Ram Kishore Sharma v. Gopi Nath

1. These two connected appeals have been referred to a larger Bench by a learned single Judge because he found himself unable to agree with the decision of one of us in Civil Revn. No. 1135 of 1976 (Triloki Nath v. Sri Tula Ram decided on 21st December, 1976). In both these appeals identical question of law arises for consideration,

2. The material facts giving rise to these appeals arc that the plaintiff respondents after obtaining requisite sanction of the Advocate General of the State filed a suit under Section 92 of the Code of Civil Procedure -- hereinafter referred to as the Code--against the appellants in the court of the Dist Judge, Bareilly. The suit was transferred for decision to the Third Additional District Judge, Bareilly, who decided it ex parte on the 11th February, 1976. The appellants applied for setting aside of the ex parte decree but the application was dismissed. Against the dismissal of the application for the setting aside of the decree, the appellants have preferred First Appeal From Order No. 93 of 1977. In the suit certain issues were decided by the Additional District Judge as preliminary issues. The issues having been decided against the defendants, they have preferred First Appeal From Order No. 45 of 1976 challenging the findings on those issues.

3. When the appeals came up for hearing before a learned single Judge, it was urged before him that a suit under section 92 of the code could be instituted before and decided only by the District Judge who constituted the principal Civil Court of original jurisdiction and the Additional District Judge consequently acted without jurisdiction in passing the ex parte decree and deciding the preliminary issues. Learned counsel for the plaintiff-opposite parties appears to have countered the contention by placing reliance on the decision of this Court in Triloki Nath v. Sri Tula Ram, (Civil Revn. No. 1135 of 1976, D/- 21-12-1976) (supra). If the view taken in the above-mentioned decision is correct, the contention raised on behalf of the appellants must prevail.

4. In Triloki Nath's case it was observed that Section 92 required the institution of a suit under that provision in the principal Civil Court of original jurisdiction or in the alternative in any other Court empowered in that behalf by the State Government, It was held that,

"This reservation of the power of specifically empowering another Court would be set at naught if the District Judge transfers under Section 24, C. P. C. a case instituted in his Court under Section 92, C. P. C. The reservation in favour of the State Government to specifically empower another Court to receive suits under Section 92 does, in my opinion, imply a restriction on the power of transfer possessed by the District Judge under Section 24. C. P. C."

In support of the view, reliance was placed on the decisions of the Bombay High Court in Dhoribhai Dadabhai v. Pragdasji Bhagwandasji, (AIR 1935 Bom 172) and the Calcutta High Court in Muhammad Musa v. Abdul Hassan Khan, (AIR 1914 Cal 616).

5. According to Section 4(12) of the General Clauses Act, "District Judge" is "the Judge of the principal Civil Court of original jurisdiction." Section 8 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act XII of 1887) provides:--

Additional Judges -- (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 then, and in the discharge of those functions they shall exercise the same powers as the District Judge.

Under Section 24(1)(a) of the Code, the District Court is empowered at any stage to "transfer any suit, appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it and competent to try and dispose of the same." For the purposes of Section 24 by virtue of Sub-section (3) thereof, Courts of Additional District Judges are subordinate to the District Court. section 92 of the code merely requires the institution of a suit under that provision either before the District Judge or before any other Court empowered by the State Government to entertain such a suit. It does not concern itself with the further trial or disposal of the suit once it has been instituted before a proper Court. If the District Judge assigns under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act to an Additional District Judge appointed under Section 8(1) of that Act the work of trying cases under section 92 of the code, such Additional District Judge acquires competence to try and dispose of the same within the meaning of Section 24(1)(a) of the Code and in exercise of powers under that section the District Judge can validly [transfer such a suit for trial and disposal to him. The words "any suit, appeal or other proceeding" used in Section 24 are words of amplitude and have no limitations (3ee P.C. Gupta v. State, 1974 All LJ 418 : (1974 Cri LJ 945) (FB)). "The word any is a word which excludes limitation or qualification. It connotes wide generality. Its use points to distributive construction," (Vide Stroud's Judicial Dictionary). A Division Bench of the Patna High Court in Chandi Prasad v. Rameshwar Prasad Agarwal, (AIR 1967 Pat 41) observed that "it is no doubt true that the word 'any' may, in certain context, imply 'all'. The mere fact that section 92 of the code authorises the State Government to invest Courts other than the District Courts with power to entertain suits under that section does not, in our judgment, warrant the conclusion that there is an implied curtailment of the power of the District Court to transfer such suits instituted before it to Additional District Judges in exercise of powers under Section 24.

