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Hirachand Sunderji Vs. Venidas Nemchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 8 of 1932
Judge
Reported inAIR1933Bom194; (1933)35BOMLR271
AppellantHirachand Sunderji
RespondentVenidas Nemchand
Excerpt:
civil procedure code (act v of 1908), see,. 115-high court-revision jurisdiction-aden courts-aden civil and criminal justice act (ii of 1864)t section 15-application of spirit and principles of law-effect-provincial insolvency act (v of 1920).;the high court of bombay has jurisdiction to revise, under section 115 of the civil procedure code, 1908, orders passed by the aden court which is a court subordinate to the high court for all purposes.;section 15 of the aden civil and criminal justice act, 1864, requires the aden court to apply the spirit and principles of the laws and regulations in force in the presidency of bombay. this does not mean that a specific provision of an act can be so applied by itself. - - that may or may not be correct in so far as that particular act is concerned..........was not subordinate to the high court under this section. but that court is the principal court of civil jurisdiction in that area and as such corresponds to a district court, even if it is not so designated. there is nothing in section 3, therefore, which conflicts with the view that regards it as a subordinate court.6. i am accordingly of opinion that in a suitable case this court has power under section 115 to revise an order of the judicial assistant at aden.7. that leads me to consider the application on the merits.8. mr. thakor, for the applicant, based his case on section 15 of the aden act, which is in these terms :-in the administration of civil justice, the court of the resident shall be guided by the spirit and principles of the laws and regulations in force in the presidency.....
Judgment:

Nanavati, J.

1. This is an application to revise an order of the Judicial Assistant at Aden in which he refused to entertain an application by the present applicant requesting him to adjudicate one Venidas Nemchand as an insolvent by applying the spirit and principles of the Provincial Insolvency Act under Section 15 of the Aden Act II of 1864.

2. The present application is made under Section 115 of the Civil Procedure Code and Mr. Amin for the opponent has taken a preliminary objection. His point is that such an application is not competent inasmuch as the Court of the Judicial Assistant at Aden is not a Court subordinate to this High Court. His contention is that the powers of revision given to the High Court under the Aden Act are only of a restricted character, and in support of this he refers to the preamble of that Act, which says:-

and it is expedient to provide for the superintendence or revision of certain of Much judgments and proceedings by the High Court at Bombay ;-

the judgments and proceedings referred to being of the Resident at Aden. He wishes to deduce from these words the result that the High Court will have no powers of superintendence or revision except in matters expressly referred to in that Act, and that, therefore, the powers under Section 115 of the Civil Procedure Code would not be available for the present application. He has referred to several rulings of this Court, but for the present purpose, I think it is enough to consider only one of them, viz., Rhimbai Jamalbhoy v. Mariam Binte Abdul I.L.R. (1909) Bom. 267: 12 Bom. L.R. 149 It was held there that with regard to questions which might arise regarding cases to be stated by the Resident for the decision of the High Court under the provisions of Section 8 of the Aden Act (II of 1864) the Resident's Court is subordinate to the High Court. I do not think that the result of this ruling is, as argued by Mr. Amin, to lay down that the Resident's Court is not subordinate to the High Court for any other purpose except the provisions of Section 8. The question there was with reference to Section 8, and that is why the principle is stated in that form.

3. If a Court is subordinate to the High Court for certain purposes there is no denying that it is a subordinate Court, and if it is a subordinate Court the powers conferred by Section 115 of the Civil Procedure Code come into operation. It is not a sufficient answer that according to the preamble of the Aden Act the intention was to provide for the superintendence or revision only in certain matters. That may or may not be correct in so far as that particular Act is concerned ; but the powers of the Court under other enactments would come into play, if and as soon as the conditions necessary for the purpose are satisfied.

4. It is not that this Court has held that the Aden Court is subordinate only with respect to matters under Section 8. It has been held that the powers of superintendence extend to the transfer of cases from that Court to this Court under the Letters Patent: see Municipal Officer, Aden v. Ismail Hajee I.L.R. (1000) Bom. 246: 8 Bom. L.R. 4 Moreover, under Section 31 of the Aden Act itself it is provided that the High Court at Bombay shall have power to make and issue general rules for regulating the practice and proceedings of that Court. These facts confirm the view that the Aden Court is subordinate to this Court.

5. A reference was made to Section 3 of the Civil Procedure Code, which deals with the subordination of Courts, where it is stated :-

For the purposes of this 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.

It was contended by Mr. Amin that the Court of the Judicial Assistant at Aden was not subordinate to the High Court under this section. But that Court is the principal Court of civil jurisdiction in that area and as such corresponds to a District Court, even if it is not so designated. There is nothing in Section 3, therefore, which conflicts with the view that regards it as a subordinate Court.

6. I am accordingly of opinion that in a suitable case this Court has power under Section 115 to revise an order of the Judicial Assistant at Aden.

7. That leads me to consider the application on the merits.

8. Mr. Thakor, for the applicant, based his case on Section 15 of the Aden Act, which is in these terms :-

In the administration of civil justice, the Court of the Resident shall be guided by the spirit and principles of the Laws and Regulations in force in the Presidency of Bombay, and administered in the Courts of that Presidency not established by Royal Charter, and in the High Court in the exercise of its jurisdiction as a Court of appeal from those Courts.

He contends that by virtue of this section the Court at Aden was empowered and bound to apply the whole of the Provincial Insolvency Act and proceed under it to deal with his application. He conceded that if the Court found that some injustice or inequity might result from a strict application of every provision of that Act, the Court would have the power and discretion not to apply the Act strictly. But this is the only concession he would make with reference to the words 'the spirit and principles of the Laws and Regulations in force'.

