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Parvatibai Utamlal Vani Vs. Rupa Keshav Tamboli - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberCivil Revision Application Nos. 340 of 1943 and 432 of 1945
Judge
Reported in(1947)49BOMLR658
AppellantParvatibai Utamlal Vani
RespondentRupa Keshav Tamboli
Excerpt:
bombay tenancy act (bom. xxix of 1939), section 24-civil procedure code (act v of 1908), section 115-order made by collector under section 24 of tenancy act-whether such order subject to revisional jurisdiction of high court.;an order made by the collector under section 24 of the bombay tenancy act, 1939, is not subject to the revisional jurisdiction of the high court under section 115 of the civil procedure code, 1908. - - if we were to hold that principle applied to the present case, this court would clearly have no jurisdiction. under section 622 of act x of 1877 the high court was empowered to call for the record of 'any case' in which no appeal lay to the high court if the court which had decided the case appeared to have exercised a jurisdiction not vested in it by law, or to have.....sen, j.1. the following question has been referred to this bench:-whether an order made by the collector under section 24 of the bombay tenancy act, 1939), is subject to the revisional jurisdiction of this court?2. weston j., who has referred this question, has expressed the following opinions. (1) the mamlatdar and collector, when administering the act, are courts within the definition of the indian evidence act, and the mamlatdar when acting' under section 12 of the bombay tenancy act for the determination of the reasonable rent is a revenue court within the definition of section 5(2) of the code of civil procedure. (2) there seems to be some distinction as regards the appellate authority between section 12 of the act, under which appeals lie to a civil judge, on the one hand and on the.....
Judgment:

Sen, J.

1. The following question has been referred to this bench:-

Whether an order made by the Collector under Section 24 of the Bombay Tenancy Act, 1939), is subject to the revisional jurisdiction of this Court?

2. Weston J., who has referred this question, has expressed the following opinions. (1) The Mamlatdar and Collector, when administering the Act, are Courts within the definition of the Indian Evidence Act, and the Mamlatdar when acting' under Section 12 of the Bombay Tenancy Act for the determination of the reasonable rent is a revenue Court within the definition of Section 5(2) of the Code of Civil Procedure. (2) There seems to be some distinction as regards the appellate authority between Section 12 of the Act, under which appeals lie to a Civil Judge, on the one hand and on the other hand Sections 13, 19 and 24, under which appeals lie to the Collector; but that of itself does not make much difference in view of the decision in Purshottam Janardan v. Mahadu Pandu 14 Bom. L.R. 947 where it was held that the Collector when exercising a judicial function is subject to the superintendence and control of the High Court and is, therefore, a Court subordinate to the High Court. (3) But for the provisions of Section 28 of the Tenancy Act he would be prepared to extend the power of revision of this Court which may be said (on the analogy of the decisions under the Mamlatdars' Courts Act) to exist in respect of orders made under Section 12 of the Bombay Tenancy Act to decisions made under Sections 13, 19 and 24 of the said Act. Section 28 of the Act is in these terms:

Except in cases provided in Section 12, in all matters connected with this Act, the Provincial Government shall have and exercise the same authority and control over the Collectors and Mamlatdars as they have and exercise over them in the general and revenue administration.

2. No doubt the Legislature has deliberately drawn a distinction between questions to be determined under Section 12 of the Act by the Mamlatdar, appeals from whose decisions under that section lie to a Civil Judge, and questions to be determined under Sections 13, 19 and 24 by the Mamlatdar, appeals from whose decisions under those sections lie to the Collector; and this distinction again appears in Section 28 of the Act. The provision in Sub-section (5) of Sections 13, 19 and 24 that the orders passed by the Mamlatdar and the Collector shall be deemed to be decrees of a civil Court and shall be executable as such has, in my opinion, reference merely to the manner in which such orders are to be carried out or given effect to and not to the question under consideration. In Bhaishankar v. The Municipal Corporation of Bombay 9 Bom. L.R. 417 which was a case arising under the City of Bombay Municipal Act, 1888, it was held that where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. If we were to hold that principle applied to the present case, this Court would clearly have no jurisdiction. But there are a large number of decisions of this Court and other High Courts in which the view has been taken that decisions affecting civil rights by Courts or authorities which are not subject to the Code of Civil Procedure, are subject to the revisional jurisdiction of the High Court. Those decisions raise the question whether by analogy a similar jurisdiction may not exist in this Court in the present case, in spite of Section 28 of the Bombay Tenancy Act. In the earliest of the cases arising out of the Mamlatdars' Courts Act, Mahadaji Govind v. Sonu bin Davlata (1872) 9 B.H.C.R. 249 this Court, after holding that the Mamlatdars' Courts constituted under Bombay Act V of 1864 were subordinate civil Courts within the meaning of Section 5 of Regulation II of 1827, took the view that the High Court had the power, in exercise of its extraordinary jurisdiction, to set aside an order made by a Mamlatdar under the said Act. Though that Act conferred upon the Mamlatdars' Courts new jurisdiction, it expressly declared them to be Courts which were referred to in Regulation VI of 1830, which Regulation provided that an appeal should lie from the decisions of those Courts to the Collector or Sub-Collector, and from that officer to the Sudder Dewanee Adawlut, whose powers had been transferred to the High Court. In Bai Jamna v. Bai Jadav I.L.R(1879) . 4 Bom. 168. it was held that the effect of Bombay Act III of 1876, under which the Mamlatdars' Courts had been reconstituted, was not to divest the High Court of the power of superintendence and revision which, as held in Mahadaji's case, it could exercise over such Courts prior to the passing of that Act (p. 170):-

