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PravIn R. Geglani Vs. Beharilal Beniprasad Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberA.F.O. No. 310 of 1976
Judge
Reported inAIR1978Bom255; (1978)80BOMLR64; 1978MhLJ641
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(4), 9, 19, 20, 44A and 44A(1) - Order 21, Rule 22; Bombay City Civil Court Act, 1948 - Sections 3, 4 and 12; Copyright Act - Sections 62, 62(1) and 62(2); Calcutta City Civil Courts Act - Sections 5
AppellantPravIn R. Geglani
RespondentBeharilal Beniprasad Pvt. Ltd.
Appellant AdvocateY.H. Muchhala, Adv.
Respondent AdvocateM.M. Sakhardande and ;A.B. Kale, Advs.
Excerpt:
civil procedure code (v of 1908), sections 44a, 2(4) and order xxi, rule 22 - bombay city civil court act (bom. xl of 1948), sections 3, 4, 12, read with notification dated january 20, 1950 issued under section 4--execution of decree passed by the supreme court of aden--whether for purpose of execution of the decree the city civil court was the district court within the meaning of section 44a of the civil procedure code.;under the provisions of section 12 of the bombay city civil court act, 1948, read with the notification dated january 20, 1950 issued under section 4 of the bombay city civil court act, it is the bombay city civil court which is the principal court of original civil jurisdiction in respect of matters covered by the notification, and therefore would be the district court..........of 1970 on the file of the supreme court of aden, against the order of the learned judge of the city civil court at bombay dated 6th april 1976 by which he set aside his own order dated 17th february, 1976, making the notice under order 21, r. 22 of the civil p. c. absolute.2. briefly stated the facts giving rise to this appeal are these: it appears that the plaintiff filed a suit against the defendants in the supreme court at aden. after serving the defendants an ex parte decree was passed. the plaintiff had claimed an amount of y. d. 423 i.e. about rs. 10,000/- and he got an ex parte decree for y. d. 390 equivalent to rupees 9080/-, after securing the certified copy of the decree passed by the supreme court at aden, the plaintiff filed the certified copy of the decree in the city.....
Judgment:

1. This is an appeal by the original plaintiff in suit No. 172 of 1970 on the file of the Supreme Court of Aden, against the order of the learned Judge of the City Civil Court at Bombay dated 6th April 1976 by which he set aside his own order dated 17th February, 1976, making the notice under Order 21, R. 22 of the Civil P. C. absolute.

2. Briefly stated the facts giving rise to this appeal are these: It appears that the plaintiff filed a suit against the defendants in the Supreme Court at Aden. After serving the defendants an ex parte decree was passed. The plaintiff had claimed an amount of Y. D. 423 i.e. about Rs. 10,000/- and he got an ex parte decree for Y. D. 390 equivalent to Rupees 9080/-, After securing the certified copy of the decree passed by the Supreme Court at Aden, the plaintiff filed the certified copy of the decree in the City Civil Court and sought for its execution.

3. A notice under Order 21, Rule 22, having been issued the same was resisted by the defendants-respondents on several grounds. None of those grounds found favour with the learned Judge with the result he made the notice under Order 21, Rule 22 absolute by his order dated 17th February 1976.

4. Soon thereafter the defendant-respondents filed an application on the 3rd March 1976 for a review of the order dated 17th February 1976. Among other grounds the review was sought on the ground that having regard to the provisions of Section 44A read with Section 2(4) of the Civil P. C. the City Civil Court had no jurisdiction to execute the decree and that it is only the High Court on its Original Side which could execute the decree. This contention found favour with the learned Judge and, he, therefore, set aside his earlier order dated 17th February 1976 and discharged the notice under Order 21, Rule 22 of the Civil P. C.

5. It is the correctness of that order which is challenged by the plaintiff decree-holder by this appeal,

6. Mr. Muchhala, learned Advocate for the appellant has assailed the order of the learned Judge of the City Civil Court, In particular, he contends that the learned Judge has lost sight of the provisions of the Bombay City Civil Court Act, 1948. Mr. Sakhardande on the otherhand has supported the reasoning of the learned Judge of the City Civil Court.

