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Ranchhodlal Vallabhdas v. Mahendrakumar Ambalal

Bombay High Court

Feb 17, 1956

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Full Bench Opinion Summary — Jurisdiction under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947

Factual and Procedural Background

A question of jurisdiction under Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was referred to a Full Bench. The reference arose because Section 28 confers special jurisdiction on ordinary Courts (as constituted under the Civil Courts Act) and contains a provision, S.28(2)(a), empowering the District Court to withdraw suits pending in a Court of Small Causes and transfer them for trial or disposal to the Court of the Civil Judge, Senior Division.

The Full Bench was asked to resolve difficulties of interpretation flowing from S.28(2)(a), including whether the transfer effected under that provision is to the Civil Judge, Senior Division personally (i.e., a particular judge) or to the Court of the Civil Judge, Senior Division (i.e., the court as an institutional entity). The matter before the Full Bench arose after a Division Bench (Gajendragadkar J. and Gokhale J.) referred questions based on an instance in which the District Judge had transferred a suit to the Joint Senior Civil Judge, Ahmedabad.

Legal Issues Presented

Whether a transfer under S.28(2)(a) of the Rent Act is a transfer to the Civil Judge, Senior Division as an individual judge, or to the Court of the Civil Judge, Senior Division as an institutional Court.
Whether, after such a transfer, the Principal Judge of the Court of the Civil Judge, Senior Division may refer the transferred suit to any of his colleagues (including Joint Senior Civil Judges or Civil Judges, Junior Division) to try or dispose of the suit.
Whether the District Judge, apart from the power under S.28(2)(a) of the Rent Act, could transfer a suit from the Small Cause Court and direct that a Joint Senior Civil Judge or a Civil Judge, Junior Division try that suit — i.e., whether the District Judge’s powers under S.24, Civil P.C. remain operative and, if so, how they interact with S.28 of the Rent Act.
Whether S.28 of the Rent Act abrogates or affects the District Judge’s power under S.24, Civil P.C.

Arguments of the Parties

Argument advanced for transfer only to the Civil Judge, Senior Division (as an individual)

It was contended (referred to in the opinion and advanced by Mr. Shah and by a prior Division Bench decision in Naranbhai Shakarbhai v. Nandlal, Civil Reference No. 22 of 1954) that when the District Judge withdraws a suit under S.28(2)(a) and transfers it for trial, the transfer is to the Civil Judge, Senior Division personally and therefore it must be tried and disposed of by the Senior Civil Judge alone.
The prior Division Bench emphasized S.24 of the Bombay Civil Courts Act (dealing with pecuniary jurisdiction of Senior and Junior Civil Judges) and treated that as indicating that the Senior Civil Judge alone should try such transferred suits.

Counter-argument / Position adopted by the Full Bench

The Full Bench's examination emphasised the statutory language of S.28(2)(a) and the constitutional/structural scheme under the Civil Courts Act (Bombay Civil Courts Act, 1869): the transfer is to the Court of the Civil Judge, Senior Division (an institutional court), not to an individually named judge.
When special jurisdiction is conferred on an ordinary Court, that jurisdiction is to be exercised according to the ordinary procedure and administrative powers of that Court unless the special statute indicates otherwise; in this case S.28 contains no such special procedure.
Accordingly, on transfer the Principal Judge of that Court has the ordinary powers (under S.23, para 5 of the Bombay Civil Courts Act, 1869) to appoint or refer matters to Joint Civil Judges or deputed judges; therefore, a transferred suit may be referred to colleagues, including Joint Senior Civil Judges or Civil Judges, Junior Division.
Further, the District Judge retains powers under S.24, Civil P.C. to transfer suits to subordinate courts provided those courts are competent to try the suit; since Joint Senior Civil Judges and Civil Judges, Junior Division are competent under S.28, the District Judge may validly transfer cases to them under S.24, Civil P.C.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Naranbhai Shakarbhai v. Nandlal, Civil Reference No. 22 of 1954 (A)	Held (by that Division Bench) that a suit transferred under S.28(2)(a) must be tried and disposed of by the Senior Civil Judge (i.e., placed emphasis on S.24 of the Bombay Civil Courts Act and treated the Senior Civil Judge as the judge who must try the suit).	The Full Bench reviewed and disagreed with this earlier Division Bench conclusion, explaining that S.28(2)(a) transfers the suit to the Court of the Civil Judge, Senior Division and that the ordinary administrative provisions (e.g., S.23 para 5) permitting referral to other judges of that Court apply.

