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The Secretary of State for India Vs. Narsibhai Dadabhai Patel - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 367 of 1922
Judge
Reported inAIR1924Bom65; (1923)25BOMLR992
AppellantThe Secretary of State for India
RespondentNarsibhai Dadabhai Patel
Excerpt:
.....1869), section 82-suit in a subordinate judge's court-secretary of state made a party to a pending suit-subordinate judge cannot try the suit; a suit was instituted in the court of a subordinate judge to restrain certain persona from acting as councillors of a municipality on the ground that they were not validly appointed by government. the secretary of state for india in council was not made a party defendant to the suit as instituted; but he was added as such on his own application. two preliminary issues were raised: (1) whether government was a necessary party; and (2) whether the court had jurisdiction to bear the suit. the subordinate judge was of opinion that government was not a necessary but a proper party to the suit and that his jurisdiction to try the suit was not ousted by..........by due regard to the purpose with which the section was framed. that purpose was 'to enable a party to a suit to get a decision or order of a lower court rectified by the high court, when there would otherwise be no remedy' (p. 37), no reference wan made to the opinions expressed in the two full bench decisions above alluded to ; and it may be respectfully pointed out that the section itself does not make the absence of another remedy a necessary condition of its applicability. this court, however, continued to exercise its revieional jurisdiction even in cases where a remedy by way of an appeal from the final decree was open: cf. somchand v. chhaganlal : (1911)13bomlr207 . in irbasappa v. basangowda (1919) 22 bom. l.r. 746 the appellant asked this court to revise an order made by.....
Judgment:

Coyajee, J.

1. The applicant asks this Court, in the exercise of its revisional jurisdiction to call for the record and proceedings in Suit No. 261 of 1922 of the Court of the First Class Subordinate Judge at Nadiad, and to order that the plaint be returned for presentation to the proper Court, on the ground, inter alia, that the former Court has no jurisdiction to try the suit. A rule was granted on December 1,1922. It has now come on for argument before us.

2. The material facts of the case are these. In March 1922, at a general election of councillors for the Municipality of Nadiad, twenty-five persons were elected to hold office for a period of three years commencing with April 1. In August following seventeen out of that number resigned the office, whereupon a bye-election was held when eight councillors were elected. As nine vacancies still remained to be filled, and as there was a failure to elect; the full number, the Commissioner, N.D., purporting to act under Section 10(2) of the Bombay District Municipal Act, 1901, nominated the nine persons who 6gure as the first nine defendants in the plaint.

3. On October 17, the plaintiffs (now Opponents Nos. 1 and 2) claiming to be rate-payers and voters brought the suit which has given rise to this application. By their plaint (paragraph 3) they contended that 'the Commissioner Saheb of the Northern Division directly nominated the defendants Nos. 1 to 9. The Commissioner Saheb has got no authority to nominate in this way. And us the appointment of such nominated members is illegal, they have got no right to sit in the Municipality as members and to work therein. In spite of this, we strongly apprehend that they taking shelter of the unlawful orders of the Commissioner Saheb are about to sit in the Municipality as members and to work therein.' Then the plaint proceeds : 'The cause of action has arisen. on the date October 14, i922, when the nomination of the defendants Nos. 1 to 9 was declared by the Municipality.' And relief is sought in these terms : 'That it may be declared that the nomination of the defendants Nos. 1 to 9 as members of the Nadiad City Municipality made by the Government is illegal, and that they may be restrained by a permanent injunction from attending the meetings of the Municipality and from doing any work on behalf of the Municipality, and that the defendant No. 10' (i. e. the Municipality) 'may be restrained by a permanent injunction from treating them as members, their nomination being illegal.' On the same day the plaintiffs applied for and obtained a temporary injunction restraining the 10th defendant 'from allowing the defendants 1 to 9 to sit as members of the Municipality, and from dealing with them.'

4. On October 20, the Government Pleader at Kaira applied fro the Court praying that on the allegations contained in the plaint the Secretary of State for India in Council should be brought on the record of the case; it was also alleged that plaintiffs had 'purposely omitted to make the Secretary of State a necessary party.' The learned Subordinate Judge, on October 26, made him a party, as defendant No. 11, as in his opinion the powers of the Commissioner to nominate councillors would have to be considered when deciding the suit on the merits. But he also said:

I allow the application but on condition that if it afterwards appears that the application baa been made simply with a view to oust the jurisdiction of this Court and the plaintiffs are prejudiced thereby it will be open to the plaintiffs then to apply that the name of the appellant as defendant be struck off and the case be tried as if he was not a party. Of course, this does not mean that the plaintiffs' application will be granted as a matter of course. The order only means that the point will then be fully considered and final orders passed then.

