Tirlok Nath v. Moti Ram And Others

Judgement

HARNAM SINGN, J. - To appreciate the point of law arising in these proceedings the facts of the case must be set out in some detail.

2. Trilok Nath son of Chaudhari Bali Ram, caste Datta, of Kanjrur Dattan; Tehsil Shakargarh (now in Pakistan) instituted the suit out of which these proceedings have arisen in the Court of the Senior Subordinate Judge at Gurdaspur on 30th July 1943 The suit was for possession of 1775 kanals 12 marlas of land. The defendants put in their written statements in the Court of the Senior Subordinate Judge at Gurdaspur and when a part of the evidence bad been recorded in that Court the case was transferred to the Court of a Subordinate Judge 1st class at Gurdaspur and then to the Court of the Subordinate Judge at Shakargarh. The suit was re-transferred to the Court of the Senior Subordinate Judge at Gurdaspur on 10th October 1945 and it is common ground that on 15th August 1947 when the Punjab Province was divided into the Provinces of the East Punjab and the West Punjab the suit out of which these proceedings have arisen was pending in the Court of the Senior Subordinate Judge at Gurdaspur.

3. After 15th August 1947, the suit was continued in the Court of the Senior Subordinate Judge at Gurdaspur till it was finally disposed of on 2nd June 1948.

4. The plaintiff has come to this Court under S.96, Civil Procedure Code, 1908, from the decree passed by the trial Court on 2nd June 1948 dismissing the suit. The appeal was filed on 15th September 1948 and was admitted by a Division Bench of this Court consisting of Khosla and Teja, Singh, JJ., on 8th November 1948.

5. Trilok Nath son of Chaudhari Jaswant Rai respondent has applied to this Court objecting to the jurisdiction of this Court to deal with the appeal. The objection proceeds upon the ground that the land in suit being situate in Shakargarh Tehsil, which is now a part of Pakistan, the High Court of the East Punjab has no jurisdiction to entertain the appeal under Art.5 of the High Courts (Punjab) Order, 1947. Article 5 reads:

"The High Court of East Punjab shall be a Court of record, and shall have, in respect of the territories for the time being included in the Province of East Punjab and the Province of Delhi, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court at Lahore."

6. Now, Art.5 defines the jurisdiction of the High Court of East Punjab and Paras.(2) and (3) of Art.13 enumerate cases pending in the High Court at Lahore on 15th August 1947 wherein that Court retains jurisdiction notwithstanding the provisions of Art.5. With respect to proceedings pending immediately before 15th August 1947 in any Civil or Criminal Court (other than a High Court) in the Province of Bengal, the Punjab or Assam provision is made in Art.4, Indian Independence (Legal Proceedings) Order, 1947. Article 4 enacts:

"Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947:

(1) all proceedings pending immediately before the appointed day in any Civil or Criminal Court (other than a High Court) in the Province of Bengal, the Punjab or Assam shall be continued in that Court as if the said Act had not been passed, and that Court shall continue to have for the purposes of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day;

(2) any appeal or application for revision in respect of any proceedings so pending in any such Court shall lie in the Court which would have appellate, or as the case may be, revisional jurisdiction over that Court if the proceedings were instituted in that Court after the appointed day; and

(3) effect shall be given within the territories of either of the two Dominions to any judgment, decree, order or sentence of any such Court in the said proceedings, as if it had been passed by a Court of competent jurisdiction within that Dominion."

7. As stated above, the suit out of which these proceedings have arisen was pending in the Court of the Senior Subordinate Judge, Gurdaspur, on 15th August 1947 and that being so, the trial continued in that Court on the partition of the Punjab Province. The suit was dismissed on 2nd June 1948 and on 15th September 1948 an appeal from the decree passed by the trial Court was files in this Court. Clearly, under Art.4 (2) an appeal from the decree passed by the Senior Subordinate Judge at Gurdaspur lay in the High Court of the East Punjab and not at Lahore.

8. For the foregoing reasons, we find that there is no force in the contention raised that the High Court of the East Punjab has no jurisdiction to deal with this appeal.

9. Trilok Nath petitioner next urges that on his migration from Shakargarh to the East Punjab Province he has been reduced to poverty and being destitute he is unable to pay a sum of Rs.750 required for the inclusion of documents in the paper book at his instance. Mr. Hem Raj Mahajan who appears in these proceedings for Trilok Nath son of Bali Ram supports the respondent petitioner and also urges that the printing of the record in Regular First Appeal No.111 of 1948 may be dispensed with and we are satisfied that the parties are unable to pay the printing charges.

10. That being so, we direct that the record may not be printed and that on receipt of the records from the trial Court the appeal may be set down for hearing as early as possible.

Petition allowed.