Court's Reasoning and Analysis

The Full Bench proceeded by careful statutory construction and an examination of the institutional framework governing ordinary Courts under the Bombay Civil Courts Act, 1869. The analysis followed these principal steps:

Identification of the statutory scheme: Section 28 of the Rent Act confers special jurisdiction on ordinary Courts constituted under the Civil Courts Act. S.28(1) enumerates the Courts to which special jurisdiction is given (e.g., Courts of Small Causes in Greater Bombay and, elsewhere, Courts of Civil Judges, Junior Division or Senior Division).
Focus on S.28(2)(a): That provision authorises the District Court to withdraw suits pending in a Court of Small Causes and "transfer the same for trial or disposal to the Court of the Civil Judge, Senior Division, having ordinary jurisdiction in such area." The Full Bench treated the textual form "to the Court of the Civil Judge, Senior Division" as significant.
Application of the general principle: When special jurisdiction is conferred on an ordinary Court, that jurisdiction is exercised according to the ordinary procedure and administrative rules of that Court unless the special statute provides otherwise. S.28 contains no direction that transfers must be tried by a specified individual judge or that the usual administrative practice be displaced.
Examination of the Civil Courts Act (Bombay Civil Courts Act, 1869), especially S.23 para 5: that provision contemplates that the High Court may appoint Joint Civil Judges or the District Judge may depute a Judge of another subordinate Court to assist; a Civil Judge so appointed "shall dispose of such Civil business within the limits of his pecuniary jurisdiction as may, subject to the control of the District Judge, be referred to him by the Judge of such Court." The Court reads this as supporting the institutional character of the Court and the internal power of the Principal Judge to allocate business among colleagues.
Synthesis: Because the transfer is to the Court of the Civil Judge, Senior Division (an institutional Court), the Principal Judge of that Court, by virtue of S.23 para 5 and the ordinary administrative arrangements, can refer the transferred suit to any colleague appointed to assist (including Joint Senior Civil Judges or Civil Judges, Junior Division), both being judges of the same Court.
Addressing the alternative view and S.24 Civil P.C.: The Full Bench held that S.28 of the Rent Act did not abrogate or affect the District Judge's power under S.24, Civil P.C. The District Judge therefore retains the power to transfer suits (including rent suits) to subordinate Courts competent to try them under S.28; consequently, when the District Judge transfers a suit to a Joint Senior Civil Judge or a Civil Judge, Junior Division, he validly exercises power under S.24, Civil P.C. read with S.28(2)(a).
Result applied to facts: In the referred case, the District Judge had transferred the suit to the Joint Senior Civil Judge, Ahmedabad; the Full Bench held that this transfer was a valid exercise of power under S.24, Civil P.C. read with S.28(2)(a).

Holding and Implications

Holding:

(a) A transfer under S.28(2)(a) of the Rent Act is a transfer to the Court of the Civil Judge, Senior Division (i.e., to the Court as an institutional entity), and not to any particular individual judge; (b) upon such transfer the Principal Judge of that Court has the power to refer the matter to any of his colleagues (including Joint Senior Civil Judges or Civil Judges, Junior Division) under the ordinary provisions governing the Court; and (c) the District Judge may validly transfer a suit pending in a Court of Small Causes to a Joint Senior Civil Judge or to a Civil Judge, Junior Division under his powers in S.24, Civil P.C., provided the transferee is competent to try the suit under S.28.