If we had more doubt than we have on this question, it would be removed by the consideration of the very great improbability that the Legislature, in giving largely increased powers to the Mamlatdars' Courts, would at the same time have exempted them from all supervision and control.

Mahadaji's case was decided at a time when the procedure of civil Courts was regulated by Act VIII of 1859, under Section 3 of which all revisions of the judgments of the civil Courts were barred otherwise than by those Courts and by the constituted Courts of appellate jurisdiction. When Bai Jamna's case was decided by this Court, Act X of 1877 had come into force; and Section 622 of the said Act corresponded mainly to Section 115 of the present Code. Yet in neither of the two cases recourse was had to the ordinary revisional powers of the High Court. In Purshottam Janardan v. Mahadu Pandu, however, it was held that the Collector acting under the Mamlatdars' Courts Act was a Court and as such surbordinate to the High Court within the meaning of Section 115 of the Civil Procedure Code. This was because under Section 23(3) of that Act it is provided that where the Collector takes any proceedings under the Act he shall be deemed to be a Court under the Act and because of the ruling in The Collector of Thana v. Bhaskar Mahadev Sheth I.L.R.(1884) 8 Bom. 264 that being a case under the Bombay Hereditary Offices Act III of 1874, that the Collector when exercising judicial functions is subject to the superintendence and control of the High Court. In Bhaskar Mahadev's case it was said that the statute constituting this High Court and the Letters Patent gave to the Court such jurisdiction as was possessed by the Supreme and Sudder Courts together with a general power of appeal and superintendence over the Civil Courts of the Presidency of Bombay (Letters Patent Clause 16, statute 24 & 25 Vic. c. 104, Sections 9 and 15), and that any Act, therefore, of the local Legislature which should propose to cut down this jurisdiction would so far be ultra vires and inoperative.

3. In the present case reliance is placed not only on Section 115 of the Civil Procedure Code but on the powers of this Court as given by Regulation II of 1827, Section 5 (preserved by the repealing Act XII of 1873) and also on the general powers of superintendence of the Sudder Dewanee Adawlut. (See Shiva Nathaji v. Joma Kashinath I.L.R.(1883) 7 Bom. 341 . By the Indian High Courts Act, 1861 (24 & 25 Vic. c. 104, Section 9) the jurisdiction originally granted to the Sudder Dewanee Adawlut and the Supreme Court was vested in the High Court that was constituted in 1861; and that jurisdiction has been preserved by the Indian High Courts Act (28 & 29 Vic. c. 15), the Government of India Act, 1915 (Section 106) and the Government of India Act, 1935 (Section 223).

4. In the present case the Bombay Tenancy Act nowhere states that the Collector is or shall be deemed to be a Court. There is no doubt that a decision under Section 24 of the Act is a decision regarding or affecting civil rights of the parties and as such is a judicial decision, and in so far the authority or authorities concerned may be said in a broad sense to be a Court or Courts. A Court has been defined in Section 3 of the Indian Evidence Act as including all Judges and Magistrates 'or persons except arbitrators legally authorised to take evidence'; but, as held in Queen-Empress v. Tulja I.L.R(1887) . 12 Bom. 36 that definition is obviously framed only for the purposes of the Act itself, and should not be extended beyond its legitimate scope. A revenue Court has been defined in Section 5(2) of the Civil Procedure Code as meaning a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or the profits of land used for agricultural purposes, but as not including civil Courts having original jurisdiction under the Code to try such suits or proceedings as being suits or proceedings of a civil nature. Under this definition an authority acting under Section 24 of the Bombay Tenancy Act which deals with the powers of the Mamlatdar and the Collector to make an order on an application made by a person 'entitled to possession of any land or dwelling house under any of the provisions of the Act' would not be a revenue Court; but even holding that the said authority in such a case is a civil Court, it seems to me doubtful whether such a Court can be said to be a Court subordinate to the High Court within the meaning of Section 115 of the Civil Procedure Code.