9. Now, it seems to me that such a contention places too great a strain on that provision. If it is to be taken at its face value it would make it unnecessary to extend any enactment in force in this Presidency to Aden, which is a Scheduled District under the Scheduled Districts Act and to which all the laws applicable to Bombay Presidency do not necessarily apply. The object of separating certain districts as scheduled districts is to ensure that complicated laws which may not be suitable to a somewhat primitive state of society, or laws requiring elaborate machinery which may not exist in backward tracts, should not be applied to such backward tracts without due consideration. But if the contention that is put forward in this application is to prevail, such a reservation would lose most of its moaning. I think that there are very serious difficulties in construing Section 15 to mean that a whole system of law such as is laid down in the Provincial Insolvency Act can be applied merely by virtue of the words, 'shall be guided by the spirit and principles of law'. The Provincial Insolvency Act is one organic whole and it would not be easy to apply one portion of it without application of all its sections, or where the machinery for carrying out all its provisions does not exist. To take one example, an order of adjudication brings about certain consequences which follow as a matter of course on that order. All the property of the insolvent is vested in the Court, or in a receiver appointed by the Court, and the remedy of a creditor by way of a suit becomes barred, I do not see how legal rights can be set at naught without a definite statutory power conferred by the legislature such as is conferred under the Provincial Insolvency Act. The legal rights of the insolvent in his own property are divested, and the legal rights of a creditor to take steps by way of a suit are barred, only because the statute provides for it, and it does not seem possible for the Court to say that all these consequences result without any legislation, merely by applying the spirit and principles of an Act applicable in another area. Similarly, a discharge under the Act releases an insolvent from all debts which he has scheduled. There are also provisions for the avoidance of voluntary transfers and of preferential transfers to creditors. Penalties are provided for certain offences and for obtaining credit by an insolvent. I do not Bee how the Court can say that these powers can be assumed to have been conferred on it by implication under Section 15 of the Aden Act. The learned Judge has himself felt this difficulty, and has concisely indicated it in his order. He says:-

I do not consider I can apply provisions of Insolvency law when other portion Bitch as the punitive section of either Insolvency Act could not be enforced.

10. He has, therefore, considered the question and held that it was not possible for him to apply a specific provision of the Insolvency Act, not having the power to apply it as a whole, under the guise of being guided by its spirit and principles as contended by the applicant. I do not see how we can override that discretion. It is not possible for the High Court to indicate in detail to him what he has to consider as being the spirit or principles of an enactment like the Provincial Insolvency Act and how far he is to be guided by it.

11. In my view, therefore, the learned Judge rightly acted in dismissing the application, and the present application must, therefore, fail.

Murphy, J.

12. This is an application to revise an order of the Judicial Assistant to the Resident, Aden, declining jurisdiction in insolvency on the petition of a creditor on the ground that the Provincial Insolvency Act has not been applied, for Aden, as a Scheduled District, requires an applying notification under the Scheduled Districts Act, where an enactment, as in this case, has not proprio vigore been made to extend to the Scheduled Districts.

13. We have negatived a preliminary objection that no revision to us lay under Section 115 of the Code. We have considered all the cases, but they are all summed up in the case of Sadeck Abdulla v. Mahomed Abdullah (1928) 31 Bom. L.R. 225 a ruling to which I was a party, and in addition to what has just been said by my learned brother, it is enough for me to refer to the reasons I then gave for holding that on the facts before us we have jurisdiction to hear the matter.

14. On the merits, the application must fail. The applicant's case rests on Section 15 of the Aden Act which sets out, for the guidance of the Courts, that :-

In the administration of civil justice, the Court of the Resident shall be guided by the spirit and principles of the Laws and Regulations in force in the Presidency of Bombay, and administered in the Courts of that Presidency not established by Royal Charter, and in the High Court in the exercise of its jurisdiction as a Court of appeal from those Courts.

The section is a very wide one, and its generality seems to me to cause the difficulty in applying it as here desired. The provision is one not uncommon in Acts and Regulations for special areas, such as Scheduled Districts, as for instance Ajmer Merwara, and in Notifications under the Foreign Jurisdiction Order in Council, and the sense in which it is usually interpreted by the Courts concerned, over some of which I have presided, is to apply some provision of an Act not specifically applied, in a case already pending in which jurisdiction admittedly exists. I have never known it to be applied in the actual assumption of jurisdiction under a Special Act where none already exists.

15. What I mean can perhaps best be explained by an illustration. Had the old Civil Procedure Code of 1877, which contained in Chapter XX some simple insolvency provisions, still applied, and had those provisions not been repealed by the Provincial Insolvency Act of 1907, it would, I think, have been possible to take the spirit or principle of some rule in the present Provincial Insolvency Act, and to have applied it to facts not specifically provided for in the insolvency provisions of the old Civil Procedure Code, as insolvency jurisdiction would then already have existed. Similarly, where the Indian Limitation Act does not apply, it has sometimes been held that its spirit, which is to exclude stale claims, may be applied in cases in which, had it extended the claim would have been held long time-barred. This, I think, shortly put, is the real meaning of Section 15, and I do not think any other construction can be put on it without introducing many difficulties, and in fact abolishing the distinction between enactments which extend or have been extended to a Scheduled District, and ones which have been excepted, probably for administrative reasons and lack of machinery for applying their provisions.

16. In the present case it would obviously be very difficult to apply the whole of, or a section out of, the rules of the Provincial Insolvency Act, in the absence of any originating jurisdiction to the application at its initial stage, and I think this could not possibly have been meant by Section 15.

17. I agree that the rule must be discharged with costs. It is for the Local Government to consider whether the Provincial Insolvency Act should be applied to Aden, or not.


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