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Hem Singh Vs. Mahant Basant Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1936)38BOMLR479
AppellantHem Singh
RespondentMahant Basant Das
Excerpt:
.....board on the grounds that the tribunal was exercising a special jurisdiction, that the right of appeal to the high court conferred by section 34 of the act gave to the high court a special jurisdiction, and that the decrees of the high court, not being made in the course of its ordinary jurisdiction, the provisions of sections 109 and 110 of the civil procedure code did not apply to confer a further right of appeal on any party :-;(1) that section 12(9) of the sikh gurdwaras act gives the tribunal the same powers as are vested in a court by the code of civil procedure, and under section 12(11) its proceedings are subject to the provisions of the act to be conducted in accordance with the provisions of. the code; and that the formal expression of its decision is described by the act as..........decision is described by the act as a decree or order. the matters which may be brought before the tribunal for decision include not only the question whether an institution is a sikh gurdwara within the meaning of section 16, but include also questions of the amount of compensation to be given to office holders of gurdwaras on their being superseded in office by the statutory authorities, and the decision of claims made to property which has been included in a list or lists as property belonging to a sikh gurdwara. the provision that appeals from the tribunal are to be heard by a division court and not by a single judge does not in their lordships' opinion indicate that the high court in dealing with such matters would be exercising a special jurisdiction; nor should any such inference.....
Judgment:

George Rankin, J.

1. These three appeals concern a religious institution in Manak in the Lahore district, and the buildings, lands and other property belonging thereto. The first appeal, No. 10, is brought by the plaintiffs in a suit under Section 92 of the Civil Procedure Code to remove the defendant Basant Das from the office of mahant or custodian of the institution upon the grounds of misconduct and mismanagement. The learned Subordinate Judge found for the plaintiffs and made an order removing Basant Das and appointing another custodian. The High Court at Lahore set aside this decree and dismissed the suit. No question or difficulty arises as to the competence of this appeal, but the defendant, Basant Das, having died since the High Court's decree, the appeal has not been pressed.

2. Appeals Nos. 108 and 109 are brought from two decrees of the High Court reversing the decision of a tribunal appointed under the Sikh Gurdwaras Act, 1925, (Punjab Act VIII of 1925). The tribunal had enquired under Section 16 of the Act whether the institution in suit should or should not be declared to be a Sikh Gurdwara and by a majority had decided in the affirmative. Two appeals were brought from this decision to the High Court by different sets of persons interested in preventing the institution from being dealt with as a Sikh Gurdwara under the Act. The High Court by two decrees dated January 13, 1931, allowed these appeals, set aside the majority decision of the tribunal, and made a declaration that the institution in suit is not a Sikh Gurdwara within the meaning of the Sikh Gurdwaras Act.

3. Upon application made to the High Court for a certificate that the cases were fit to be taken on appeal to His Majesty in Council, the learned Judges of the High Court delivered judgments by which they appear to have held that Section 110 of the Code did not apply to the cases but that a -certificate could be given under what they described as the latter portion of Clause 29 of the Letters Patent of the Lahore High Court, referring .apparently to the words 'or from any other final judgment, decree or order made either on appeal or otherwise as aforesaid when the said High Court declares that the case is a fit one for appeal to us &c.;' They followed up this judgment, however, by signing a certificate in which it was certified ' that the case above set forth fulfils in our opinion the requirements of Section 110 of the Code of Civil Procedure, Act V of 1908, as regards value and nature and .is fit for appeal to His Majesty in Council.' From these proceedings their Lordships have some difficulty in ascertaining the exact provision of law under which the learned Judges intended to act. It would appear, however, that whether or not they were satisfied that the amount or value of the subject-matter exceeded Rs. 10,000, they were of opinion that the case was otherwise a fit and proper case to be taken on appeal to His Majesty.

4. Before the Board a preliminary objection was taken by learned counsel for the respondents to the competence of these two appeals. While not disputing the proposition laid down by more than one of the learned Judges who took part in the decision of National Telephone Company, Limited V. Postmaster-General [1913] A. C. 546, that ' When a question is stated to be referred to an established Court without more, it... imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches ' (per Viscount Haldane L. C. p. 552), learned counsel contended that an examination of the Sikh Gurdwaras Act discloses that the present case is not within this general principle. He submitted that it is governed by Rangoon Botatoung Company v. The Collector, Rangoon (1912) L.R. 39 I. A. 197 : 14 Bom. L.R. 833, and that the principle to be applied to it is that the tribunal were exercising a special jurisdiction; that the right of appeal to the High Court conferred by Section 34 of the Act gave to the High Court a special jurisdiction; and that the decree of the High Court, not being made in the course of its ordinary jurisdiction, the provisions of Sections 109 and 110 of the Code do not apply to confer a further right of appeal on any party. In support of the preliminary objection it was pointed out that by the provisions of Sections 34(2), 36 and 37 the decision of a tribunal under the Act was very specially protected from interference; that Sub-section (5) of Section 34 provides that an appeal preferred under the section shall be heard by a division Court of the High Court; and that by Section 37 any order passed on appeal from a tribunal is given a special efficacy analogous to the effect of an order in rem, all Courts being prohibited from doing anything inconsistent therewith. It was further contended that the kind of question with which under Section 16 of the Act the tribunal was in this case concerned-a question as to the religious character of an institution-is of a very special kind; and that the decision of this question is undertaken merely as a step towards deciding whether or not the institution shall be subjected to the management of certain bodies constituted by the Act, namely, a Committee, a Board, a Judicial Commission. Accordingly their Lordships were pressed to hold that, the Act having given one appeal to the High Court, there is no sufficient basis for an implication that the decision of the High Court is to be subject to the usual incidents as regards a further appeal.