5. The history of the High Court's statutory powers of revision appears to be as follows. Under Section 372 of Act VIII of 1859 a 'special appeal' lay (unless otherwise provided by any law for the time being in force) to the Sudder Court from all decisions passed in regular appeal by the Courts subordinate to the Sudder Court, on the ground of the decision being contrary to some law, or usage having the force of law, or of a substantial error or defect in law in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits, and on no other ground. Under Section 3 of the said Act all revision of 'the judgments of the Civil Courts' was barred otherwise than by those Courts and by the constituted Courts of appellate jurisdiction. Under Section 1 of the said Act all suits of a civil nature, with the exception of suits of which their cognizance was barred by any Act of Parliament, or by any Regulation of the Codes of Bengal, Madras and Bombay or by any Act of the Governor-General-in-Council were cognizable by the Civil Courts. What were the Civil Courts within the meaning of Sections 1 and 3 was nowhere defined, but they would, I think, prima facie be the Courts to which the provisions of Act VIII of 1859 applied. Under Section 35 of Act XXIII of 1865 it was provided that the Sudder Court might call for the record of any case decided on appeal by any subordinate Court in which no further appeal lay to the Sudder Court if such subordinate Court appeared to have exercised jurisdiction not vested in it in law and the Sudder Court was empowered to set aside the decision passed on appeal in such a case by the subordinate Court or to pass such other orders in the case as the Sudder Court might think fit. Under Section 622 of Act X of 1877 the High Court was empowered to call for the record of 'any case' in which no appeal lay to the High Court if the Court which had decided the case appeared to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, and the High Court in such a case might pass such order as it thought fit. Section II of the said Code provided that the Courts (subject to the provisions therein contained) had jurisdiction to try all suits of a civil nature except suits of which the cognizance was barred by any enactment for the time being in force. The corresponding sections, in the next Civil Procedure Code (Act XIV of 1882) were also Sections 622 and 11, the only difference in Section 622 of the later Code being that the words 'or to have acted in the exercise of its jurisdiction illegally or with material irregularity' were added therein. Both the Codes of 1877 and 1882 used the words 'record of any case' without reference to the question of the Court deciding the case being subordinate to the High Court. Then came the present Civil Procedure Code of 1908, Section 115 of which substantially reproduces the provisions of Section 622 of the Code of 1882; and Section 9 of the present Code corresponds to Section 11 of the earlier Codes. In Section 115 of the present Code, however, the words 'record of any case' are qualified by the words 'which has been decided in any Court subordinate to such High Court,' thus reverting to the phraseology of Act XXIII of 1861.

6. On the question of the meaning of the word 'subordinate' as used in Section 115, the number of reported cases, as remarked by Meredith J. in Arjun Rautara v. Maharaja Krishna Chandra Gajapati Narayan Deo I.L.R.(1941) Pat. 1 is legion and it would be profitless to examine them all. Section 3 of the Civil Procedure Code is to the effect that for the purposes of the Code the District Court is subordinate to the High Court, and every civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court; but the enumeration of subordinate Courts in this section has been held to be not exhaustive in Purshottam Janardhan v. Mahadu Pandu. In Balkrishna Daji v. The Collector, Bombay Suburban 25 Bom. L.R. 398 Macleod C.J. remarked, in view of the language of Section 107 of the Government of India Act, 1915, that in the absence of any statutory direction to the contrary, unless the High Court had appellate jurisdiction over a Court, that Court would not be subordinate to the High Court. That view has clearly not been acted upon as there are numerous instances in which even in the absence of appellate jurisdiction in the High Court, a Court has been held to be subordinate to the High Court within the meaning of Section 115 of the Code. In Chitaley's Civil Procedure Code, 4th edition, at page 1086, it has been stated that under the Rent Acts of the various Provinces, the right of revision to the High Court has been either expressly or impliedly excluded; and a long list of cases in support of this statement is to be found at pages 1086 and 1087. Mr. Patel, however, on behalf of the applicant has relied in this connection on certain observations of the Privy Council in Rajah Nilmoni Singh Deo Bahadoor v. Taranath Mookerje where their Lordships held that the Rent Courts established by Act X of 1859 were civil Courts within the meaning of Act VIII of 1859, and that under Section 284 of the latter Act the Collector could transfer his rent decrees for execution into another district. Referring to certain sections in Act X of 1859 their Lordships observed (p, 178):-

It must be allowed that in those sections there is a certain distinction between the Civil Courts there spoken of and the Rent Courts established by the Act, and that the Civil Courts referred to in Section 77 and the kindred sections mean Civil Courts exercising all the powers of Civil Courts, as distinguished from the Rent Courts which only exercise powers over suits of a limited class. In that sense there is a distinction between the terms; but it is entirely another question whether the Rent Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons seeking their civil rights, and whether being a Civil Court in that sense, it does not fall within the provisions of Act VIII of 1859.