7. Section 44A(1) of the Civil P. C. is to this effect:

'Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court the decree may be executed in India as if it had been passed by the District Court,'

8. There is no dispute that the Supreme Court at Aden is one of the superior Courts of a reciprocating territory.

9. The expression 'District Court' has not been defined in the Civil P. C, Section 2(4) of the C. P.C. is to this effect;

'District' means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a 'District Court'), and includes the local limits of the ordinary original civil jurisdiction of a High Court.'

10. What was held by the learned Judge of the City Civil Court and what is pressed before me by Mr. Sakhardande is that the City Civil Court is not the District Court inasmuch as it is the High Court in its original Civil jurisdiction which can be considered as the District Court. Mr. Sakhardande has gone one step further and submits that after all the City Civil Court in Bombay is subordinate to the High Court and it is therefore the High Court on the Original Side which is the principal Court of original civil jurisdiction in Bombay. In the assumption which was made by the learned Judge of the City Civil Court the provisions of the Bombay City Civil Court Act, have been clearly overlooked.

11. Section 3 of the Act reads as under: 'The State Government may, by notification in the Official Gazette establish for the Greater Bombay a Court, to be called the Bombay City Civil Court. Notwithstanding anything contained in any law, such court shall have jurisdiction to receive, try and dispose of all suits and other proceeding of a civil nature not exceeding ten thousand rupees in value, and arising within the Greater Bombay except suits or proceedings which are cognizable-

(a) by the High Court as a Court of Admiralty or Vice-Admiralty or as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial jurisdiction, or

(b) by the High Court for the relief of insolvent debtors, or

(c) by the High Court under any special law other than the Letters Patent, or

(d) by the Smell Cause Courts Provided that the State Govt. may, from time to time, after consultation with the High Court, by a like notification extend the jurisdiction of the City Civil Court to any suits or proceedings which are cognizable by the High Court as a Court having testamentary or intestate jurisdiction or for the relief of insolvent debtors.'

12. Section 4 provides that :

'Subject to the exceptions specified in Section 3, the State Government may, by notification in the Official Gazette, invest the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature arising within the Greater Bombay and of such value not exceeding twenty-five thousand rupee as may be specified in the notification.'

13. A notification dated 20th January 1950 bearing No. 2346/V, published in the Bombay Government Gazette Part IV-B at page 165, extended the jurisdiction of the City Civil Court to Rs. 25,000/-.

14. Section 12 of the Act provides as under:

'Notwithstanding anything contained In any law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court:

Provided that the High Court may, for any special reason, and at any stage remove for trial by itself any suit or proceeding from the City Court,'

15. There Is no doubt that the certified copy of a decree of a foreign court as in this case has to be filed in a District Court as that expression occurs in Section 44A of the Civil P. C. There is also no doubt that in the absence of provisions in the Bombay City Civil Court Act, the Original Side of the High Court would have been the District Court as defined in Section 2(4) of the Civil P. C. read with the provisions of the Letters Patent. But the question to be considered is as to what is the effect of the establishment of the Bombay City Civil Court by the Bombay City Civil Court Act. 1948, and the provisions of Sections 3, 4 and 12 of the said Act, It would appear that Section 12 clearly ousts the jurisdiction of the High Court in respect of matters of which cognizance is required to be taken by the City Civil Court in view of the provisions of Ss. 3 and 4 read with the notification extending the pecuniary jurisdiction of the City Civil Court to Rs. 25,000/-.

16. The combined effect of Section 12 of the Bombay City Civil Court Act, read with the notification of the Government dated 20th January 1950 is to constitute the Bombay City Civil Court as the principal civil court of original side within the limits of Greater Bombay in respect of suits and other proceedings of civil nature not exceeding Rs. 25,000/- in value and arising within the Greater Bombay subject however to the exceptions specified in Section 3 of the Bombay City Civil Court Act, 1948. In other words in respect of such matters the city civil court is the District Court, and, therefore, it is the city civil court which has jurisdiction to execute the decree as provided in Section 44A of the Code of Civil Procedure.

