Citation Codes

Equivalent Citations

citation codes

Case Number

17337 of 2006

Attorney(S)

Kunjal D.Pandya
K.H.Baxi
H.J.Nanavati

Judges

Mr. Justice Jayant Patel

Acts

Bombay Civil Court Act read with the provisions of Gujarat Civil Court Act, 2005. Part III of the Bombay Civil Court Act
provision of Sections 12 & 13 of the Bombay Civil Court Act as well as Section 4(3)(ii) of the Gujarat Civil Court Act
provisions of the Bombay Civil Court Act read with the provisions of Gujarat Civil Court Act,
Section 13 of the Bombay Civil Court Act read with Section 12 of the Bombay Civil Court Act,
provisions of Bombay Civil Court read with the provisions of Gujarat Civil Court Act,
Section 13 of the aforesaid provision shows of Regulations and Acts
Sub-section (1) of Section 4 of Gujarat Civil Court Act
Sub-section (2) of Section 4 of Gujarat Civil Court Act
provisions of Bombay Civil Court Act,
Gujarat Civil Court Act, 2005,
provisions of Section 4(3)(ii),
Section 2(4) of the BPT Act
Gujarat Civil Court Act,
Bombay Public Trust Act
Bombay Civil Court Act.
TRADE MARKS ACT 1999

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Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

One Gajendra Shukhlal Patel and 11 others filed Civil Misc. Application No. 120/04 in the Court of District Judge, Mehsana, challenging an order dated 27.02.2003 passed by the Joint Charity Commissioner under which a Scheme was framed in Scheme Application No. 9/94. The matter was initially instituted in the City Civil Court, which concluded it had no jurisdiction. Thereafter the applicants filed the matter before the District Judge, Mehsana. The learned District Judge assigned the matter to the Court of Additional District Judge and the Presiding Officer of Fast Track Court No. 2.

The petitioner submitted application Exh.89 contending inter alia that the power to conduct the matter vested only in the District Judge and that the Additional District Judge / Fast Track Court lacked jurisdiction; the Fast Track Court rejected that application by order dated 20.06.2006. The present petition challenges that rejection and was heard by the Court (the opinion records that Mr. Nanavati appeared for the petitioner and Mr. Baxi for respondent Nos. 16, 17, 24 and 26).

Legal Issues Presented

Whether the Fast Track Court, which is a Court of Additional District Judge, has power to entertain and decide an application under the Bombay Public Trusts Act (made to the Court of the Principal District Judge).

Arguments of the Parties

Petitioner's Arguments

The petitioner contended that the authority to conduct the matter vested exclusively in the District Judge and that the Court of Additional District Judge / Fast Track Court lacked jurisdiction to decide the application under Section 72 of the Bombay Public Trusts Act (BPT Act).
The petitioner relied on the decision in Dhirsinhbhai Karsanbhai Barad and Anr. v. Kanjibhai Parbarbhai Moti and Ors., arguing that a suit could not be transferred to the Fast Track Court and must be tried by the District Judge himself.
The petitioner also referred to Cadila Healthcare Ltd. v. Lupin Laboratories Ltd. and Anr., contending that decisions recognizing Fast Track Courts' powers (in that case under the Trade Marks Act, 1999) supported the petitioner's position before the lower court—though the exact application to Section 72 BPT Act was advanced as a point of contention before the lower court.

Respondents' Arguments

The opinion does not contain a detailed account of the respondents' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dhirsinhbhai Karsanbhai Barad and Anr. v. Kanjibhai Parbarbhai Moti and Ors.	Petitioner relied on the decision for the proposition that a suit cannot be transferred to the Fast Track Court and must be tried by the District Judge.	The Court observed that in that decision the statutory provisions of Sections 12 & 13 of the Bombay Civil Court Act and Section 4(3)(ii) of the Gujarat Civil Court Act were not brought to the attention of the Court. Consequently, that earlier decision was treated as per incuriam and held to be of no assistance to the petitioner in the present matter.
Cadila Healthcare Ltd. v. Lupin Laboratories Ltd. and Anr. (2006 (2) GLH 454)	Referenced for the view that Fast Track Courts have power to try suits under the Trade Marks Act, 1999, at par with the District Judge.	The Court noted the ultimate view in that decision aligns with the statutory provisions relied upon in this opinion but that the judgment contained no express reference to those statutory provisions. The Court concluded that the Cadila decision was not of help to the petitioner on the specific contention under Section 72 of the BPT Act.