This case was followed by a full bench of the Allahabad High Court in Madho Prakash Singh v. Murli ManoharI.L.R. (1883) All. 406, F.B . where it was held that Courts of Revenue in the North Western Province, in those matters of procedure upon which the Rent Act of those Provinces (Act XII of 1881) was silent, were governed by the provisions of the Civil Procedure Code. Stuart C.J., however, dissented from the opinion of the majority of the Judges and he held that in view of the definitions of the words 'District Court,' 'Collector,' 'decree' and 'order' under Section 2 of the Code of 1882, the expressions 'Civil Court' or 'Court of Civil Judicature' were to be interpreted in a limited and technical sense, as only the civil Courts to which the Code of Civil Procedure applied as the law of procedure by which they were governed or bound, and that Revenue Courts did not fall within that description. In the full bench case of Arjun Rautura v. Maharaja Krishna Chandra Gajapati Narayan Deo Meredith J. adopted the view taken in Rajah Nilmoni Singh Deo Bahadoor v. Taranath Mookerjee, while Dhavle J. thought that the civil Courts contemplated in Section 3 were, to use the words of Rankin J. in Allen Bros, and Co. v. Bando & Co. I.L.R(1922) . Cal. 931 civil Courts exercising all the powers of civil Courts as distinguished from Courts which only exercised powers over civil matters of a special class or classes, e.g. the Rent Courts under Act X of 1859 and the Land Acquisition Judge. The third Judge, Manohar Lall J., thought that the concluding words in Section 5, Sub-clause (2), of the Civil Procedure Code, 'but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature,' suggested that the draftsman had in view the observations of Lord Hobhouse in Rajah Nilmoni Singh Deo Bahadoor v. Taranath Mookerjee, which I have referred to and that, therefore, the Courts which tried the cases or heard appeals under the Orissa Tenancy Act were revenue Courts and not civil Courts, even though they might try suits of a civil nature. In that case, which arose under the Orissa Tenancy Act, 1913, all the Judges, however, held that the High Court under Section 115 of the Civil Procedure Code had jurisdiction to revise the decision of the Collector in a suit under the said Act wherein the Collector had usurped to himself the appellate powers confered upon the District Judge under the Act.

3. In Allen Bros. & Co. v. Bando & Co., Rankin J. pointed out that though not defined, the word 'subordinate' plays an important part in the Code, as may be seen from Sections 23, 24, 100, 115, 133, 136 and 137, and that there are also in the Code several phrases that may be usefully contrasted and compared, thus:-Court of a grade inferior (Section 3); Court of the highest grade (Section 63); any Court (Section 118); civil Courts subject to their superintendence (Section 122); any Court of civil jurisdiction (Section 141). His Lordship held that the words 'Civil Court' in the Code appeared to have a special meaning, though this again was nowhere defined (p. 939):-

I take them to mean Civil Courts exercising all the powers of Civil Courts as distinguished from Courts which only exercise powers over civil matters of a special class or classes, e.g., the Rent Courts under Act X of 1859 and the Land Acquisition Judge. The two broadest phrases in the Code are to be found in Sections 113 and 141. The latter in noway touches upon the question of subordination; the former does, because reference is a form of appellate jurisdiction [Birendra Kishore Manikya v. Secretary of State for India (1920) I.L.R. 48 Cal. 766], but Order XLVI cuts down its application and it does not apply to the Rent Controller or the President. It may be argued that the High Court has superintendence over 'any Court' because it has power to alter the order and so to give a power of reference to 'any Court.' Beyond this argument, which in reference to special statutory Courts unknown to the Code seems very precarious, I can see nothing in the Code which even promises to be of any assistance on the present question unless it be that a comparison between Sections 23 and 24 appears to show that a Court may be subordinate within the meaning of the Code in a purely administrative sense.

Rankin J. also negatived the contention that all other Courts of civil jurisdiction are subordinate to the High Court and under its appellate jurisdiction in a wide sense unless the Legislature expressly provided to the contrary, and said (p. 940):-

As a general proposition applicable to Bengal it seems to me that on the face of the Act of 1861 and the Letters Patent no proposition so simple and wide can possibly be correct. It is nowhere expressed and the several jurisdictions carefully defined and conferred are not to be extended or enlarged indefinitely upon general principles to the rigour of which His Majesty is in no way committed. The simple proposition is always tempting, yet I know of no case decided on this simple principle. In many of the decided cases it would have been a complete answer to the problem, yet the Courts have made heavy weather before arriving at another answer.

