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Narayan Vithal Samant Vs. Jankibai Sitaram Samant - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberCivil Application No. 55 of 1915
Judge
Reported inAIR1915Bom146; (1915)17BOMLR655; 30Ind.Cas.560
AppellantNarayan Vithal Samant
RespondentJankibai Sitaram Samant
Excerpt:
.....court, exercising the ordinary original civil jurisdiction of the court, to slay the hearing of a suit pending for trial in a subordinate judge's court in the mofussil unless authorised so to do by rule.;per macleod j.-a single judge, sitting on the original side of the high court, is competent to restrain the parties in a suit before him from proceeding with a suit in a subordinate judge's court in the mofussil, and so, in effect, slay the proceedings. - - 13. i should like to point out that the question seems to arise not on the application for a transfer of the high court suit to the subordinate judge's court, for if that application were granted the suit would be transferred and all interlocutory orders made in the suit would go with it, but on the application for a consolidation..........sitting in the exercise of the court's ordinary original civil jurisdiction, for the stay of a suit pending in the court of the subordinate judge of ratnagiri. but, by clauses 11 and 36 of the letters patent and rule 62 of the original side rules of this court, the local jurisdiction of the learned judge was confined to the town and island of bombay. it is clear, therefore, and it was scarcely contested in argument, that the order under discussion appertains to the appellate side of the court. the same result would follow if the order could properly be attributed to this court's general powers of superintendence conferred by section 15 of the act, for under that section, the powers granted are powers of superintendence over all courts subject to this court's appellate jurisdiction......
Judgment:

Batchelor, J.

1. The question referred to the Full Bench should, in ray opinion, be answered in the negative.

2. The jurisdiction of this Court, and of the Judges composing the Court, is determined by the Statute 24 & 25 Vic. c. 104, by the Letters Patent issued thereunder, and by the Rules framed by the Court under the authority conferred by Section 13 of the Act. By Section 9 of the Act, it is provided that the Court shall have and exercise all such jurisdiction as Her Majesty may by Letters Patent grant and direct. Primarily, therefore, it is upon the Court that the jurisdiction is conferred, and Section 2 of the Act provides that the Court shall consist of a Chief Justice and as many Judges, not exceeding fifteen, as Her Majesty may appoint. Section 13 empowers the Court by its own rules to ' provide for the exercise, by one or more Judges, or by Division Courts constituted by two or more Judges,..of the Original and Appellate jurisdiction vested in such Court, in such manner as may appear to such Court to be convenient for the due administration of justice.' In the exercise of this power this Court has made rules for the exercise of jurisdiction by the Judges both on the Original and the Appellate Side.

3. The intent and effect of these provisions seem to me to be that the jurisdiction conferred is conferred on the Court as a body: it is the Court which is to 'have and exercise' the jurisdiction granted: but, inasmuch as it would not be 'convenient for the due administration of justice' that the entire Court should have to sit for the valid determination of every suit and appeal and application, power is given to the Court to make Rules for the exercise of the Court's jurisdiction by one or more Judges within the limits and subject to the conditions prescribed by the Rules. The powers so delegated would thus fix the limit within which such Judge or Judges would be competent to exercise the Court's jurisdiction, and any order made by a Judge or Judges in excess of this authority would be void as being beyond the jurisdiction which the Judge or Judges were legally authorized to exercise.

4. Now the particular order with which we are here concerned is an order made by a single Judge, sitting in the exercise of the Court's Ordinary Original Civil Jurisdiction, for the stay of a suit pending in the Court of the Subordinate Judge of Ratnagiri. But, by Clauses 11 and 36 of the Letters Patent and Rule 62 of the Original Side Rules of this Court, the local jurisdiction of the learned Judge was confined to the Town and Island of Bombay. It is clear, therefore, and it was scarcely contested in argument, that the order under discussion appertains to the Appellate Side of the Court. The same result would follow if the order could properly be attributed to this Court's general powers of superintendence conferred by Section 15 of the Act, for under that section, the powers granted are powers of superintendence over all Courts subject to this Court's Appellate Jurisdiction. This being so, the case falls under Rule 1 of the Appellate Side Rules, which provides that, with certain exceptions not now material, the civil jurisdiction of the Court on the Appellate Side shall be exercised by a Division Court consisting of two Judges. It follows, therefore, that the order now in question was made fay the learned Judge in excess of the jurisdiction which he was legally empowered to exercise.