Court's Reasoning and Analysis

The Court proceeded through the following analytical steps, based on the statutory text and the procedural posture of the case:

Identification of statutory source: The impugned application was made under Section 72 of the Bombay Public Trusts Act (BPT Act), which allows a person aggrieved by the decision of the Charity Commissioner to apply to "the Court" to set aside that decision. The BPT Act's definition of "Court" (Section 2(4)) distinguishes between "City Civil Court" in greater Bombay and "District Court" elsewhere.
Examination of the structure of civil courts: The Court referred to provisions establishing civil courts (the Bombay Civil Court Act as read with the Gujarat Civil Court Act, 2005) including the definition and functions of the District Judge and District Court (Sections 5, 6, 7 & 11 of the Bombay Civil Court Act).
Analysis of delegation and concurrent jurisdiction: Sections 12 and 13 of the Bombay Civil Court Act permit the appointment of Joint District Judges invested with co-extensive powers and concurrent jurisdiction with the District Judge; regulations and acts applying to a District Judge apply equally to a Joint Judge and the Joint Judge's seal is the same.
Effect of the Gujarat Civil Court Act, 2005: That Act (in force from 23 March 2005) classified judicial officers and, critically, Section 4(3)(ii) provides that an Additional District Judge, subject to orders of the High Court, may discharge all or any of the functions of a District Judge under any law and, in discharging those functions, shall exercise all powers of the court of a District Judge.
Application to Fast Track Courts and their presiding officers: The presiding officers of Fast Track Courts were formerly in the cadre of Joint District Judges and, after enactment of the Gujarat Civil Court Act, are in the cadre of Additional District Judges. By virtue of the statutory provisions cited, such officers are competent to exercise coextensive and concurrent jurisdiction with the District Judge when properly appointed and when functions are assigned to them.
Treatment of precedents relied upon by the petitioner: The Court observed that the Dhirsinhbhai decision did not consider the specific statutory provisions (Sections 12 & 13 of the Bombay Civil Court Act and Section 4(3)(ii) of the Gujarat Civil Court Act) and therefore was per incuriam; the Cadila decision, although ultimately consonant with the statutory position, did not expressly rely on those provisions and did not assist the petitioner on the particular contention under Section 72 of the BPT Act.
Conclusion as to jurisdiction: Because the Principal District Judge had assigned the matter to the Additional District Judge and the Presiding Officer of the Fast Track Court, and because the statutory provisions permit an Additional District Judge (and those exercising concurrent jurisdiction) to discharge functions and exercise powers of the District Judge when so assigned, the Fast Track Court/Additional District Judge had jurisdiction to entertain the application under Section 72 of the BPT Act. The Court noted that the Additional District Judge and Presiding Officer below had not specifically examined all statutory aspects but held that the assignment by the Principal District Judge made the exercise of jurisdiction proper.

Holding and Implications

PETITION DISMISSED.

Direct consequences (as stated in the opinion):

The petition was held to be meritless and dismissed.
Interim relief previously granted was vacated.
Notice stood discharged.
No order as to costs was made.

Broader implications articulated in the opinion (limited to the scope of the text):

The Court concluded that an Additional District Judge (including the Presiding Officer of a Fast Track Court) is competent to exercise all or any of the functions of a District Judge under any law, when such functions are assigned by the Principal District Judge, by virtue of Sections 12 & 13 of the Bombay Civil Court Act and Section 4(3)(ii) of the Gujarat Civil Court Act, 2005.
The earlier decision in Dhirsinhbhai (relied upon by the petitioner) was treated as per incuriam because it did not consider these statutory provisions and therefore does not assist the petitioner in this matter.

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Nareshchandra Ramprasad Raja President Of Samagra Gujarat v. Gajendra Shukhlal Patel

1. The short facts of the case relevant for the purpose of this petition is that it appears that one Gajendra Shukhlal Patel and 11 persons had filed Civil Misc. Application No. 120/04 in the Court of District Judge, Mehsana against the order dated 27.02.2003 passed by the Joint Charity Commissioner, whereby the Scheme was framed in Scheme Application No. 9/94. It may be recorded that initially, the matter was filed in the City Civil Court and thereafter, the Court came to the conclusion that it has no jurisdiction and thereafter, the another application was filed before the Court of District Judge at Mehasana. The learned District Judge assigned the matter to the Court of Additional district Judge and Presiding Officer of Fast Track Court No. 2 for conducting the said matter. In such proceedings, the petitioner herein submitted the application Ex.89 contending inter alia that the power for conducting the matter vest to the learned District Judge only and the Court of Additional District Judge and Fast Track Court(hereinafter 'the Fast Track Court') has no jurisdiction and therefore, the question of jurisdiction be decided first. It appears that the said application came to be rejected by the Fast Track Court vide order dated 20.06.2006 and it is under these circumstances, the present petition before this Court.