4. What meaning, then, should be given to the word 'subordinate' as used in Section 115 of the Code of Civil Procedure With respect I am in agreement with Rankin J's. view in Allen Bros & Co. v. Bando & Co. to the extent of holding that primarily the Courts intended are the civil Courts exercising their powers under the Code. It also seems to me that it is open to the Legislature to say by express provision, or to intend by manifest implication, that the decision of a special Court on a civil question should be subject to the revisional jurisdiction of the High Court. I should see no difficulty in such a case in holding such special Court to be subordinate to this Court within the meaning of Section 115. In this connection the following observations of Rankin J. appear to me to be important (p. 946):-.it is not enough for the purposes of the Code or the Letters Patent which deal on definite principles with a regular order of Courts, that from the limited nature of the powers conferred or from a mere comparison with other Courts; or from possible relationships thereto not yet subsisting, a new Court may be styled an 'inferior Court.' An actual relationship to this Court must be established; an existing thread of connecting authority must be disclosed.

Where such a relationship between the Court in question and the High Court is established, such Court would in my opinion be deemed to be a subordinate Court for the purposes of Section 115. Taking now the provisions of the Bombay Tenancy Act relevant to the question referred to us, the provision in Section 28 that 'in all matters connected with the Act, the Provincial Government shall have and exercise the same authority and control over the Collectors and Mamlatdars as they have and exercise over them in the general and revenue administration' clearly indicates, in my opinion, that an order made by the Collector under Section 24 of the said Act is subject to the revisional jurisdiction not of this Court but of the Provincial Government. It seems to me that on this point the principle of Mancherji Hormusji v. Thakurdas (1905) 7 Bom. L.R. 682 will apply. There an appeal was preferred to this Court against the order of the Collector in certain execution proceedings transferred under Section 320 of the Civil Procedure Code, which provided for an appeal from the order of the Collector to such authority as the Local Government might by rules prescribe. In view of Section 203 of the Land Revenue Code which provides that in the absence of express provisions to the contrary all appeals under any law for the time being in force shall lie from any decision or order passed by a revenue officer to that officer's immediate superior, etc., it was held that the High Court was unable to exercise an appellate jurisdiction which by law had been vested in the Revenue Commissioner or Government. Though Section 12 of the Bombay Tenancy Act lays down that when the Mamlatdar makes a decision under that section a party aggrieved by such decision may file an appeal before a civil Judge, it is clear that the Legislature has deliberately not laid down a similar procedure in respect of an order made by the Collector under Section 24 of the Act. It is, therefore, not possible to say that any 'actual relationship' or 'an existing thread of connecting authority' (to use the words used by Rankin J. in the case of Allen Bros & Co. v. Bando & Co.) is disclosed to exist between the Collector and the High Court; There is, therefore, no revisional jurisdiction in this Court in such a case under Section 115 of the Civil Procedure Code.

5. Recourse has sometimes been had to Section 107 of the Government of India Act, 1915, for inferring the subordination of certain Courts in decisions prior to the passing of the Government of India Act, 1935. The opening words of that section were: 'Each of the High Courts has superintendence over all Courts for the time being subject to its appellate jurisdiction'; these words being taken from Section 15 of the Charter Act, 24 & 25 Vic. c. 104. In Sholapur Municipality v. Tuljaram : (1931)33BOMLR1067 it was held that the power of superintendence included the power of revision. In H.D. Chatterjee v. L.B. Tribedi I.L.R. (1921) Cal. 528 the Calcutta High Court held that it had the power of revision under its general powers of superintendence over the Rent Controllers' Courts constituted under the Calcutta Rent Act (Beng. III of 1920) under Section 107 of the Government of India Act, 1915. In Sholapur Municipality v. Tuljaram this Court held that a District Court, exercising judicial functions under the procedure laid down in the Land Acquisition Act according to Section 198 of the Bombay Municipal Boroughs Act, 1925, was a subordinate Court under Section 107 of the Government of India Act if not under Section 115 of the Civil Procedure Code, 1908. In Emperor v. Balkrishna Phansalkar (1932) 84 Bom. L.R. 1523 . it was held that the rights of superintendence which the High Court possessed under Section 107 of the Government of India Act, 1915, included not only superintendence in administrative matters, but superintendence on the judicial side also. Section 224 of the Government of India Act, 1985, however, in reproducing Section 107 of the earlier Act includes a new clause showing that the superintendence contemplated therein is administrative merely. Sub-section (2) of that section now leaves the High Court without any jurisdiction, under its powers of superintendence over Courts subject to its appellate jurisdiction, to question any judgment of any inferior Court which is not otherwise subject to appeal or revision (per Dhavle J. at page 53 and Manohar Lall J. at page 80 in I.L.R. 21 Pat. 1, Arjun Rautara v. Maharaja Krishna Chandra Gajpati Narayan Deo). In Ryots of Garabandho v. Zemindar of Parlakimedi 47 Bom. L.R. 525 their Lordships of the Privy Council have held that the power of superintendence given by Section 15 of the Indian High Courts Act, 1861, and afterwards by Section 107 of the Government of India Act, 1915, does not include a right of control over individuals or official bodies exercising judicial functions, such as Boards of Revenue, similar to that exercised in England by writ of certiorari (pages 166 and 167). It would thus appear that even under the old Section 107, the High Court could not have exercised the power of superintendence in the present case.