5. Four issues were then framed by the Court the first two being: (1) Whether Government is a necessary party in the suit? (2) Whether this Court has jurisdiction to hear the suit? These two issues were tried first, probably on the ground that ' the case or any part thereof may be disposed of on the issues of law only' (Order XIV, Rule 2, Civil Procedure Code). On the first issue the Subordinate Judge held that although the Secretary of State for India in Council was a proper party, he was not a necessary party. On the second he held that notwithstanding the fact that he had made the Secretary of State a party defendant, Section 32 of Act XIV of 1869 did not stand in the way of his trying the suit, the reason being that the Secretary of State was brought on the record on his own application and not at the request of the plaintiffs.

6. On the rule coming on for argument before us, a preliminary objection was raised, on behalf of Opponents Nos. 1 and 2, that inasmuch as the trial Judge had not finally decided the suit, but only given his decision on certain issues of law, his order was merely interlocutory, and therefore the present application made under Section 115 of the Code of Civil Procedure was not competent, This question has given rise to a diversity of judicial opinion. Arguments on both sides of it have been sufficiently discussed and considered in a large number of decided cases. We are, however, bound to give effect to authoritative pronouncements of this Court. The proper grounds and limits of the extraordinary jurisdiction of this Court 'under the Code of Civil Procedure or otherwise' were fully considered by a Full Bench in Shiva Nathaji v. Joma Kashinath I.L.R. (1883) Bom. 341 The results of the earlier decisions were summed up thus (p. 357): 'The High Court will interfere to enforce the exercise of jurisdiction, or to restrain an excess of jurisdiction, in eases apparently calling for such interference, even though there may be a remedy by suit. When there is a remedy by appeal, the cases do not appear to warrant such interference, except under circumstances in which an appeal would manifestly be ineffectual'. And the principle, here pertinent, was laid down (p. 372) that: 'Where an appeal is provided, the Court will not interfere by any peremptory order with the ordinary course of adjudication, save in cases wherein a defeat of the law, and a grave wrong, are manifest, and are irremediable by the regular procedure.' There is much to be said in favour of this rule. The language of Section 115 confers on the High Court wide powers-sufficiently wide to include an interlocutory order: Motilal Kashibhai v. Nana I.L.R. (1892) 18 Bom. 35 and Bai Atrani v. Deepsing Baria Thakor I.L.R. (1915) 40 Bom. 86 : 17 Bom. L.R. 1097. The word 'case' is not specifically defined in the Code ; but it is a word of wide and comprehensive import; and 'inasmuch as Section 15 is merely an empowering section granting certain jurisdiction to the High Court, and as the use or exercise of that jurisdiction will, within the prescribed limits, be regulated by the discretion of the High Court, the section ought to receive rather a liberal than a narrow interpretation:' Bai Atrani v Deepsing Baria Thakor I.L.R. (1915) 40 Bom. 86 : 17 Bom. L.R. 1097. The Full Bench decision above referred to was approved by another Full Bench of this Court in Vithal Krishna v. Balkrishna Janardan I.L.R. (1886) 10 Bom. 610. In Motilal Kashibhai v. Nana I.L.R. (1892) 18 Bom. 35 however, the opinion was expressed that the word ' case' may be wide enough to include an interlocutory order, but a word of such general import must be controlled by due regard to the purpose with which the section was framed. That purpose was 'to enable a party to a suit to get a decision or order of a lower Court rectified by the High Court, when there would otherwise be no remedy' (p. 37), No reference wan made to the opinions expressed in the two Full Bench decisions above alluded to ; and it may be respectfully pointed out that the section itself does not make the absence of another remedy a necessary condition of its applicability. This Court, however, continued to exercise its revieional jurisdiction even in cases where a remedy by way of an appeal from the final decree was open: cf. Somchand v. Chhaganlal : (1911)13BOMLR207 . In Irbasappa v. Basangowda (1919) 22 Bom. L.R. 746 the appellant asked this Court to revise an order made by the Collector under the Mamlatdars' Courts Act. The opponents before us rely on the following observations occurring in the judgment of the learned Chief Justice: 'In our opinion the Court should be slow to exercise its powers of revision under Section 115 of the Code unless the party applying to the Court has no other remedy. But in a case where the proceedings which are sought to be revised are purely summary proceedings, which did not finally decide the dispute between the parties, then as far as we are concerned we do not think that we should exercise our powers of revision' (p. 747). This view is entirely consistent with the sixth principle laid down in the Full Bench decision in Shiva Nathaji'a case (p. 372).