Implications:

The immediate practical effect on the parties in the referred matter is that the District Judge's transfer of the suit to the Joint Senior Civil Judge, Ahmedabad, was validly and properly made under S.24, Civil P.C. read with S.28(2)(a) of the Rent Act.
The Full Bench expressly disagreed with the earlier Division Bench decision in Naranbhai Shakarbhai v. Nandlal (Civil Ref. No.22 of 1954) to the extent that decision held that transferred suits must be tried only by the Senior Civil Judge personally; the Full Bench treated that view as placing undue emphasis on pecuniary jurisdiction provisions (S.24 of the Civil Courts Act) rather than on the institutional character of the Court and its ordinary administrative powers.
The decision clarifies the interaction between S.28 of the Rent Act and the ordinary administrative and transfer provisions of the Civil Courts Act and Civil P.C.: special jurisdiction conferred by statute is to be exercised in accordance with the ordinary rules and administrative powers of the relevant ordinary Court unless the special statute provides otherwise.
Where the opinion does not discuss other broader consequences beyond the specific points decided, the direct legal consequences are the allocation of authority described above with respect to transfers under S.28(2)(a) and the continuing operation of S.24, Civil P.C. for transfers to competent subordinate courts.

G.M.J

Answer accordingly.

Show all summary ...

Chagla, C.J:— A question relating to jurisdiction arising under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, has been referred to this Full Bench. The scheme of that Act has often been considered by this Court and it is clear that under S. 28 special jurisdiction to try suits arising under the Act was conferred upon ordinary Courts of the land which have been set up under the Civil Courts Act.

2. The Courts upon which special jurisdiction was conferred are enumerated in S. 28. Under S. 28(1)(a) in Greater Bombay the Court is the Court of Small Causes and under Cl. (aa) in any area for which a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court. Therefore, in the State of Bombay we have Courts of Small Causes in Poona and Ahmedabad and this provision would apply to those Courts.

3. Then under S. 28(1)(b) elsewhere the Court of the Civil Judge, Junior Division, having jurisdiction in the area in which the premises are situate or if there is no such Civil Judge, the Court of the Civil Judge Senior Division, having ordinary jurisdiction shall have jurisdiction to try suits arising under the Act. In most Taluka towns we have Courts presided over by the Civil Judge, Junior Division.

4. In those places those will be the Courts over which special jurisdiction has been conferred, and where we have Courts which are not presided over by a Civil Judge, Junior Division, then the Court designated is the Court presided over by Civil Judge, Senior Division, having ordinary jurisdiction. Then comes S. 28(2)(a) which has caused some difficulty which has necessitated this Full Bench:

“Notwithstanding anything contained in cl. (aa) of sub-S. (1), the District Court may at any stage withdraw any such suit, proceeding or application pending in a Court of Small Causes established for any area under the Provincial Small Cause Courts Act, 1887, and transfer the same for trial or disposal to the Court of the Civil Judge, Senior Division, having ordinary jurisdiction in such area”. Then cl. (b) provides:

“Where any suit, proceeding or application has been withdrawn under cl. (a) the Court of the Civil Judge Senior Division, which thereafter tries such suit, proceeding or application, as the case may be, may either re-try or proceed from the stage at which it was withdrawn.”

5. And clause (c) States:

“The Court of the Civil Judge trying any suit, proceeding or application withdrawn under cl. (a) from the Court of Small Causes shall, for purposes of such suit, proceeding or application, as the case maybe, be deemed to be the Court of Small Causes.”

6. Therefore the scheme of S. 28(2)(a) is very clear. Only in cases pending before the Court of Small Causes established under the Provincial Small Cause Courts Act, the District Court has been given the special power of withdrawing the suits pending in that Court & transferring them to another Court which is designated as a Court which would have the same special jurisdiction that the Small Cause Court has been given, and that Court is the Court of the Civil Judge, Senior Division.

7. What has been sought to be argued is that when the District Judge exercises his power under S. 28(2)(a) of withdrawing a suit and transferring the same for trial to the Court of the Civil Judge, Senior Division, he can only transfer it to the Civil Judge, Senior Division, and to no other Judge in advancing this argument the provisions of the Bombay Civil Courts Act, 1869, are ignored. Before we look at that Act a certain well established principle may be enunciated.