6. In Clause 13 of the Letters Patent of 1865, the expression, 'Any Court...subject to its (High Court's) superintendence' is used; and in Municipal Officer, Aden v. Hajee Ismail Hajee Allana 8 Bom. L.R. 4 Lord Macnaghten, dealing with a ease in the Court of the Resident at Aden as constituted by Act II of 1864, held that the preamble of the said Act showed that it was thought expedient to provide for the superintendence or revision of judgments and proceedings of the said Court; and it was pointed out that Clause 13 makes superintendence, not appellate jurisdiction, the condition of the exercise of the power given to the High Court. It has been contended by Mr. Patel on behalf of the applicant that this power of general superintendence exists in the High Court as the supreme Court of Judicature in the Province and that all other Courts of civil jurisdiction are subject to this power unless the Legislature has expressly provided to the contrary, As I have already pointed out, this argument was negatived by Rankin J. in Allen Bros. & Co. v. Bando & Co.

7. Mr. Patel, however, has particularly relied in this connection on the full bench decision of our own High Court in Shiva Nathaji v. Joma Kashinath I.L.R(1883). 7 Bom. 341.. That case purports to follow the decision in Mahadaji Govind v. Sonu bin Davlata, where Sargent C.J. held that the extraordinary jurisdiction of this Court (as distinct from its general power of superintendence vested in it by Section 15 of the High Courts Act, 1861, 24 & 25 Vic. c. 104) was derived from Clause 2 of Section 5 of Regulation II of 1827, which was as follows:-

It shall be competent to the said Court (the Sudder Dewanee Adawlut) to call for the proceedings of any subordinate civil Court and to issue such orders thereon as the case may require.

8. Their Lordships observed (and the following words have been particularly relied On (p. 349)):-

The words of the law impose no limit on the exercise of the power; but the Court has, in its discretion, consistently refused to exercise its extraordinary jurisdiction, except in cases which disclose some grave and patent error not otherwise to be remedied.

9. After the examination of several cases, West J., who gave the judgment, said (p. 357):-

It is not easy, if possible, to reduce this series of decisions to consistent results. It comes out, however, that the High Court will interfere to enforce the exercise of jurisdiction, or to restrain an excess of jurisdiction, in cases apparently calling for such interference, even though there may be a remedy by suit.

It was found that the High Court appeared to have interfered more freely in recent years in cases in which there had been some palpable perversion of the law or what prima facie seemed to be such a perversion, and it was pointed out that this extension of the Court's powers, or rather of the definition of the proper limits of the exercise of its powers as they were formerly understood, had accompanied a development of the jurisdiction as conferred by the Code of Civil Procedure. Thereafter the law obtaining in the Courts of England on the analogous point was examined by reference to a large number of cases and reference was made to the fact that the Court of Queen's Bench had jurisdiction over 'all errors in fact or in law upon judgments by any other Court,' and 'to correct and reform all errors and misdemeanours extra judicial which tend to oppression of the subject' (Co. 4 Inst., 71). Reference was next made to Section 45 of the Specific Relief Act I of 1877 and the provisions of that section were stated to express the results of an experience of centuries gained by superior Courts in England and to show the proper conditions of peremptory interference, when there had been an excess of jurisdiction, or a failure to exercise it, by the lower Court; and it was remarked (p. 370):-

It is very desirable that there should, as far as possible, be a complete agreement of principle between the working of this Court at its original and appellate sides, in giving effect to kindred jurisdictions. The terms imposed on the one may well serve for guidance to the other branch of the Court, unless they contravened some law which the latter branch has to administer. It does not appear that, in regulating the exercise of our ill-defined authority by the principles in question, we shall diminish our power to correct abuses of the law, which the Legislature does not intend to be corrected in other ways, by other means.