2. I have heard the learned advocate appearing for the petitioner Mr.Nanavati and Mr. Baxi for respondent Nos. 16, 17, 24 & 26.

3. The only question which may arise for consideration is whether the Fast Track Court which is a Court of Additional District Judge has power to entertain and decide the application under Bombay Public Trust Act made to the Court of Principal District Judge or not.

4. Certain provisions of law may have the relevance and they can be extracted as stated hereinafter.

5. It is an admitted position that the application was made under Section 72 of the Bombay Public Trust Act (hereinafter 'the BPT Act') to the Court. Section 72 of the Act provides that any person aggrieved by the decision of the Charity Commissioner may apply to the Court to set aside the said decision. Section 2(4) of the BPT Act provides for definition of the Court which reads as under:

Court means in greater Bombay, the City Civil Court and elsewhere, the District Court

6. The word District Court is not defined under the BPT Act. Civil Courts in Gujarat State are established under the Bombay Civil Court Act read with the provisions of Gujarat Civil Court Act, 2005. Part III of the Bombay Civil Court Act provides for District Court and Sections 5, 6, 7 & 11 of the said Act which is relevant for the purpose of this petition reads as under:

5. DISTRICT JUDGES.- There shall be in each district a District Court presided over by a District Judge.

6. SITUATION OF DISTRICT COURT.- The District Judge shall ordinarily holder the District Court at the sadr station in his district, but may, with the previous sanction of the High Court, hold it elsewhere within the district.

7. ORIGINAL JURISDICTION OF DISTRICT COURT.-The District Court shall b the principal Court of original civil jurisdiction in the district, within the meaning of the Code of Civil Procedure.

8. ...

9. ...

10. ...

11. SEAL OF DISTRCIT JUDGE.- The District Judge shall use a circular seal, two inches in diameter, which shall bear thereon the Ashoka Capital Motif with the following inscription in English and the principal language of the district:

District Court of

7. Part IV provides for Joint District Judges and Section 12, 12A and 13 of the said Act reads as under:

12. POWER TO APPOINT JOINT JUDGES.-The State Government may appoint in any District a Joint Judge who shall be invested with co-extensive powers and a concurrent jurisdiction with the District Judge, except that he shall not keep a file of civil suits and shall transact such civil business only as he may receive from the District Judge, or as may have been referred to the Joint Judge by order of the High Court.

12A.POWER TO APPOINT DISTRICT JUDGE OR ASSISTANT JUDGE IN ONE DISTRICT TO BE JOINT JUDGE IN ANOTHER DISTRCT.- The State Government may appoint the District Judge or the Assistant Judge in any district to be also a Joint Judge in another District. Such Joint Judge may hold his court and transact civil business at such place or places in either district as he may deem fit.

13. ENACTMENTS APPLIED TO JOINT JUDGE, JOINT JUDGE'S SEAL.- ALL Regulations and Acts now or hereafter in force and applying to a District Judge shall be deemed to apply also to the Joint Judge; and the seal of the Joint Jude shall be same as is used by the district Judge.

8. By virtue of aforesaid provisions of Bombay Civil Court Act, in any District, a Joint District Judge can be appointed who shall be invested with the co-extensive powers and concurrent jurisdiction of the District Judge. Section 13 of the aforesaid provision shows of Regulations and Acts now or hereinafter in force and applying to a District Judge shall be deemed to apply also to the Joint Judge and the seal of the Joint Judge shall be the same as is used by the District Judge.

9. It is an admitted position that prior to the enactment of Gujarat Civil Court Act,2005, the Presiding Officers of the Fast Track Court were in the cadre of Joint District Judges and therefore, by virtue of the provisions of Bombay Civil Court Act and more particularly, Sections 12 & 13, they have coextensive and concurrent jurisdiction with the District Judge and all Regulations and the Act as where in the year 1869 and thereafter, are to apply with the same force as at par with the District Judge. The BPT Act is an enactment in the year 1950 and in any case after 1869, the year of enactment of Bombay Civil Court Act. Therefore, in view of Section 13 of the Bombay Civil Court Act read with Section 12 of the Bombay Civil Court Act, all Courts of the Joint District Judge, if appointed for such purpose by the State Government, are competent to exercise coextensive and concurrent jurisdiction with the District Judge of the said district.