8. When the Legislature confers special jurisdiction upon an ordinary Court of the land, that jurisdiction has to be exercised by the ordinary Court according to the procedure of that Court unless in the legislation conferring special jurisdiction there is some provision to the contrary. All the ordinary administrative and other powers of the Court are to be exercised as laid down in the law setting up that Court.

9. All that the special legislation does is to confer special jurisdiction upon the Court. In other words, the Court, over and above the ordinary jurisdiction that it exercises, also exercises a certain special jurisdiction, but unless we find some indication in the law creating the special jurisdiction that special jurisdiction has to be exercised in a special manner or that the Court has to function in a particular manner, the Court must function in the ordinary way and according to the ordinary law of the land.

10. In S. 28 there is no indication whatever that the Court of the Civil Judge, Senior Division, to which suits have to be transferred under S. 28(2)(a), has to function in any different manner than it would function as the ordinary Court, or that the procedure which has got to be followed has to be any different procedure. Therefore, we must now turn to the Civil Courts Act to find out what are the powers and the functions and the procedure of the Court of the Civil Judge, Senior Division.

11. The underlying scheme of the Bombay Civil Court Act, 1869, is that it sets up District Courts and it also sets up in each district so many Civil Courts subordinate to the District Court as the State Government shall from tune to time direct. Therefore ordinarily in each place, whether it is a taluka place or a district town, there is one Court other than the District Court and to that Court one or more Judges may be appointed. Section 23, para 5, provides:

“For the purpose of assisting the Judge of any subordinate Court in the disposal of the civil business on his file, the High Court may appoint to such Court from the members of the Subordinate Civil Judicial Service of the Province one or more Joint Civil Judges, or the District Judge may, with the previous sanction of the High Court, depute to such Court the Judge of another Subordinate Court within the district.

A Civil Judge thus appointed or deputed to assist in the Court of another Civil Judge shall dispose of such Civil business within the limits of his pecuniary jurisdiction as may, subject to the control of the District Judge, be referred to him by the Judge of such Court.”

12. Therefore, the Principal Judge, if one might so designate the Judge of the Court, in each place may have other Judges appointed to assist him in disposing of the work and it is left to the Principal Judge to refer cases for disposal to one or more of his colleagues. But the Court is one and the Court may consist, as we have already pointed out, of one Principal Judge or one Principal Judge and one or more Judges to assist him.

13. Then S. 24 deals with the classes of Judges and they are Civil Judge, Senior Division and Civil Judge, Junior Division, and it lays down what the jurisdiction of these Judges is; and S. 25 deals with the special jurisdiction of the Civil Judge, Senior Division. It is in the light of these provisions that we must now again turn to S. 28(2)(a) of the Rent Act.

14. It will be immediately noticed that the Legislature did not intend that when a suit was transferred from the Small Cause Court of the Civil Judge, Senior Division, that it should be tried by any particular Judge of that Court. No Judge is designated as the Judge who alone should try a suit transferred under the circumstances mentioned in S. 28(2)(a).

15. All that the Legislature was concerned with was that instead of the ordinary Court, viz., the Small Cause Court, having special jurisdiction in certain circumstances, another ordinary Court of the land, viz., the Court of the Civil Judge, Senior Division, should have jurisdiction. Therefore it is entirely fallacious to suggest that: the transfer under S. 28(2)(a) is to the Civil Judge, Senior Division.

16. The transfer is not to the Civil Judge, Senior Division, but the transfer is to the Court of the Civil Judge, Senior Division. This is not matter of interpretation; it is the very language used by the statute. Therefore, if the transfer is to the Court of the Civil Judge, Senior Division, the provisions to which reference has just been made in S. 23, para 5, must apply.

17. Once the Court is seized of the matter transferred to it by the District Court under S. 28(2)(a), the Principal Judge of that Court is vested with the power conferred upon him under S. 23, para 5. Therefore in our opinion, on the transfer of a rent suit from the Small Cause Court by the District Court under S. 28(2)(a) to the Court of the Civil Judge, Senior Division, the Principal Judge of that Court has the power to refer that case to any one of his colleagues who has been appointed to assist him in the disposal of the cases on his file.