7. In support of the preliminary objection reliance is placed on the decision of Macleod 0. J. and Heaton J. in Bai Rami v. Jaga Dullabh (1919) 22 Bom. L.R. 801. There are, no doubt, observations in the judgments which, if not read in their context, might favour the opponents' contention. But in order to be able to correctly appreciate those observations, it is essential to know the facts of that case. The applicant before the High Court was one of six defendants in the suit; although served with a summons to appear on October 18, 1918, she failed to appear; an order was then passed directing the suit to proceed ex parte against her ; on December 8 and 12 the case was heard and adjourned till July 12 ; on that day she appeared and applied for leave to defend the suit; the trial Judge rejected this application and declined to set aside his order of October 1. It was in these circumstances that the applicant invoked the revisional jurisdiction of this Court, under Section 115. In his judgment the earned Chief Justice fully sets out the above facts, and then makes the following observations on which the opponents now rely : 'We have...no power to call for the record of any case which is under trial by a Court subordinate to the High Court. It seems necessary to point out that an application like this made during the course of a trial asking the Court to exercise its power under Section 115 in the matter of interlocutory orders cannot be countenanced. If such applications are made in future they should not be admitted' (p. 802). And Heaton J : 'If there is one kind of case which Section 115 most emphatically points to as not falling within its terms, it is a ease like the present, where there is an interlocutory order on an incidental matter which does not prevent the further progress of the suit' (p. 802). The remarks, it is true, are not confined to the particular case then before the Court ; for they were obviously meant to apply to a class of cases. But the class intended was one, of which that particular case was but a type. The judgments contain no reference to the earlier Full Bench decisions of this Court; and it is impossible to say that their Lordships were dissenting from those authoritative pronouncements.

8. I, therefore, hold that this application is competent under Section 115 of the Code of Civil Procedure. In any event, our powers derived from Section 5 of Bombay Regulation II of 1827 are very wide. The powers thereby conferred on the Sudder Dewanny Adawlat were transferred to this Court by Section 9 of the High Courts Act, 1861, and they continue still in force by virtue of Section 106 of the Government of India Act.

9. The question then is whether the application before us discloses a fit case for the exercise of our extraordinary jurisdiction, In my opinion it does.

10. The main question in the suit relates to the legality and validity of the nomination of nine Municipal Councillors, whose ordinary life in three years. The plaint was filed in October 1922. If we do not interfere now, but allow the litigation to run its full course through the trial Court and the Court of Appeal, the applicant's ultimate success can yield no practical results, beyond a mere waste of time, energy and money. Moreover, delay in a matter of this nature must necessarily prejudicially affect public interests.

11. On the first issue, there can be no doubt, on the case as made in the plaint, that the Commissioner ought to have been joined as a party defendant. The lower Court concedes that he is a proper party. I hold that he is also a necessary party. The sole aim and purpose of the suit is to avoid the nominations made by him, in the exercise of statutory powers. Those powers are conferred on him by the statute in the interests of the public. It is necessary to hear him before it could be decided that the nominations made by him were illegal. For what is the relief which the plaintiffs claim 1 The plaint says: 'It may be declared that the nomination of the defendants Nos. 1 to 9 an the members of the Nadiad City Municipality made by the Government is illegal.' It is obvious, then, that Government is a necessary party.

12. On the second issue, the finding of the Subordinate Judge is manifestly wrong. He has already added the Secretary of State for India in Council as a party to the suit; he is a necessary party ; a 32 of Act XIV of 1869 comes in the way of his trying the suit. The learned Judge does not attempt to ascertain the meaning of the section itself. He says; 'There are very few reported cases' on that section. He therefore proceeds to consider some decided cases bearing on a, 80 of the Code of Civil Procedure and concludes that 'the Court has jurisdiction to hear the suit when the Secretary of State has been made a party by the Court at his own request and no suit has been instituted against him by the plaintiffs.' It is not easy to follow his process of reasoning. Section 32 is in these terms:

No Subordinate Judge or Court of Small Causes shall receive or register a suit in which the Government or any officer of Government in his official capacity is a party, but in every such cage such Judge or Court shall refer the plaintiff to the District Judge, in whose Court alone (subject to the provisions of Section 10) such suit shall be instituted.

13. It was urged before us that that section merely prohibits a Subordinate Judge from receiving or registering a suit of the nature therein described, but that it does not prevent him from trying it. I am unable to accept this desperate construction of the enactment. A Subordinate Judge is not a ministerial officer appointed for the purpose of receiving or registering suits. When he receives and registers a suit he does it for the purpose of trying it. There can be no object in preventing him from receiving and registering a suit, if it was intended to leave him free to try it. The section confers the exclusive jurisdiction of trying suits of a specified description on the District Judge, The other construction would leave the enactment at the mercy of a litigant; he could avoid these provisions of the Act by contrivanoes which are easy to imagine and not necessary to describe.

