is understood in legal parlance is a term of large and comprehensive import and would embrace every kind of judicial action. Broadly stated, it is the legal right, power or authority by which the Courts and Judges take cognizance of and decide cases. It means the extent of authority of a Court to administer justice not only with reference to the subject-matter of the suit, but also to the territorial and pecuniary limits of its jurisdiction. 16. The expression “competent to try or dispose of the same” appearing in Section 24(1)(b)(ii) CPC has reference to the jurisdiction of a Court within the meaning of the word just referred to. 17. As early as 1920, the question regarding the meaning of the word “competent” appearing in Section 24(1)(b)(ii) came up for consideration before the Patna High Court in Jannat Husain v. Gulam Kutubuddin Ahmad, AIR 1920 Pat 29. The learned Chief Justice (the Hon’ble Mr. Justice Dawson Miller) formulated the question for determination as under : “What is the meaning of the word “competent” in the section just referred to”? The learned Chief Justice (the Hon’ble Mr. Justice Dawson Miller) formulated the question for determination as under : “What is the meaning of the word “competent” in the section just referred to”? Answered the question as under : “In my opinion, the Court is not competent to try the suit unless it has jurisdiction to do so. The jurisdiction of a Court depends not merely upon the nature or subject-matter of the suit but also, in the case of most subordinate Courts, upon the pecuniary value of the suit, and in the case of all upon the local limits of their jurisdiction.” It has been further held that : “...The Courts to which the District Judge may transfer a case for trial under Section 24, Civil P.C., must be Courts competent to try the same, that is, Courts having jurisdiction to do so, and the mere fact that the District Judge transferred a case for trial from one Court subordinate to his jurisdiction to another similar Court does not confer jurisdiction upon the Court to which the case is transferred, unless it were competent originally to try the suit. I can find nothing either in the Civil Procedure Code or in Act 12 of 1887 which confers any such powers upon the District Judge.....” 18. Under Section 25, Act 14 of 1882, the High Court and the District Court were given power to transfer a suit pending in a subordinate Court to any other subordinate Court “competent to try the same in respect of its nature and the amount or value of its subject-matter. 19. These words have been slightly altered, and in their place we now have in Section 24 the words “competent to try or dispose of the same.” Under the old section there could be no doubt that all that was required of the subordinate Court to which the case was to be transferred was that it should have pecuniary jurisdiction to try the suit. The deletion of those words from the new section may prima facie suggest that the competence of the Court now required may be either pecuniary or territorial. If the words were to be taken literally, it might be open to argument that the word “competency” includes both pecuniary and territorial jurisdiction. The deletion of those words from the new section may prima facie suggest that the competence of the Court now required may be either pecuniary or territorial. If the words were to be taken literally, it might be open to argument that the word “competency” includes both pecuniary and territorial jurisdiction. Although the change in the words in the section was not emphasized, this view was certainly expressed by Patna High Court in the case of Jannat Hussain v. Ghulam Kutubuddin Ahmad, AIR 1920 Pat 29 and it has been held that the word “competent” was very wide and included both kinds of jurisdiction. 20. Further, the intention of the Legislature in incorporating the words “and competent to try or dispose of the same” is that the Court to which the suit, appeal or other proceeding could be transferred under Section 24(1)(b)(ii) of the Code must be competent to try or dispose of the case, in the sense that in addition to pecuniary jurisdiction, it should have territorial jurisdiction is amply made clear by omission of the words “competent to try the same in respect of its nature and amount or value of its subject-matter” that appeared in Section 25 (Act 14 of 1882) and insertion of the words “and competent to try or dispose of the same”. If the intention of the Legislature was that the transfer can be made to a subordinate Court having pecuniary jurisdiction to try the suit, the Legislature would have retained the words that appeared in Section 25 (Act 14 of 1882) without inserting the words “and competent to try or dispose of the same.” Non-retention of the words coupled with insertion of new words, adverted to earlier, in Section 24 would prima facie suggest that the competence of the Court now required has to be both pecuniary and territorial jurisdiction. That would be the meaning of the expression “and competent to try and dispose of the same” appearing in Section 24(1)(b)(ii) of the Code if the literal construction is to be placed. 21. As the jurisdiction of a Court depends not merely upon the nature or subject-matter of the suit, but also upon the pecuniary value of the suit and the local limits of its jurisdiction. 21. As the jurisdiction of a Court depends not merely upon the nature or subject-matter of the suit, but also upon the pecuniary value of the suit and the local limits of its jurisdiction. The expression “jurisdiction” refers to the authority of a Court to dispense justice not only with reference to the subject-matter of the suit but also to the territorial and pecuniary limits of its jurisdiction. If the expression “competent to try or dispose of the case” appearing in Section 24(1)(b)(ii) of the Code is to be understood, adopting the rule of literal construction the golden rule for the interpretation, it would be clear that the general power of High Court or District Court under Section 24 to withdraw any suit, appeal or other proceeding in any Court subordinate to it and transfer the same for trial or disposal to any Court subordinate to it can be exercised by transferring a suit, appeal or other proceeding only to a Court subordinate to it and competent to try or dispose of the same, that is having jurisdiction - having authority to try or dispose of the suit, appeal or other proceeding with reference to subject-matter of the suit, and territorial and pecuniary limits of its jurisdiction. 