18. The colleague may be a joint Civil Judge, Senior Division, or he may be a Civil Judge Junior Division, because not only the Joint Civil Judge Senior Division, but also the Civil Judges, Junior Division, are Judges of one and the same Court, the Court presided over by the Civil Judge, Senior Division.

19. Any other construction would lead to this rather curious result that whereas the Legislature trusted Courts of Civil Judges, Junior Division in taluka places to try rent suits, they insisted on only the senior most Civil Judge trying similar suits in district places like Ahmedabad and Poona. No logical reason has been suggested by Mr. Shah why the Legislature should have intended to make this distinction.

20. All that he could contend was that it may be a lacuna in the legislation; and that we must give effect to legislation as we find it. Before we can come to the conclusion that there is a lacuna in any law passed by the Legislature, our attempt must be to give such a construction to a law passed by the Legislature as would avoid any such lacuna and avoid any such anomalies, and in our opinion the clear language of S. 28(2)(a) leaves no doubt that is the only construction possible.

21. A contrary view has been taken by a Division Bench of this Court in — ‘Naranbhai Shakarbhai v. Nandlal’ Civil Ref. No. 22 of 1954 (A), decided by Mr. J. Chainani and Mr. Justice Gokhale. With great respect to the learned Judges, they have attached more importance to S. 24, Bombay Civil Courts Act, which merely deals with the pecuniary jurisdiction of the Senior and Junior Civil Judges than to the fact that the Court set up under that Act is one Court consisting of one or more Judges.

22. The learned Judges have also emphasised the fact that under S. 28(2)(a) the transfer of the suit is for trial and disposal and that the suit having been transferred it must be tried and disposed of only by the Senior Civil Judge and could not be referred to any other Judge for trial or disposal.

23. Again, with respect, this would be the correct view if a particular Judge was designated by the Legislature as the Judge who should try or dispose of the suit. But if it is not a Judge of a Court which is designated, then it is the Court which is trying or disposing of the suit, whether it is tried and disposed of by one Judge or another Judge of the same Court.

24. There is one other question which also arises on this reference and that is whether apart from the power of the principal Judge of the Civil Court to refer cases to his colleagues under S. 23, para 5, the District Judge himself could transfer a suit from the Small Cause Court and direct a joint Senior Civil Judge or a Junior Civil Judge to try that suit, & the determination of that question depends upon whether S. 28 of the Rent Act has in any way abrogated the provisions of S. 24, Civil P.C

25. In our opinion, S. 28 of the Rent Act does not affect the right of the District Judge under S. 24, Civil P.C in the slightest degree. If a rent suit is pending in the Small Cause Court, then under S. 24, Civil P.C the District Court has the power to transfer it to a Court subordinate to the District Judge provided that Court is competent to try the suit.

26. Therefore, the District Judge could only exercise his power under S. 24, Civil P.C of transferring rent suits provided he transfers those suits to those ordinary Courts upon which special jurisdiction has been conferred by S. 28 of the Rent Act, and therefore if the District Judge withdraws the suit from the Small Cause Court and transfers it to a Joint Senior Civil Judge or to a Junior Civil Judge, he is validly and properly exercising his power under S. 24, Civil P.C because both the Joint Senior Civil Judge and the Junior Judge have jurisdiction to try the rent suit under S. 28.

27. In this particular case which has been referred to us by the Division Bench consisting of Mr. Justice Gajendragadkar and Mr. Justice Gokhale, as a matter of fact the learned District Judge transferred the suit to the Joint Senior Civil Judge, Ahmedabad. In our opinion, he exercised his power under S. 24, Civil P.C read with S. 28(2)(a) of the Rent Act.

28. Therefore, the answer to the first part of the question submitted to us will be in the affirmative and to the second part in the negative. We will frame a further question, viz., “Whether the District Court has the power to transfer a suit pending in a Court of Small Causes to a Joint Senior Civil Judge or to a Civil Judge, Junior Division, under S. 24, Civil P.C?” and answer that question in the affirmative.