14. For these reasons I would make the rule absolute and direct that the lower Court should return the plaint to the plaintiffs to be presented to the proper Court. Plaintiffs to pay costs of this application ; and also costs of the defendants in the lower Court-one set.

Lallubhai Shah, Kt., Ag. C.J.

15. I am of opinion that this Court has jurisdiction to interfere in a case of this kind, and that under the circumstances of this case we should interfere in the exercise of that jurisdiction.

16. The preliminary objection as to the jurisdiction of this Court to call for the records of this case under Section 115 of the Code of Civil Procedure has been elaborately argued. But I am not prepared to accept the contention that at no interlocutory stage of a suit this Court can interfere under that section. Various decisions have been cited at the bar on both sides as to the meaning of the expression 'any case which has been decided by any Court subordinate to the High Court, and in which no appeal lies thereto.' I do not think that it can serve any useful purpose to attempt to lay down any definition of 'a case which has been decided.' Where the question of jurisdiction such as arises in this case is involved, and where the subordinate Court has decided that question, the case cannot be held to be outside the scope of the expression. The interlocutory stage of the proceedings will evidently be a point to be considered in deciding whether it is a fit case for interference. On a question of jurisdiction arising at an interlocutory stage under circumstances which in essential particulars bearing on the preliminary point are similar to the circumstances in the present case, this Court interfered in Somchand Bhikhabhai v. Ghhaganlal I.L.R. (1911) Bom. 243 : 13 Bom L.R. 207. Among the decisions which have been cited I have not been able to find any case, where it is held by this Court that the High Court has no jurisdiction to call for the record of a case, in which the question of jurisdiction is involved at an interlocutory stage under Section 115 of the Code of Civil Procedure. The real safeguard against undue or improper interference at an interlocutory stage is not to put a restricted meaning upon an expression which is comprehensive enough to include a case like the present but to exercise it with due regard to the circumstances of the case, and the nature of the question of jurisdiction. As pointed out in Shiva Nathaji v. Joma Kashinath I.L.R. (1883) 7 Bom. 341, 'the Court cannot impose on itself limitations without regard to circumstances.' Even assuming that the case is not covered by Section 115, I think it would clearly be covered by the words of the second clause of Section 5 of Bombay Regulation II of 1827. Though the Regulation on this point is repealed, this Court still retains the power under the statutes, which the Sudder Devanny Adawlat had under the said repealed clause.

17. As regards the second question, on the cause of action, as disclosed in the plaint and the nature of the relief claimed, I think that the Commissioner or the Secretary of State for India in Council is a necessary party. The distinction between a necessary party and a proper party is real; and it is not always easy to draw that distinction. The learned Subordinate Judge was of opinion that he was only a proper party and not a necessary party. It is true that the relief by way of injunction is directed against the other defendants and it may be said that the relief by way of declaration is not absolutely essential. But it is clear that the principal, if not the only, question of real importance involved in the suit relates to the validity of the Commissioner's order ; and on the whole I think that the presence of the officer concerned or the Government before the Court is necessary in order to enable the Court to effectually and completely adjudicate upon the questions involved in the suit. This suit cannot be justly tried and decided and the declaration sought cannot be made in the absence of the officer or the Government, I, therefore, consider the applicant a necessary party. The judgment of the lower Court proceeds upon the basis that he is not a necessary party. It is not essential for the purposes of this case to decide the question whether Section 32 of the Bombay Civil Courts Act will necessarily oust the jurisdiction of a Subordinate Judge in a case where the Government or the public officer is not a necessary party but is kept on the record merely because the case between the private parties may be more effectually dealt with. It is conceivable that an order such as was made by this Court in Narayan Venku v. Sakharam Nagu I.L.R. (1887) 11 Bom. 519 may imply that the jurisdiction was not necessarily ousted. I reserve my opinion on this point. But where the Government or any officer of Government in his official capacity is a necessary party, as in this case, it is clear that Section 32 of the Bombay Civil Courts Act must apply. It makes no difference in its application that the public officer or the Government has not been joined by the plaintiff as a defendant from the beginning before the suit is received or registered. The argument, advanced by the learned Counsel for the opponents, that if the suit is once received or registered and if the Government or the public officer is made a party afterwards the bar created by Section 32 against the jurisdiction of a Subordinate Judge cannot apply, does not deserve any serious treatment. I reject that argument.

18. It is clear to my mind that it would be futile to allow this suit to go on in the Court of a Subordinate Judge. It is a case in which we ought to prevent further proceedings in the Court, which according to law cannot entertain them. In the view which we take as to the Secretary of State for India in Council being a necessary party it would be a case of illegal assumption of jurisdiction, if that Court were to try the suit.

19. I, therefore, concur in the order proposed by my learned brother.


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