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Dhoribhai Dadabhai Patel Vs. Pragdasji Bhagwandasji Mahant - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Civil Revision Application No. 418 of 1933
Judge
Reported inAIR1935Bom172; (1935)37BOMLR120; 157Ind.Cas.1086
AppellantDhoribhai Dadabhai Patel
RespondentPragdasji Bhagwandasji Mahant
Excerpt:
.....the district judge had no power to transfer, under section 24 of the civil procedure code, the suit instituted under section 92 of the code, and that the notification, as it stood, referred only to suits which might be instituted after its date and did not include suits which had already been instituted, and, therefore, the first class subordinate judge was not authorised to hear the suit.;per beaumont c.j. ' where an act of parliament or other instrument confers power to authorize some act, the instrument which exercises the power should be expressed in language following as far as possible the language of the act or instrument which creates the power.';'the notification does not deal, as it should, with the institution of suits, but merely with the hearing of suits properly..........the local government, under the section upon a particular court, it would seem to me clear that a suit instituted in the district court as the principal civil court of original jurisdiction cannot be transferred by the district judge to one of his subordinate judges. section 24 of the code provides that the high court or the district court may transfer any suit pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the: same. apart from section 92, any second class subordinate judge in the kaira district would be competent to try this suit, but to hold that the district: judge has power to transfer a suit which under section 92 must be instituted in his court to any second class subordinate judge would defeat one of the purposes of the.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a revision application which raises the question whether the transfer of a suit made by the District Judge of Kaira to the Court of the First Class Subordinate Judge at Nadiad is valid.

2. The suit in question was instituted in 1928, and it is a suit relating to a scheme for a charity, a class of suits which falls within Section 92 of the Civil Procedure Code. The suit was instituted in the District Court of Kaira, the subject-matter of the suit arising in the village of Sarsa which is within the Kaira District. The claim was valued at Rs. 20. Issues were framed, and on July 28, 1933, the District Judge transferred the suit to the Court of the First Class Subordinate Judge, and the question is whether that transfer is legal.

3. Now, Section 92 provides that in cases falling within that section, a person may on the conditions specified institute a suit for specified relief in the principal civil Court of original jurisdiction, or in any other Court empowered in that behalf by the Local Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate. Apart from any express power conferred by the Local Government, under the section upon a particular Court, it would seem to me clear that a suit instituted in the District Court as the principal civil Court of original jurisdiction cannot be transferred by the District Judge to one of his Subordinate Judges. Section 24 of the Code provides that the High Court or the District Court may transfer any suit pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the: same. Apart from Section 92, any Second Class Subordinate Judge in the Kaira District would be competent to try this suit, but to hold that the District: Judge has power to transfer a suit which under Section 92 must be instituted in his Court to any Second Class Subordinate Judge would defeat one of the purposes of the section. It is clear that the Legislature for some reason considered that in suits of this particular nature the Court trying them should be of a certain status, and the object of the section would be destroyed if the general powers of transfer under Section 24 applied to suits instituted under Section 92. In my opinion, therefore, the First Class Subordinate Judge is not competent to try this suit unless it can be shown that he was empowered to do so by the Local Government under Section 92.

4. Now, it appears that on July 20, 1933, i.e., before the date of the transfer which was on July 28, a notification was published in the Bombay Government Gazette in the following terms :-

In exercise of the powers conferred by sub-section (1) of Section 92 of the Code of Civil Procedure, 1908, the Governor in Council is pleased to empower Mr. T. N. Desai, Officiating First Class Subordinate Judge, Nadiad, to hear suits which may be instituted for any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust.

5. All the words of the notification occurring after the words 'to hear suit' are descriptive of the suits referred to, and the notification may be paraphrased by saying that the Government empowers Mr. T. N. Desai, Officiating First Class Subordinate Judge, Nadiad, to hear suits covered by Section 92 of the Code. Now, I venture to think that it is a sound, and, I would even say, a golden rule of drafting that where an Act of Parliament or other instrument confers power to authorize some act, the instrument which exercises the power should be expressed in language following as far as possible the language of the Act or instrument which creates the power. Section 92 authorizes the Local Government to empower the institution of a suit falling within Section 92 in the Court of the First Class Subordinate Judge of Nadiad, if the whole or any part of the subject-matter is situate within the local limits of that Court's jurisdiction. But when one looks at the language of the notification which exercises the authority, it bears in its operative part no relationship to the language of Section 92 which creates the authority. The notification does not deal with the institution of suits ; it deals with the hearing of suits which may be instituted ; nor is there any limit in the notification upon the local jurisdiction of Mr. Desai, who is empowered to hear the suits. If the notification is construed literally, it authorizes or purports to authorize Mr. Desai to hear any suit falling within Section 92 which may be instituted, which must mean properly instituted, in any place. My own view is that the notification does not deal, as it should, with the institution of suits, but merely with the hearing of suits properly instituted, and is ultra vires and has no effect under Section 92.

6. But it is not essential for the purpose of this case to go as far as that, because I am of opinion that even if the notification be given effect to according to its terms, it only purports to authorize Mr. Desai to hear suits which may be instituted, and this suit had already been instituted before the notification. Upon any construction the notification does not, in my opinion, authorize Mr. Desai to hear suits which had already been instituted. Therefore, it seems to me that the notification cannot be relied upon as a justification for the transfer of the suit in this case. As I have already said, apart from the notification, I think the District Judge had no power to transfer the suit.

7. That being so, the rule must be made absolute with costs and the transfer of the suit set aside.

Divatia, J.

8. I agree that the rule should be made absolute on the ground that the notification refers only to the hearing of suits that may be instituted. In this case the suit has been instituted in 1928 and the notification is issued in July, 1933. So, on the date of the notification the suit was already instituted in the Court of the District Judge of Kaira. Section 92 refers to institution of suits, but the notification empowers Mr. T. N. Desai, Officiating First Class Subordinate Judge, Nadiad, to hear suits that may be instituted. Therefore, this notification would not, in my opinion, apply to those suits which have been already instituted before the date of the notification and the District Judge would have no power to transfer such a suit to Mr. Desai's Court under Section 24 of the Civil Procedure Code. That transfer being void, Mr. Desai would have no power to go on with the suit.


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