Mahomed Musa v. Abdul Hassan Khan

In this case the Local Government acting under sec. 8 of the Bengal and Assam Civil Courts Act, 1887, appointed Mr. James, Additional District Judge at Patna. On the 2nd February, 1914, Mr. Roe, the District Judge, transferred to him a suit under sec. 92 of the Code of Civil Procedure instituted before himself, which had proceeded as far as the settlement of issues. It is not disputed that this transfer was made under sec. 24 of the Civil Procedure Code. On Mr. James taking up the case it was argued before him that he had no jurisdiction to deal with it: but this was overruled. A Rule, however, has been granted in this Court calling on the Opposite Party to show cause why the order transferring the case to the file of the Additional Judge should not be set aside as being made without jurisdiction. The objection to Mr. Roe's order is as follows:—The effect of Mr. James', appointment was that he became capable of discharging any of the functions of a District Judge which the District Judge might assign to him, and of exercising the powers of a District Judge in discharging them: but the functions so assigned must be general and no such functions were assigned by Mr. Roe's order of transfer under sec. 24 of, the Code. This is a sound objection and a comparison of the language of the two enactments referred to, makes any other conclusion impossible. It is also consistent with the decision of this Court in Abdul Karim v. Abdus Sobhan. Had the Local Government empowered Mr. James to receive suits under sec. 92, the case might have been different, for it is not disputed that he would then have been the “principal Civil Court” under sec. 92, C.P.C, though he would be a subordinate Court under sec. 24. Had the District Judge assigned to Mr. James the function of a District Judge in respect of sec. 92, then also all might have been well. But as it is, Mr. James had no jurisdiction to deal with cases under sec. 92 at the time the order was made, and Mr. Roe effected nothing by his order of transfer.

This Rule is, therefore, made absolute, and the order of transfer is set aside. We make no order as to costs.

Rule made absolute.