5. Their Lordships intimated at the hearing that they were not of opinion, that the preliminary objection should be sustained. They observe that the tribunal is given by Section 12(9) the same powers as are vested in a Court by the Code, and by Section 12 (11) its proceedings ' so far as may be and subject to the provisions of this Act are to be conducted in accordance with the provisions of the Code.' The formal expression of its decision is described by the Act as a decree or order. The matters which may be brought before the tribunal for decision include not only the question whether an institution is a Sikh Gurdwara within the meaning of Section 16, but include also questions of the amount of compensation to be given to office holders of Gurdwaras on their being superseded in office by the statutory authorities, and the decision of claims made to property which has been included in a list or lists as property belonging to a Sikh Gurdwara. The provision that appeals from the tribunal are to be heard by a division Court and not by a single Judge does not in their Lordships' opinion indicate that the High Court in dealing with such matters would be exercising a special jurisdiction; nor should any such inference be drawn from the provisions of Section 37 which is consistent with the view that the jurisdiction conferred upon the High Court by Section 34 is intended to include the new subject-matter as part of the ordinary appellate jurisdiction: of the High Court. In Secretary of State /or India v. Chelikani Rama Rao (1916) L.R. 43 I. A. 192 : 18 Bom. L.R. 1007 the Board had occasion to consider a case which raised very much the same considerations as the present. Under a Madras Forest Act, the Forest Settlement Officer was charged with the duty to examine all claims made to land within a certain area which the Government was proposing to constitute as a reserved forest. The respondent claimed to be the owner of three parcels of land within the notified area, but the Forest Settlement Officer rejected his, claims. The Special Act provided that in such a case a claimant might prefer an appeal to the District Court in respect of such rejection only. On appeal being made to the District Court, the District Judge affirmed the Forest Settlement Officer's decision. No further appeal had been provided for expressly by the Act, and it was contended that all further proceedings were incompetent. The view taken by the Board however was (p. 197) :

When proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and 'decrees the ordinary rules of the Civil Procedure Code apply.

The Rangoon case already mentioned was considered and the decision was held to be explained by the fact that the proceedings were from beginning to end ostensibly and actually arbitration proceedings, the nature of the question to be tried being merely the value to be put upon certain land. Of the case then before the Board it was said :

The claim was the assertion of the legal right to possession of and property in land; and if the ordinary courts of the country are seized of a dispute of that character it would require in the opinion of the Board a specific limitation to exclude the ordinary incidents of litigation.

6. Again in Maung Ba Thaw v. Ma Pin (1934) L.R. 61 I. A. 158 : 36 Bom. L.R. 427, the Provincial Insolvency Act, 1920, having provided first that the decision of the District Judge should be final, and secondly that in a limited class of case there should be a right to appeal to the High Court, the question arose whether, following upon such an appeal to the High Court, a certificate for a further appeal to His Majesty in Council could be given under the Code. The Board, following the case already cited, laid it down that (p. 161) -

when such a right of appeal is given to one of the ordinary Courts of the country, the procedure, orders and decrees of that Court will be governed by the ordinary rules of the Code of Civil Procedure.

7. In the present case their Lordships are of opinion that the same reasoning applies. The questions which may come for decision before a tribunal under the Sikh Gurdwaras Act include questions which in substance concern the nature of the trusts under which the endowments of certain religious institutions are held. They also include questions of compensation for loss of office and questions as regards claims to property in respect of which the tribunal's powers are not limited by any provisions as to value. There is moreover a provision in Section 32 of the Act whereby, in the course of any suit or proceeding in a civil or revenue Court, such Court is empowered to frame an issue in respect of claims made in connection with a notified Sikh Gurdwara, and to forward a record of the suit or proceeding to a tribunal for decision, the Court being obliged to determine the suit or proceeding in accordance with such decision subject to the right of appeal given to the High Court by Section 34. Having regard to the character, the variety and the importance of the questions to be dealt with by a tribunal, and to the terms in which the right of appeal to the High Court is provided by the section, their Lordships are of opinion that the provisions of the Civil Procedure Code with reference to appeals to His Majesty apply to decrees of the High Court made under Section 34 of the Sikh Gurdwaras Act. The preliminary objection is therefore overruled.

8. Their Lordships have not had occasion to consider and do not pronounce upon the question whether the same conclusion could be reached in the case of appeals brought to the High Court under Sections 106 and 142 of the Act.

9. [The rest of the judgment is immaterial for the purposes of this report.]


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