10. Gujarat Civil Court Act, 2005, has come into force on 23rd March, 2005, and in view of the enactment of Gujarat Civil Court Act, 2005, the Judicial Officers in the State cadre are classified into three cadres:

As that of the Court of District Judge.

As that of the Court of Senior civil Judge.

As that of the Court of Civil Judge.

11. Sub-section (1) of Section 4 of Gujarat Civil Court Act provides for establishing of the Court of District Judge. Sub-section (2) of Section 4 of Gujarat Civil Court Act provides that the Court of District Judge shall be presided over by a Judge to be called as Principle District Judge. Clause (ii) of Sub-section(3) which is relevant for the purpose of this petition reads as under:

(ii) The Additional District Judge appointed under this sub-section shall, subject to the general or special orders of the High Court, discharge all or any of the functions of a District Judge under this Act or any other law for the time being in force which the Principal District Judge may assign to him and in the discharge of those functions, he shall exercise all the powers of the court of a District Judge.

12. Therefore, in view of the aforesaid express provisions of Section 4(3)(ii), the additional District Judge are competent to discharge all or any of the functions of a District Judge under any other law for the time being in force and they are competent to exercise all powers of the Court of District Judge in a matter which is assigned to him.

13. The Presiding Officer of the Fast Track Court in the State who were earlier appointed as the Joint District Judge after enactment of Gujarat Civil Court Act, are in the cadre of Additional District Judge and on the said aspects, there is no dispute.

14. In view of the aforesaid express provisions of Bombay Civil Court read with the provisions of Gujarat Civil Court Act, the Court of Additional District Judge is competent to exercise all powers of the Court of District Judge.

15. The learned Counsel for the petitioner heavily relied upon the decision of this Court in the case of Dhirsinhbhai Karsanbhai Barad and Anr. v. Kanjibhai Parbarbhai Moti and Ors. and contended that the view taken by this Court in the aforesaid decision is that the Suit cannot be transferred to the Fast Track Court and must be tried by the District Judge himself.

16. The perusal of the said decision shows that the aforesaid statutory provision of sections 12 & 13 of the bombay civil court act as well as section 4(3)(ii) of the gujarat civil court act were not brought to the notice of the Court. It appears that since the attention of the Court was not drawn, the Court had no occasion to consider the aforesaid statutory provision and therefore, the view taken by this Court in the case of Dhirsinhbhai Karsanbhai Barad (supra) can be said as per incurrium. In view of the above, the said decision is of no help to the petitioner.

17. The learned Counsel for the petitioner also referred to the another decision of this Court in the case of Cadila Healthcare Ltd. v. Lupin Laboratories Ltd. and Anr. reported at 2006 (2) GLH 454 and submitted that as per the view taken by this Court in the said Judgement, the Fast Track Courts are held as having power to try the Suit under the Trade Marks Act, 1999, at par with the District Judge of the district.

18. It is true that the ultimate view taken in the said decision is in conformity with the aforesaid statutory provisions of the Bombay Civil Court Act read with the provisions of Gujarat Civil Court Act, but there is no express reference to the aforesaid statutory provision. It appears that in the said decision, Court considered the Scheme and manner of appointment of Presiding Officers of Fast Track Courts. Even otherwise also, the Judgement is not of any help to the petitioner since the petitioner contended before the Lower Court otherwise that the Court of the Additional District Judge and Fast Track Court has no power to try the application under section 72 of the bpt act.

19. It appears that the learned Additional District Judge and the Presiding Officer of the Fast Track Court while passing the impugned order below Exh.89 has not examined the aforesaid aspects and has proceeded on the general analogy. However, even if the contention of the petitioner is examined and considered, it appears that as per the above referred observations and statutory provisions, the Court of the Additional District Judge and Presiding Officer of the Fast Track Court are having power to discharge all or any of the functions of the District Judge under any other law for the time being in force, which the Principal District Judge may assign to him and they are competent to exercise all powers of the Court of District Judge in such matters. In the present case, as the Principal District Judge has assigned the matter to the Additional District Judge and the Presiding Officer of the Fast Track Court, it cannot be said that he has no jurisdiction or competence to entertain the matter. Hence, the application can be said as rightly rejected by the learned Additional District Judge and the Presiding Officer of the Fast Track Court.

20. In the result, the petition is meritless and therefore dismissed. Interim relief vacated. Notice discharged. No order as to costs.

Nareshchandra Ramprasad Raja President Of Samagra Gujarat v. Gajendra Shukhlal Patel

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Nareshchandra Ramprasad Raja President Of Samagra Gujarat v. Gajendra Shukhlal Patel

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