Skip to content


L.S. Sherlekar Vs. D.L. Agarwal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Reference No. 1 of 1965
Judge
Reported inAIR1968Bom439; (1968)70BOMLR100; 1968MhLJ253
ActsBombay Civil Courts Act, 1869 - Sections 23 and 37; Code of Civil Procedure (CPC), 1908 - Sections 24 - Order 46, Rules 1 and 4
AppellantL.S. Sherlekar
RespondentD.L. Agarwal
Appellant AdvocateG.K. Vinchure, Adv.
Respondent AdvocateM.N. Chandurkar, Asst. Government Pleader for ;State
Excerpt:
.....and need not be such as to create a vacancy as such in the office as by death or suspension of the civil judge.;the words 'vacancy' in the marginal note to section 37 and 'vacated' in the latter part of the section are not terms of article they must have their ordinary meaning that the officer is not on duty.;in cases governed by section 37 of the bombay civil courts act an order for transfer from one civil judge to another under section 24 of the civil procedure code, 1908, is not required to be made.;a reference under the provisions of order xlvi of the civil procedure code, 1908, is not to be made because a judge thinks that a certain direction by the district judge or by the high court is wrong. a reference is to be made only when an important issue of law arises in the suit. if any.....patel, j. (1) this reference is made by the fourth joint civil judge, junior division, nagpur, who himself is the applicant in the case, and it arises out of somewhat peculiar circumstances.2. the plaintiff in the suit out of which this reference arose is one sherlekar, and the defendant is one agarwal. the plaintiff happens to be an advocate. he instituted a suit in the court of civil judge, senior division, nagpur, being suit no. 765 of 1964, against the defendant for some money due to him. the case was assigned by the civil judge, senior division, to the fifth joint civil judge, junior division. it appears that the fifth joint civil judge mr. pande, was deputed to umrer court for half a month every month, to perform his duties at umrer. an office order was, therefore, made by the.....
Judgment:

Patel, J.

(1) This reference is made by the Fourth Joint Civil Judge, Junior Division, Nagpur, who himself is the applicant in the case, and it arises out of somewhat peculiar circumstances.

2. The plaintiff in the suit out of which this reference arose is one Sherlekar, and the defendant is one Agarwal. The plaintiff happens to be an Advocate. He instituted a suit in the Court of Civil Judge, Senior Division, Nagpur, being Suit No. 765 of 1964, against the defendant for some money due to him. The case was assigned by the Civil Judge, Senior Division, to the Fifth Joint Civil Judge, Junior Division. It appears that the Fifth Joint Civil Judge Mr. Pande, was deputed to Umrer Court for half a month every month, to perform his duties at Umrer. An office order was, therefore, made by the District Judge at Nagpur to the following effect:-

'ORDER

Dated 26th June 1964.

Since Mr. H. S. Pande, Fifth Joint Civil Judge, Junior Division, Nagpur, has been deputed to Umrer for the period from June 1964 as specified in Resolution No. A. 3906 (ii)/64, dated the 19th May 1964 of the High Court, Appellate Side, Bombay, Mr. M. V. Gorwadkar, Fourth Joint Civil Judge Junior Division, Nagpur, will remain in charge of the Court of the Fifth Joint Civil Judge, Junior Division, Nagpur and deal with the urgent, immediate and routine matters of that Court during the period of deputation of Mr. H. S. Pande.

Sd/-

S.N. Hadole,

District Judge, Nagpur.

3. In pursuance to this the plaintiff made two applications before the applicant Judge, one application for taking the case on file and another application for making a preliminary order under Order 38, Rule 1, of the Civil Procedure Code for attachment before judgment on the effects of the defendant. The applicant Judge made the following order:-

'This application be put up before the presiding officer as this Court cannot pass judicial orders in the case from the file of Fifth Joint Civil Judge'.

The plaintiff, on this order being made, approached the District Judge and the District Judge directed the Civil Judge to pass such judicial order as he though proper on the application in accordance with the administrative order of the District Judge, dated June, 26, 1964. The applicant Judge then made an order of attachment and at the same time made this reference to the High Court, contending that the administrative order of the District Judge, dated June 26, 1964, could not require him to pass judicial order an any of the matters pending before the Fifth Joint Civil Judge, and in any event, the District Judge had no authority to issue such order under the provisions of the Bombay Civil courts Act. The result of this attitude of the applicant Judge was that though he made the order of attachment before judgment, the attachment became valueless because of the delay in carrying out the order.