10. As to the reliance placed on Clause 2 of Section 5 of Regulation II of 1877, I have been able to find three other Bombay cases, besides Mahadaji's case, where the said provision was made use of for interfering with the decisions of the lower Courts, namely, Bai Atrani v. Deepsing Baria : AIR1915Bom269 ; Secretary of State, for India v. Narsibhai Dadabhai 0I.L.R(1923) . 48 Bom. 43 and Bombay Steam Navigation Co., Ltd., v. Vasudev Baburao 29 Bom. L.R. 1551. All these three cases were of suits regularly filed in ordinary civil Courts, and in all these eases it was contended that Section 115 of the Civil Procedure Code had no application, and this Court held that it had jurisdiction derived from Sudder Dewanee Adawlut in exercise of its general power of superintendence to interfere. Though the Regulation of 1827 was repealed in 1873 by Act XII of that year, the third paragraph of the first section of the Repealing Act provided:-

It shall not affect any established jurisdiction, form or procedure or existing usage, custom or privilege, notwithstanding that the same respectively may have been in any manner affirmed, recognised or derived, by, in, or from, any enactment hereby repealed.

In Secretary of State for India v. Narsibhai Dadabhai, Coyajee J. said (p. 55):-

In any event, our powers derived from Section 5 of Bombay Regulation II of 1827 are very wide. The powers thereby conferred on the Suddur Dewanny Adawlut 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.

And Shah J. said (p. 59):-

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 (the said) Regulation....

11. In view, however, of the actual wording of Sub-section (2) of Section 5 of the Regulation, namely, 'It Shall also be competent to the said Court to call for the proceedings of any subordinate Civil Court,' it would in the present case be arguing in a circle to say that this Court has jurisdiction over the Collector which is a subordinate civil Court. I am doubtful whether the said sub-section was intended to apply to proceedings of any Court except the regular civil Courts expressly dealt with by the Civil Procedure Code.

12. As to the question of the general powers of superintendence said to have been derived from the powers of the Supreme Court established at Bombay in 1823, the recent decision of the Privy Council in Ryots of Garabandho v. Zemindar of Parlakimedi, to which reference has already been made, appears to me to be of considerable importance, although the particular question before their Lordships was whether the High Court of Madras had jurisdiction to issue a writ of certiorari to the Board of Revenue constituted under the Madras Estates Land Act, 1908, where the Collective Board had made an order under the said Act enhancing the appellants' rents. Viscount Simon L.C., who delivered the judgment, not only considered the previous decisions relating to this particular question but also considered the history of the highest Courts in India from the year 1772 when the East India Company undertook the administration of the dewani (revenue and civil justice) by setting up a system of civil Courts. In that connection the question of the true construction that was to be put on the Charter dated December 26, 1800, establishing the Supreme Court at Madras had to be considered, particularly Clause 8 thereof which was in the following terms:-

8. And it is our further will and pleasure that the said Chief Justice, and the said Puisne Justices, shall, severally and respectively, be, and they are all and every of them, hereby appointed to be, Justices and Conservators of the Peace, and Coroners, within and throughout the settlement of Fort, St. George, and the town of Madras, and the limits thereof, and the factories subordinate thereto, and all the territories which now are, or hereafter may be, subject to, or dependent upon, the Government of Madras aforesaid; and to have such jurisdiction and authority as our Justices of our Court of King's Bench have, and may lawfully exercise, within that part, of Great Britain called England, as far as circumstances will admit.

The terms of this clause correspond exactly to those of Clause 5 of the Letters Patent establishing the Supreme Court at Bombay dated December 8, 1823. Their Lordships referred inter alia to Clause 21, 22, 33 and 34 of the Madras Charter, corresponding respectively to Clause 23, 24, 36 and 38 of the Letters Patent establishing the Supreme Court at Bombay. Clause 21 of the Supreme Court Charter of Madras gave the Court jurisdiction over all persons who in previous charters had been described as 'British subjects' residing within any of the factories dependent on the Government of Madras, and it empowered the said Court to hear all actions and suits against them arising in any territory which should then or thereafter be dependent upon that Government or within that of any native Indian prince in alliance with that Government; also against any person employed by the Company or by any British subject. The clause further gave the Court all the jurisdiction which the Mayor's and Recorder's Courts had enjoyed. Clause 22 gave the Court power to hear civil suits against all the inhabitants of the town and provided that Hindus and Mahomedans should have the benefit of their own laws in matters of inheritance and contract. Clause 33 gave a jurisdiction in equity over those persons previously specified for its ordinary civil jurisdiction. Clause 22 was one of the sections conferring on the Court criminial jurisdiction and making it the Court of oyer and terminer and gaol delivery for the town and factories subordinate thereto. After saying that the terms of Clause 8 were plainly reminiscent of the passage in Blackstone's Commentaries where the King's Bench had been described as 'the remnant of the aula regia,' and which referred to the Justices of the King's Bench 'who are by their office the sovereign conservators of the peace and supreme coroners of the land,'-a passage derived from the fourth part of Coke's Institutes where 'the highest language is held concerning the justices of this Court,'-their Lordships considered whether Clause 21, 22, 33 and 84 of the Charter of the Supreme Court at Madras had any, and if so, what, bearing on Clause 8 thereof. In In re Nataraja Iyer I.L.R.(1912) Mad. 72 Sadasiva Ayyar J. had held that the powers given by Clause 8 were given to the Judges not merely in their individual capacity but as constituting the Supreme Court and that Clause 21, 22, 33 and 34 did not limit the powers given by Clause 8. On the first point their Lordships agreed, but as to the second point they agreed with Sundara Ayyar J. in the same case who had remarked (p. 80):-