6. There is a considerable judicial opinion in accord with the view we are taking.

7. A Full Bench of five Judges of the Calcutta High Court in Rup Keshwar Lal v. Jaijaj Bibi, (AIR 1916 Cal 561) repelled the contention that under Section 51 of the Probate and Administration Act, 1881 tile District Judge alone had jurisdiction to grant Letters of Administration in all cases within his district and could not transfer proceedings instituted before him to an Additional District Judge. It was held that in exercise of powers under Section 8(2) of Act No. XII of 1887 it was open to the District Judge to assign to an Additional District Judge for disposal a petition for grant of Letters of Administration. It may be mentioned here that under Section 51 of the Probate and Administration Act it was provided that,

"The District Judge shall have jurisdiction in granting and revoking probates and letters of Administration in all cases within his district"

8. Kanhaiya Lal, J. C. held in Gauri Nath v. Ram Narain, (AIR 1919 Oudh, 311) that a District Judge has power to transfer a suit under Section 92 of the Coda to an Additional District Judge, provided the assignment of such suits had been sanctioned in the manner required by Section 7 of the Oudh Civil Courts Act. Section 7 of the Oudh Civil Courts Act, to which the learned Judicial Commissioner has referred in the above-mentioned ease is analogous in terms to section 8 of act No. XII of 1887.

A Division Bench of the Calcutta High Court in Ajit Kumar Bhunia v. Smt. Kanan Bala Devi, (AIR 1960 Cal 565) held that where an application under Section 13, Hindu Marriage Act, 1955, for dissolution of a marriage is duly filed before the District Judge as required by Section 19 read with Section 3(b) of the Act and the District Judge transferred it for disposal to the Additional District Judge under Section 8(2) of Act No. XII of 1887, the latter had jurisdiction in the matter and can dispose of the same.

10. Section 2 of the Religious Endowments Act, 1863, provides that.

The words, 'Civil Court' and 'Court' shall.........mean the principal Court of original civil jurisdiction in the district in which, or any other Court empowered in that behalf by the State Government within the local limits of the jurisdiction of which the mosque, temple or religious establishment is situate relating to which, or to the endowment whereof, any suit shall be instituted or application made under the provisions of this Act.

A learned single Judge of this Court has in Gangadin v. Kanhaiya Lal, (AIR 1972 All 355) held that an application under section 18 of the above-mentioned act could be made to the District Judge as provided in Section 2 of the Act and under Section 8(2) of Act No, XII of 1887 the District Judge could delegate his powers to an Additional District Judge to hear and dispose of such an application. Though in this judgment no reference has been made to Section 24 of the Code, the principle that an application which could be entertained only by the District Judge could be validly transferred to an Additional District Judge was applied.

11. The controversy that arose for consideration before a Full Bench of the Punjab High Court in Gangagir Chela v. Rasal Singh, (AIR 1965 Punj 472) was as to whether the Court of an Additional Dist. Judge to whom a case is transferred by the District Judge under Section 76 of the Patiala and East Punjab States Union Judicature Ordinance and Section 21 of the Punjab Courts Act. 1918 has jurisdiction to try a suit which according to section 92 of the code could be instituted only in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government. It was held by the Full Bench that a suit under section 92 of the code instituted in the Court of the District Judge became a part of the business pending before him and it could be validly assigned by him to the Additional District Judge under Section 21 (2) of the Punjab Courts Act, 1918 and upon such assignment the latter will be fully competent to dispose of the suit in the same manner as the District Judge. The language of the relevant provision of the Ordinance and the Punjab Courts Act, 1918 was very similar to that employed in section 8 of act No. XII of 1887 and the power of the District Judge to transfer suits and proceedings pending before him similar to that as in Section 24 of the Code. In the above-mentioned case the decision of the Calcutta High Court in Rup Keshwar Lal v. Jaijai Bibi (AIR 1916 Cal 561) (FB) (supra) and of Kanhaiya Lal, J. C. in Gauri Nath v. Ram Narain, (AIR 1919 Oudh 311) (supra) were cited and followed with approval.

12. A learned Judge of the Patna High Court in Bijan Kumar Bose v. Gouri Bose, (AIR 1975 Pat 131) has held that a petition for judicial separation under Section 23 of the Special Marriage Act, 1954 once properly filed in the Court of the Judicial Commissioner who is the principal Civil Court of original jurisdiction and as such the District Court within the meaning of Section 2(2) of the Act if transferred by him for disposal to the Additional Judicial Commissioner by virtue of section 8 of act No. XII of 1887, is triable by him. Reliance was placed by the learned Judge on the Full Bench decision of the Calcutta High Court in Rup Keshwar Lal's case (AIR 1916 Cal 561) (supra).

13. Having carefully considered the submissions made by the learned counsel for the parties and the decisions cited before us, we are of the opinion that Triloki Nath v. Tula Ram, (Civil Revn. No. 1135 of 1976, D/- 21-12-1976) (All) (supra) has not been correctly decided.

14. We consequently hold that the learned District Judge, Bareilly, was competent to transfer the suit instituted before him and giving rise to these appeals for decision to the Third Additional District Judge. Bareilly, who as a result of the transfer acquired jurisdiction to try and dispose of the same.

15. Our opinion shall be placed before the learned single Judge who has made this reference for deciding the other points raised in the appeals.