17. My attention has been drawn by Mr. Muchhala to a Division Bench decision of the Calcutta High Court reported in Maheshwar Swain v. Bidyut Probha Art Press : AIR1971Cal455 . In that case the appellant-plaintiff had filed two suits for damages, injunction and other reliefs in respect of alleged infringement of the plaintiff's copyright against the defendants. The City Civil Court dismissed the suits on the preliminary ground that the suits were not entertainable by the said Court. The suits were obviously under Section 62 of the Copyright Act and, under that section, such suits have to be instituted in the 'district Court having jurisdiction'. For the meaning of the expression 'District Court' one has to turn to Section 2(4) of the C.P.C. and, on the question of jurisdiction, the immediately relevant sections which were considered were Sections 19 and 20 of the Code. It was observed that the Copyright Act in Sub-section (2) of Section 62, contains an extension of that jurisdiction. The Court observed that it is clear from the above that, in order that the City Civil Court would be entitled to entertain the present suits under the above law, it must be a 'district court having jurisdiction' within the meaning of Sub-section (1) of Section 62, read with or in the light of Section 2(4) of the Civil P. C. and the relevant jurisdictional provisions, as mentioned hereinbefore. The Court therefore observed that the immediate enquiry, would be whether the City Civil Court would, in the instant case, satisfy the above test. In para 7, the Court observed that the point, therefore, would be whether the City Court could be held to be 'the principal civil court of original jurisdiction' for the aforesaid purpose within the meaning of Section 2 Sub-section (4) of the Civil P. C.

18. The question was answered as under in para 8 of the judgment:

'It is obvious that, under Section 5 of the Calcutta City Civil Court Act, the instant suits, being of value, less than Rs. 50,000/-, would be entertainable only by the City Civil Court under Sub-section (2) of the said Section 5 to the exclusion of all other courts, including the High Court. In the circumstances, the City Court may well be regarded as 'the principal civil court of original jurisdiction' for purposes of the instant suits within the meaning of Section 2, Sub-section (4) of the Civil P. C.'

19. In para 9, the Court observed as under:

'In the above view, the Calcutta City Civil Court will be 'the principal civil court of original jurisdiction' within the local limits of which the defendants of the instant suits reside and the plaintiff also carries on business. That Court, therefore, will be the appropriate court and the proper forum for entertaining and trying the present suits, it being, for that purpose, the 'district court having jurisdiction', within the meaning of Section 62(1) of the Copyright Act, satisfying, as it does, the relative tests under Sections 2(4) and 20 of the Code.'

20. Further on in para 10, it is observed as under:

'The matter, considered above, may also be looked at from another point of view to lead to the same result. Prior to the Calcutta City Civil Court Act, this High Court, in its original jurisdiction, would have been the principal civil court of original jurisdiction, within the local limits of which the defendants reside and the plaintiff also carries on business, and, accordingly, these suits would have been entertainable by this High Court in its original jurisdiction. After the enactment of the City Civil Court Act, however, in view of Section 5 of the said Act, that jurisdiction has clearly been taken away from this High Court and vested in the City Civil Court under Sub-section (2) of Section 5, read with Sub-section (1). This is clear, on a reading of the said Section 5, the two reservations in Sub-sections (3) and (4) not being relevant for our present purpose. That position is also affirmed by Sub-section (5) of the said Section 5. Clearly, therefore, the change, introduced by the City Civil Court Act to the relevant law, as noticed above, would make the City Civil Court, for purposes of the present suits, the 'principal civil court of original jurisdiction' within the local limits whereof the defendants resideand the plaintiff also carries an business. From this point of view also, the City Civil Court will be the court in which the present suits ought to be filed.'

21. With respect the above observations support my view that having regard to the provisions of Section 12 of the Bombay City Civil Court Act, 1948, read with the notification of 1950, issued under Section 4 of the Bombay City Civil Court Act 1948, it is the Bombay City Civil Court which is the principal court of original civil jurisdiction in respect of the matters covered by the notification of 1950, and, therefore, it would be the District Court referred to in Section 44A of the Civil P. C.