The Supreme Court had no general power or control over the Courts of the East India Company in the mofussil or over their officers acting judicially. I believe this proposition would be correct even in cases where the officers exercising jurisdiction might be British subjects.

13. In arriving at this interpretation of Clause 8 their Lordships were guided by the following considerations (p. 156):

The concluding part of Clause 8 makes no reference to prerogative writs, but is a broad and summary reference to the whole of a King's Bench Judge's jurisdiction and authority. Is it really the effect of these words to subject the Indian inhabitants throughout the province, and all matters of dispute between themselves, to the same jurisdiction as the King's Bench would apply to the inhabitant of an English county ?...Nothing is said in Clause 8 about the persons over whom the authority is to be exercised. Much is said in Clause 21, 22, 83 and 34. If it was intended by Clause 8 to grant jurisdiction as in England over all inhabitants of the province, why is the jurisdiction defined, limited, and guarded by the elaborate provisions of the later clauses What is the point in saying that Indians employed by the Company should only come under the jurisdiction for wrongs and trespasses-if all Indians are put by Clause 8 under all the jurisdiction that there is Why is it said that to be a landholder or ijaradar shall not subject an Indian to the jurisdiction if all Indians have been made subject to it? Why is it so elaborately provided in Clause 22 that Hindus shall have the benefit of the Hindu law and yet not a word is expended in Clause 8 to safeguard any personal law These considerations lead necessarily, as their Lordships think, to the conclusion that Clause 8 gives, and in general terms defines, an authority which is to be exercised over those who by the later clauses are made subject to it. The character and quality of the jurisdiction is naturally approached from the standpoint of the status and authority of the individual judge. It is not possible to treat Clause 8 as giving a separate jurisdiction over all persons in the province independently of Clause 21, 22, 33 and 34.

14. In their Lordships' opinion the words 'as far as circumstances will admit' rendered it impossible to regard the reference to the Kings' Bench as founding a general jurisdiction outside the Presidency town independent of, and inconsistent with, the other provisions of the charter, and they quoted with approval an argument used in a Bombay case In re Justices of the Supreme Court of Judicature at Bombay (1829) 1 Knapp 1 (p. 38):-

Though there are words in this charter giving to the court the authority of the Court of King's Bench, it is the nature of the authority which is described, and not the extent of the jurisdiction.

It was further held that the construction which their Lordships put on the Charter was in line with the chief decisions as to the extent of the powers of the Supreme Court; and in this connection their Lordships referred to Nagappah Chitty v. Rachummah (1802) 1 Str 152Rex v. Goculnauth Mullick (1824) Mor 220 the case of James Pattle (1836) Fulton 313; Kerry v. Duff (1841) Ful 111; In re the Justices of the Supreme Court of Judicature at Bombay (1829) 1 Kna1 In the matter of Ameer Khan (1870) 6 Ben. L.R. 392 and Legal Remembrancer v. Matilal Ghose I.L.R.(1913) Cal. 173, S.B.. In the last case Jenkins C.J. had observed (p. 205):-

It is a sufficiently accurate statement for the purpose of this case to say, that, as the result of this and subsequent legislation, the criminal jurisdiction of the Supreme Court (apart from crimes maritime) was limited to the local limits except as to British subjects, and the Court had no general control or power over mofussil criminal courts. The Common Law was similarly limited application to the Presidency towns and to British subjects outside the local limits.

15. In the light of the above decision of the Privy Council it would appear that in Shiva Nathaji's case an excessive power of superintendence over other Courts exercising civil jurisdiction was assumed and that it is now difficult to hold that so far as Courts exercising such jurisdiction outside the Presidency-towns are concerned, any general power of superintendence beyond what is granted by the Code itself exists in the High Court.

Rajadhyaksha, J.

16. I agree.

17. In the result, in the view of the law that we have taken, the question referred to us must be answered in the negative.


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