5. If that be so, it seems to me unarguable that the Judge acquired jurisdiction by the mere circumstance that the order was passed on an application made in a suit which the Judge had jurisdiction to try. And as to the contention that substantially the same result could have been secured by an order in personam restraining some of the parties from proceeding with the Ratnagiri suit, and that an order of this nature would have been within the Judge's competence, it is enough to say that that is not the order which was made, or which arises for consideration on the question submitted to this Bench. I think, therefore, that we should refrain from expressing any opinion as to the validity which might attach to any such order in personam, and should content ourselves with returning a negative answer to the question referred to us.

Basil Scott, C.J.

6. I agree.

Shah, J.

7. I agree.

Hayward, J.

8. I agree.

Macleod, J.

9. The applicants presented a petition to a Division Bench on the Appellate Side of the High Court praying that a Suit 246 of 1913 instituted and then partly tried on the Original Side of the High Court might be (1) removed for trial to the Court of the First Class Subordinate Judge of Ratnagiri, and (2) consolidated with two suits pending in that Court.

10. A preliminary objection to the granting of the latter prayer was constituted by the fact that an order had been made on the 21st December 1914 in Suit 246 of 1913 whereby the proceedings in the two suits in the Ratnagiri Court had been stayed. The applicants contended that this order was ultra vires and could, therefore, be disregarded. If they obtained a decision to that effect they could proceed with their suits.

11. The question, therefore, arose whether the Judge had jurisdiction-to make the order of the 21st December 1914. The Division Bench being of opinion that the authorities on the point were conflicting referred the following question to a Full Bench.

12. Whether it is competent to a single Judge of this Court, exercising the ordinary civil jurisdiction of the Court, to stay the hearing of a suit pending for trial in a Subordinate Judge's Court in the mofussil, unless authorised so to do by rule?

13. I should like to point out that the question seems to arise not on the application for a transfer of the High Court suit to the Subordinate Judge's Court, for if that application were granted the suit would be transferred and all interlocutory orders made in the suit would go with it, but on the application for a consolidation of the suit, when transferred, with other suits pending in the same Subordinate Judge's Court, since if the Subordinate Judge could not proceed with these suits, it would be of little use consolidating another suit with them.

14. There is no provision in the Civil Procedure Code for the consolidation of suits but a Court has inherent jurisdiction under Section 151 to consolidate two or more suits pending before it. The High Court however has no jurisdiction to entertain an original application for the consolidation of suits pending before a District Court and the case is still stronger when the suits are pending in different Courts.

15. The applicants have really adopted this novel procedure in order to get rid of the order of the 21st December 1914 and I venture to submit that on the facts before us anything that we may say regarding the jurisdiction of the Judge to make that order will be obiter.

16. However this point was not taken by the opponents' counsel in his argument and I therefore proceed to deal with the question referred to us on its merits.

17. I have had the advantage of reading the judgment of my brother Batchelor and while I am in accord with the greater part of it it seems to assume that the order in question was a prohibition, nor can I agree that the question is so concise and free from ambiguity as to admit of a direct answer. For the question may refer to three possible orders which a Judge might make.

18. A Judge sitting on the Original Side might make an order for a stay of proceedings at the instance of a party to a suit in a Subordinate Judge's Court. It is beyond controversy that such an order would be without jurisdiction.

19. Secondly, a Judge at the instance of a party in a suit pending before him might issue a prohibition to a Subordinate Judge against proceeding with a suit between the same parties.

20. Such an order would clearly be without jurisdiction.

21. Thirdly, a Judge might restrain the parties in a suit pending before him from proceeding with a suit in a Subordinate Judge's Court in the Mofussil. Such an order would, in my opinion, be with jurisdiction under Section 151 of the Code.

22. In Mungle Chand v. Gopal Ram I.L.R. (1906) 34 Cal. 101 under the Code of 1882, Sale J. went so far as to restrain the parties in a suit before him from proceeding with a suit pending in the Court at Bareilly but his attention does not seem to have been drawn to the provisions of Section 56 of the Indian Specific Relief Act.

23. An order in personam to stay proceedings is, in effect, an injunction, for though it may be desirable it is not always necessary that an order, which prevents the parties from doing certain acts, should contain the word 'enjoin' or 'restrain.' For instance, an order appointing a Receiver of certain property is also an injunction restraining the parties from dealing with that property. Nor is an order in personam limited to the acts of the parties within the local limits of the Ordinary Original Civil Jurisdiction of the High Court except by express enactment.

24. In my opinion therefore a single Judge sitting on the Original Side of the High Court is competent to restrain the parties in a suit before him from proceeding with a suit in a Subordinate Judge's Court in the Mofussil, and so in effect stay the proceedings.


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