22. Clearly therefore the learned Judge was in error when without taking into consideration the effect of the provisions of Sections 4 and 12 of the Bombay City Civil Court Act, 1948, he concluded that the City Civil Court at Bombay was not the District Court as that expression occurs in Section 44A of the Civil P. C. and that it is the High Court on its original civil jurisdiction alone which can be considered as a District Court.

23. Reliance was placed by the learned Judge of the City Civil Court and is also placed by Mr. Sakhardande on the Full Bench decision of the Madras High Court reported in Sheik Ali v. Sheik Mohamad AIR 1967 Mad 45. In that case the Court was only concerned with the interpretation of the expression 'as if it had been passed by the District Court' occurring in Section 44A of the Civil P. C. The Court was not at all concerned with the question which arises for my decision in this appeal and, therefore, this authority is not at all relevant for the point for decision.

24. One more authority which is relied upon by Mr. Sakhardande in support of the order passed by the learned Judge of the City Civil Court is reported in Daily Calendar Supplying Bureau v. United Concern : AIR1967Mad381 , In that case at the fag end of paragraph 5 of the judgment it is observed as under:--

'So far as Madras City is concerned, the City Civil Court is not the principal Court of original jurisdiction. Its powers are limited to what have been conferred on it by Act VII of 1892 within the upper limits of valuation of suits specified by notifications issued thereunder. If the interpretation given by learned Counsel is accepted, the anomalous resultwould follow that when a case of infringement of copyright arises within the area of the original jurisdiction of the High Court, there will be no Tribunal competent to try the suit. No doubt if such an anomalous result ensues because of a real lacuna in the legislative provisions, the Court cannot step in to fill up that lacuna. Therefore, it is necessary to consider whether such a lacuna really exists, or whether the existing provision is not sufficient to give jurisdiction to the High Court.'

25. The Court thereafter went on to point out that there is no such lacuna and further observed as under : (at para 6).

'Clauses 11 and 12 of the Letters Patent confer ordinary original civil jurisdiction to the High Court, over the Presidency Town of Madras. Therefore, the area of the Presidency Town will be a district as defined in Section 2(4) of the Civil P. C., and when the High Court exercises its original civil jurisdiction over the city limits, it can be deemed to be a District Court, in those cases where resort to the definition in Section 2(4) of the Civil P. C., is permissible for the purpose of fixing jurisdiction. Section 9 of the Civil P. C, gives power to every Civil Court to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred, and the explanation to that section says that a suit in which the right to property or to an office is contested is a suit of civil nature. It is well recognised that copyright is property, and therefore, a suit seeking reliefs for infringement of copyright is a suit of a civil nature. If such infringement occurs, and the cause of action for a suit based on the infringement arises within the area of the ordinary original civil jurisdiction of the High Court, that Court can be deemed to be a District Court as per definition in Section 2(4) of the Civil P. C. and will have power to try the suit.'

26. This judgment also is not relevant for our purpose. That was not at all a case where it was or could have been contended that the City Civil Court at Madras was the district court within the meaning of Section 2(4) of the Civil P. C. On the other hand, it was contended and rightly contended that inasmuch as the City Civil Court of Madras constituted under the Act No. VII of 1892 having had a limited jurisdiction and it being not a principal court of original jurisdic-tion it wag the High Court which is the principal court of original civil jurisdiction. That is not at all a case where unlike the City Civil Court at Bombay which has exclusive jurisdiction under Section 12 of the Act, the City Civil Court of Madras as then constituted had exclusive jurisdiction over the matters in dispute. Therefore, the question of considering the conflict of jurisdiction did not at all arise in that case. That authority also therefore has no application to the facts of our case.

27. Differing therefore from the learned Judge of the City Civil Court, I hold that for the purpose of executing the decree in question, it is the City Civil Court which is the District Court within the meaning of Section 44A of the Civil P. C.

28. The result, therefore is the appeal is allowed. The order of the learned Judge of the City Civil Court dated 6th April 1976 setting aside his order dated 17th Feb. 1976, is set aside and his order dated 17th Feb. 1976 making the notice under Order 21, Rule 22 of the Civil P. C. absolute is restored with costs in both the Courts.

29. Appeal allowed.


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