4. The question that falls to be decided is whether the District Judge had the powers to issue the office order of June 26, 1964, requiring the applicant Judge to discharge the function of the Fifth Joint civil Judge, during the absence of the latter.

5. Now, the scheme of the Civil Courts Act is to constitute the District Court as a principal court of original Civil jurisdiction, and similarly, a single Court of Civil Judge, Senior Division, at the district headquarters as a Civil Court of unlimited jurisdiction. In order to help the District Court in the transaction of its business power is given to the High Court to appoint Joint Judges as well as Assistant Judges. Similarly, to assist the Civil Judge, Senior, Division, power is given to the High Court to appoint Civil Judges attached to the same Court of varying jurisdictional powers. The High Court has been given power to appoint one or more Joint Judges from amongst the Subordinate Civil Judicial Service of the State. Sections 23 and 37, the two relevant sections, of the Act, are:

'23. The Civil Judges shall hold their Courts at such place or places as the State Government may from time to time appoint within the local limits of their respective jurisdiction:

Provided that for special reasons it shall be lawful for the State Government to order that a Civil Judge shall hold his Court at a place outside the local limits of his jurisdiction.

Wherever more than one such place is appointed, the District Judge shall, subject to the control of the High court, fix the days on which the Civil Judge shall hold his Court at each of such places and the Civil Judge shall cause such days to be duly notified throughout the local limits of his jurisdiction.

The same person may be the Judge of more than one subordinate Court and may dispose of the Civil business of any one of his Courts at the headquarters of any other of his courts; and in such cases the District Judge shall, subject to he control of the High Court, prescribe rules for regulating the time during which the Civil Judge shall sit in each Court.

For the purpose of assisting the Judge of any subordinate court in the disposal of the civil business on his file, the High Court may appoint to such Court from the members of the Subordinate Civil Judicial Service of the State one or more Joint Civil Judges, or the District Judge may, with the previous sanction of the High Court, depute to such Court the Judge of another subordinate Court within the district. A Civil Judge thus appointed or deputed to assist in the Court of another Civil Judge shall dispose of such civil business within the limits of his pecuniary jurisdiction as may, subject to the control of the District Judge, be referred to him by the Judge of such Court. He may also dispose of the civil business of his Court at the place of his deputation subject to the general or special orders of the High Court in this behalf.

For the purposes of this section, the provisions of the Act applicable to Judges shall be, and shall be deemed always to have been, applicable to Joint Civil Judges; Provided that no such Joint Civil Judge shall hear and determine any suit instituted under Section 4 of the Dekkhan Agriculturists' Relief Act, 1879, unless the value of the said suit falls within the limits of the pecuniary jurisdiction conferred on him by that Act'.

'37. In the event of the death, suspension or temporary absence of any Civil Judge, the District Judge may empower the Judge of any subordinate Court of the same district to perform the duties of the Judges of the vacated subordinate Court either at the place of such Court or of his own Court' but in every such case the registers and records of the two Courts shall be kept distinct'.

6. Now, the scheme of Section 23 by Clause (3) does contemplate more than one place being appointed for discharging the functions of a Court and the District Judge is empowered to fix the days on which the Civil Judge shall hold his meeting at each of the places. Clause (4) empowers the same person to be a Judge of more than one subordinate Court and entitles him to dispose of the business of the other Court at the headquarters of any of the Courts. Clause (5) relates, as stated earlier, to the power of the High Court to appoint one or more Judges from the Subordinate Civil Judicial Service to assist the Civil Judge. A Judge appointed to assist the Court has to dispose of such Civil business within the limits of its pecuniary jurisdiction as may be referred to him by the Judge of such Court. Mr. Chandurkar says that possibly the power of the District Judge to direct another Judge to take up to work of the Judge who is deputed to another place can be derived from the fact that the Joint Civil Judge has to dispose of such civil Judge, 'subject to the control of the District Judge'. (Underlining (herein ' ') is by us.) According to him, it may also mean that the control can be exercised from time to time whenever occasion arises, and if this is so, the District Judge would be competent to pass the officer order dated June 26, 1964, directing the applicant Judge to dispose of urgent matter on the file of the Fifth Joint Subordinate Judge that may be brought before him. As we are clear that Section 37vests in the District Judge the power, sought for, it is not necessary to consider this part of the contention raised by the learned Government Pleader.