22. Indeed, Section 24 confers a very wide power on High Court and District Court and this conferment is intended to enable the two superior Courts in their general power of superintendence over subordinate Courts or in the interest of justice to redistributing of civil work of whatever nature pending in subordinate Courts for the purpose of disposal. The power can be used where the interests of justice require that a particular cause should not be tried in a particular subordinate Court and should be transferred from that Court and the word “competent” appearing in Section 24(1)(b)(ii) is to be interpreted as both including pecuniary and territorial jurisdiction, it may not nullify the power and render the section useless. 23. If the High Court or the District Court were to find that any suit, appeal or other proceeding pending in any Court subordinate to it should be transferred and if it cannot be transferred for trial or disposal to any Court subordinate to it for want of competence to try or dispose of the same, it can try or dispose of the same itself under Section 24(1)(b)(i) of the Code. In this regard, it is also necessary to go through the process of Section 15 CPC provides as under : “Every suit shall be instituted in the Court of the lowest grade competent to try it.” 24. Section 15 is enacted not merely to avoid overcrowding in the higher Court but also for the convenience for the parties and witnesses who may be examined by them. The object of the section in requiring a suitor to bring his suit in the Court of lowest grade competent to try it, is that Courts of higher grades shall not be overcrowded with suits. This section is a rule of procedure, not of jurisdiction, and hilst it lays down that a suit shall be instituted in the Court of the lowest grade, it does not oust the jurisdiction of the Courts of higher grades which they possess uner the Acts constituting them. 25. In Mulla on the Code of Civil Procedure, 18th Edition, at page 336, dealing with the meaning of the word “competent” appearing in Section 15, the learned Author has observed : “Jurisdiction—The word “competent” used in this section has reference to the jurisdiction of a Court. Jurisdiction means the extent of the authority of a Court to administer justice not only with reference to the subject-matter of the suit but also to the local and pecuniary limits of its jurisdiction. Thus, a Presidency Small Cause Court has no jurisdiction to try suits in which the amount or value of the subject-matter exceeds the prescribed monetary value; this is said to be the jurisdiction of a Court as regards its pecuniary limits. Nor can it try suits for specific performance of contracts or for an injunction or for a dissolution of partnership; this is said to be the jurisdiction of a Court as regards the subject-matter of a suit. Nor can it try a suit on a cause of action that has arisen beyond the local limits of the original civil jurisdiction of the High Court; this is said to be the local limits of its jurisdiction.” 26. Further, Section 11 deals with the doctrine of res judicata, that is a matter adjudicated upon or a matter in which judgment has been pronounced. It bars the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. Further, Section 11 deals with the doctrine of res judicata, that is a matter adjudicated upon or a matter in which judgment has been pronounced. It bars the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. In order that a decision in a former suit may operate as res judicata in a subsequent suit, it is necessary that the Court which tried the former suit must have been a Court competent to try the subsequent suit. The doctrine as embodied in Section 11 of the Code does not render the interpretation of the word “competent” in Section 24(1)(b)(ii) as including both pecuniary and territorial jurisdiction, in any way unsound. 27. Thus, taking into consideration the words competent to try suit which occur in Section 11 and Section 15 CPC, it is also take into note that Section 21 CPC provides that no objection as to the place of suing shall be allowed, unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice. 28. In nut shell, it can be said that the High Court or the District Court, in exercise of the power and jurisdiction under Section 24 of the Code, may either on the application of the parties or ex debito justitiae, transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same and it can withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and try or dispose of the same or transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, and, following have been held to be sufficient grounds for transfer : (i) con-venience of parties and situation of property, (ii) bias of Judge hearing the case, (iii) two suits involving common question, (iv) avoidance of delay and unnecessary expenses, and (v) preventing abuse of process of the Court. 29. 29. Further, in the present matter, from the material on record, it is clearly established that the property in question is situated at District-Balrampur, so keeping in view said facts as well as the provisions of sub-section 5 of Section 24 C.P.C. quoted herein below : “A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.” The Court at Gonda where the suit is pending is not competent to trial the same. 29. For the foregoing reasons, the transfer petition is allowed and the suit bearing Regular Suit No. 171 of 1989 pending in the Court of Ist Additional Civil Judge (S.D.), Gonda is transferred to the Court of Civil Judge (S.D.), Balrampur.