7. We have already quoted the section above. In the marginal note of Section 37 the words 'Temporary vacancy of office of Subordinate Judge' occur and it appears that the applicant Judge has laid very much stress on the marginal note and attempted to point out that the temporary absence of a Judge referred to in the section must be such as would create a vacancy, though temporary, in the office of the Judge. He says unless the absence is of such a nature that it creates a vacancy , the District Judge has no right to make the order contested. In our view the marginal note cannot limit in any manner the meaning of the plain words of the section. The section clearly contemplates the event of death, suspension or temporary absence of a Civil Judge. Temporary absence must mean absence from Court and need not be such as to create a vacancy as such in the office as by death or suspension. Again, he lays emphasis on the words 'to perform the duties of the Judge of the vacated subordinate Court'. Merely because the word 'vacated' is used, it cannot mean that the office must become vacant in which event alone the District Judge is entitled to make the order. Apart from this the words 'vacancy' in the marginal note and 'vacated' in the later part of the section are not terms of art. They must have their ordinary meaning that the officer is not on duty. In this connection it must be remembered that a statutory enactment cannot be read in isolation. It is well regarded that a word may have a narrow meaning or a larger meaning depending upon the context in which the word is used, and also depending upon the other provisions of the Act. Very often a word may take colour from the other portions of the Act and carry a larger meaning than it may ordinarily be capable of bearing. It is, therefore, said that in order to find out the intention of the Legislature the Court must look to every component part of the enactment, its object and the mischief it was intended to prevent. As we have seen, section 23 contemplates a Civil Judge of one place exercising powers at another place. No doubt, he is given the power to exercise his function of one Court at another place where he is siting. But even so, the section does contemplate the absence of a Judge from the headquarters during his deputation to another Court. The term 'vacated' cannot be read in the narrow sense of a post which is vacated either by reason of death, suspension or leave. It must carry the ordinary meaning and that is, temporary absence of the Civil Judge as mentioned in the opening part of the section. To give another meaning to the term would create many complications and unnecessary waste of time of the parties who may have to travel long distances to obtain any urgent orders. This could hardly have been contemplated by the Legislature when it specifically used the words 'temporary absence of any Judge'. We have, therefore, no doubt that the District Judge was empowered under Section 37 to make the office order dated June 26, 1964, during the absence on deputation of Mr. Pande, the Joint Civil Judge of the Fifth Court'.

The terms of the order leave no doubt that he was to be in charge of the Court and had to take urgent judicial work also of Fifth Court.

8. The applicant Judge has also raised a contention that the second direction which the District Judge gave as the order has been signed by the clerk in the name of the District Judge, it must be regarded as the order of the District Judge. Undoubtedly, the order is curt, but having regard to the attitude taken up by the applicant, nothing can be said about it.

9. The applicant Judge also seems to contend that inasmuch as his Court is different from that of the Fifth Joint Judge and unless an order of transfer under Section 24, Civil Procedure Code, is made, he cannot deal with the suit. The applicant overlooks the fact that under the provisions of the Bombay Civil Courts Act there is only one Court of the Civil Judge, and all other Judges are attached to that Court to assist the Civil Judge's Court. It is indeed true that, once an order assigning a suit is made by the Civil Judge himself, the Civil Judge has no right to withdraw that suit from his file as decided by this Court in Ajam Ibrahim Modan v. Bai Hava Bibi, 41 Bom LR 892=AIR 1939 Bom 485. Even so, as it is not a different Court by only a part of the same Court, it is impossible to sustain the contention that an order for transfer from one Civil Judge to another under Section 24 of the Civil Procedure Code is required to be made by the District Court or by the High Court, in cases governed by Section 37 of the Civil Courts Act. The District Judge's power under that Section is distinct from that under Section 24 of the Civil Procedure Code, and intended to avoid inconvenience to litigants. The District Judge is, therefore, entitled to require the applicant Judge to perform the functions of the absent Judge in the circumstances referred to in the order of June 26, 1964.

10. Before parting with the case, we cannot but observe that the attitude adopted by the applicant Judge is wholly unwarranted. A reference under the provisions of Order 46, Civil Procedure Code, is not to be made because a Judge thinks that a certain direction by the District Judge or by the High Court is wrong. If any consequences of want of jurisdiction flow from some such illegal direction, a party may as well raise the point at the appellate stage or in any other proper proceedings before the Courts. A reference is to be made only when an important issue of law arises in the suit. This is something which has to do with the merits of the suit. It is wrong for any Judge to take up a contentions attitude and adopt the role of a litigant. The net result of the applicant Judge's attitude has been to deprive the plaintiff of the fruit of his attachment order which could not be effectively executed because of this unwarranted reference.

11. The plaintiff has appeared in the case to resist the reference. We direct the applicant Judge to personally pay the costs of the plaintiff's counsel.

12. The reference is rejected.

13. Reference rejected.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //