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Pestanji Ratanji Dabu and Co. Vs. the Collector of West Khandesh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 667 of 1926
Judge
Reported in(1927)29BOMLR361; 101Ind.Cas.582
AppellantPestanji Ratanji Dabu and Co.
RespondentThe Collector of West Khandesh
Excerpt:
transfer of suit-mewas agent-high court-transfer to district court-jurisdiction.;the high court of bombay has jurisdiction to transfer a suit pending in the court of the mewas agent to any other court of equal or superior jurisdiction.;the district court is a court of jurisdiction equal to that of the mewas agent.;per patkar j. 'the expression 'jurisdiction' is of varied signification and would mean the extent of the authority entrusted to a court to administer justice either as a court of original jurisdiction or court of appeal.' - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground..........of any court subject to its superintendence. it is not disputed that the high court has power to transfer this suit to the original side: see municipal officer, aden v. ismail hajee i.l.r. (1905) 30 bom. 246 and abdul karim v. municipal officer, aden. i.l.r. (l903) 27 bom. 57.11. under section 107 of the government of india act, 1915, each of high courts has superintendence over all courts for the time being subject to its appellate jurisdiction, and may do any of the following mentioned things, that is to say, under clause (b) direct the transfer of any suit or appeal from any such court to any other court of equal or superior jurisdiction.12. under rule xxiv the court of the mewas agent is subject to the appellate jurisdiction of the high court, and, therefore, it follows.....
Judgment:

Patkar, J.

1. In this case the petitioner Pestanji Ratanji Dabu and Company of Surat took an Ijara Patta from the original deceased defendant Ranjitsangji Sursangji, Chieftain of Sansthan Kathi in Mewas, West Khandesh District, for the cutting of a forest in 1919 for Rs. 85,000. The petitioner filed a suit in the Court of the Mewas Agent, who is the Collector of West Khandesh, against Ranjitsangji to recover Rs. 21,000 with costs and rupees one lac for damages. Certain preliminary issues were decided by the Mewas Agent on December 23, 1924, and Ranjitsangji filed civil revisional application No. 163 of 1925 in the High Court. In that application a Rule was issued by this Court on June 15, 1925, and was discharged with costs on February 10, 1926.

2. Ranjitsangji died, and the Collector of West Khandesh as representing the Court of Wards was substituted in his place as his legal representative.

3. On July 8, 1926, the petitioner applied to the Mewas Agent that he himself in his capacity as the Court of Wards was now the defendant in the case and in that anomalous position could not try the suit, and requested him to move Government to transfer the suit to any other Court for trial, and that the petitioner might be allowed to move the proper authorities for transfer. The Collector, who was the Mewas Agent, did not pass any order on the application and fixed the suit for hearing on August 28, 1926. The petitioner has now applied to this Court for a transfer of the suit pending in the Court of the Mewas Agent to the First Class Subordinate Judge's Court at Dhulia or to any other competent Court.

4. The original defendant in this case was the Padvi of the Kathi in Mewas in the Khandesh District. Under Section 3 of Act XI of 1846 it was enacted that it shall be competent to the Governor in Council, by an order in Council, to prescribe such rules as he may deem proper for the guidance of the Agent and of all the officers subordinate to his control and authority, and to determine to what extent the decision of the Agent in civil suits shall be final and in what suits an appeal shall lie to the Sudder Diwani Adalat, and to define the authority to be exercised by the Agent in criminal trials and what cases he shall submit to the decision of the Sudder Fauzdari Adalat.

5. Act XI of 1846 was repealed by the Scheduled Districts Act XIV of 1874, and the villages belonging to the Parvi of Kathi as one of the Mewasi Chiefs are mentioned in clause IV of the second part of the First Schedule of that Act as being included in the Scheduled Districts.

6. The Rules which are framed under Section 3 of Act XI of 1846 appear at page 72 of Vol. II of the Local Rules and Orders, 1924 Edition, and are in force under Section 7 of Act XIV of 1874.

7. It is argued on behalf of the defendant that the Court of the Mewas Agent has a special jurisdiction of its own, and a special procedure is set up for the administration of justice in that Court, and that there is no power in the High Court to transfer a suit pending before the Mewas Agent to any other Court. Rule XXIV of the Rules lays down :-

First.-Every suit originally tried by the Assistants shall be open to an appeal to the Agent, provided such appeal be made within (30) thirty days from the date of passing the decree ; and the decree of the Agent shall in every such case be final. Second.-Every suit originally tried by the Agent shall be open to an appeal to the Sadar Diwani Adalat, if the appeal be made within the space of (90) ninety days from the date of passing the decree, and the decree of the Sadar Diwani Adalat shall be final.

8. The High Court has now succeeded to the jurisdiction of the Supreme Court and Sudder Diwani Adalat. By Section 9 of the High Court Act the jurisdiction originally granted to the Sadar Diwani Adalat was transferred to the High Court when the Court was constituted in 1861.

9. Section 1, Clause (3) of the Civil Procedure Code excepts the Scheduled District's from the operation of the Code of Civil Procedure and therefore, Section 24 of the Code would not apply.

10. Under Clause 13 of the Letters Patent the High Court has power to remove and to try and determine as a Court of extraordinary original jurisdiction any suit falling within the jurisdiction of any Court subject to its superintendence. It is not disputed that the High Court has power to transfer this suit to the Original Side: see Municipal Officer, Aden v. Ismail Hajee I.L.R. (1905) 30 Bom. 246 and Abdul Karim v. Municipal Officer, Aden. I.L.R. (l903) 27 Bom. 57.

11. Under Section 107 of the Government of India Act, 1915, each of High Courts has superintendence over all Courts for the time being subject to its appellate jurisdiction, and may do any of the following mentioned things, that is to say, under Clause (b) direct the transfer of any suit or appeal from any such Court to any other Court of equal or superior jurisdiction.

12. Under rule XXIV the Court of the Mewas Agent is subject to the appellate jurisdiction of the High Court, and, therefore, it follows that the High Court has superintendence over the Court of Mewas Agent.

13. On behalf of the defendant reliance is placed on the case of Maharajah of Jeypore v. Papayyamma I.L.R. (1900) Mad. 329. Boddam J. held in that case that the rule XXII passed by the Governor of Madras in Council under Section 4 of Act XXIV of 1839 was ultra vires and of no effect, and that the Agency Court was subject only to the appellate jurisdiction of the High Court, and, therefore, held that the order of transfer to the Distict Court of Vizagapatam was proper, and that the jurisdiction of the Agency Court was not superior to that of the District Court, and that the extent, pecuniarily of the two Courts was equal and the High Court had equal power to review the decrees of both. Against the order of Boddam J. an appeal was filed and was heard by Sir Charles Arnold White C.J. and Benson J. and their Lordships held that the rules were valid and that the order of Boddam J. transferring the suit was without jurisdiction and set it aside. Rule XXII of the Madras rules allowed an appeal to the Governor in Council alone where the landed possession of a Zamindar was the subject matter of the litigation, and it was for the Governor in Council to refer such appeal to the Sudder Diwani Court, provided the decree of the latter Court could not be carried into execution without the permission of the Governor in Council. But rule XXI of the rules allowed an appeal to the Sudder Court from all decrees in original suits passed by the Agent. In the case of Maharajah of Jeypore v. Papayyamma I.L.R. (1900) Mad. 329 the suit was governed by rule XXII which related to landed property in the possession of the Zamindar, and there was not a direct appeal to the High Court, but direct appeal lay to the Governor in Council who had the power to refer the appeal to the Sudder Court.

14. In the case of Maharajah of Jeypore v. Rajah Gangaraju I.L.R.(1923) Mad. 726 their Lordships considered the case of Maharajah of Jeypore v. Papayyamma and held that the old rules of 1840 were no longer law, and in the new rules which were framed by the Madras High Court no derogation from the High Court civil jurisdiction was recognised.

15. Under rule XXIV of the rules framed under Act XI of 1846, with which we are concerned, the High Court is invested with appellate jurisdiction over the Mewas Agent. Therefore it follows that under the Government of India Act, Section 107, the High Court has power of superintendence over the Mewas Agent, and has a right to direct a transfer of any suit from the Court of the Mewas Agent to any other Court of equal or superior jurisdiction.

16. It is next contended that the Court of the First Class Subordinate Judge is not a Court of equal or superior jurisdiction, and reference was made to the remarks of Benson J. at p. 360 of Maharajah of Jeypore v. Papayyamma. Benson J. was of opinion that the District Court could not be said to be a Court of equal or superior jurisdiction under Act XXIV of 1839 so as to justify a transfer and that the jurisdictions of the two Courts were in many respects dissimilar, so that it was difficult to compare them as regards equality, but if a comparison was made, Agency Courts seemed to be superior since they possessed superior powers in regard to appeals over Rs. 5,000 in value, and special appeals and revision of lower Courts, and reference to arbitration without consent of parties, and in regard to the finality of their decrees.

17. In the case of Maharajah of Jeypore v. Rajah Gangaraju the Madras High Court held that the High Court being superior to the Court of the Agency Commissioner, had power to transfer a case from that Court, but held that the District Court was not a Court of equal jurisdiction as there could be no comparison and no question of the equality between Courts so differently constituted, and transferred the case from the Agency Commissioner to its own file.

18. There can be no doubt that the High Court has power to transfer the present suit from the Court of the Mewas Agent under Section 107, Clause (b), of the Government of India Act, 1915. There is also no doubt that it is desirable that an order of transfer should be made. It is a fundamental rule of the administration of justice that a person cannot be a Judge of a cause wherein he is interested. The Collector of West Khandesh is the Court of Wards, and is now the defendant in the suit, and it would cause him embarrassment in the determination of the suit if he has to decide it. It is not suggested that there would not be a fair and impartial trial before him, but as a Court of Wards he will have to approve of the defence in the case, advise, or approve of the advice as to what evidence should be led in the case and decide if an appeal should be filed against his own decision, and it is not desirable in the interests of justice that he should decide this case. The maxim no one can be Judge in his own cause (Nemo debet ease judex in propria causa) would apply. See Broom's Legal Maxims, p. 81.

19. The only question, therefore, is to which Court the transfer should be made. In one sense jurisdiction may mean pecuniary jurisdiction and the First Class Subordinate Judge has unlimited pecuniary jurisdiction like the Mewas Agent. The expression jurisdiction is of varied signification and would mean the extent of the authority entrusted to a Court to administer justice either as a Court of original jurisdiction or Court of appeal. In Har Prasad v. Jafar Ali I.L.R. (1885) All. 345:-

The word in its ordinary meaning simply means the legal power or authority of hearing and determining disputes for the purposes of administering justice, and in its broad legal sense it may be taken to mean the power of administering justice according to the means which the law has provided, and subject to the limitations imposed by that law upon the judicial authority. Such limitations may either be territorial or pecuniary with reference to the value of the subject-matter in litigation, or they may relate to the nature of the litigation, or the domicile and nationality of the parties, or the class or rank to which the tribunal belongs.

In Sukh Lal Sheikh v. Tara Chand Ta I.L.R. (1905) Cal. 68 Rampini and Mookerjee JJ. in making a reference to the Full Bench remarked (p. 71) :-

Jurisdictitn may be defined to be the power of a Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it.

In Hriday Nath Roy v. Ram Chandra Barna Sarma, I.L.R. (1920) Cal. 13 Mookerjee A.C.J. has referred to the several definitions of the term 'jurisdiction' deducible from an examination of cases. The term 'jurisdiction' means the authority or power to act in any proceeding and not authority or power to do an act in a particular manner or form. See Teyen v. Ram Lal I.L.R. (1890) All. 115It would also mean the extent of the authority to administer justice either as a Court of original jurisdiction or Court of appeal. Though the First Class Subordinate Judge may have unlimited pecuniary jurisdiction he has no inherent appellate jurisdiction. Under Section 27 of the Bombay Civil Courts Act the First Class Subordinate Judge has to be invested with the power to hear appeals from decrees and orders of Subordinate Judges as may be referred to him by the Judge of the District. He has, therefore, to be invested with the power of hearing appeals and can hear such appeals as are referred to him by the Judge of the District. The appeals from decrees of Subordinate Courts lie to the District Court. I am not inclined to hold that the First Class Subordinate Judge is a Court of equal jurisdiction to that of the Mewas Agent. But I think the District Court is a Court of equal jurisdiction. Under Section 7 of Act XIV of 1869 the District Court is the principal Court of original civil jurisdiction in the District within the meaning of the Code of Civil Procedure. It is also a Court of appeal from decrees and orders of the Subordinate Courts. Sec Section 8 of Act XIV of 1869, Further Rule VI of the Rules for the Agents' Courts provides 'Whenever the Agent requires for the decision of a case before him an exposition of the Hindu or Mahomedan Law, he shall obtain the same by application to the Judge at Dhulia.' I think, therefore, the District Court of Dhulia is a Court of at least equal jurisdiction to that of the Court of the Mewas Agent. The pecuniary jurisdiction and the original and appellate authority of the two Courts are equal and the High Court has equal power to review the decrees of both. I would, therefore, respectfully differ from the view of the Madras High Court in Maharajah of Jeypore v. Rajah Gangaraju I.L.R. (1923) Mad. 726 which proceeded more on the difference as to the powers of disposing of cases. Any doubt on the point is removed by rule VI referred to above.

20. Lastly it is argued that a Division Bench of the High Court cannot order a transfer and reference is made to the case of Narayan Vithal Samant v. Jankibai, I.L.R. (1915) 39 Bom. 604 F.B. which related to the power of a single Judge of the High Court to stay hearing of a suit pending before a Subordinate Judge in the moffusil. Under Clause 36 of the Letters Patent and Section 108 of the Goverment of India Act of 1915 a Division Bench can exercise, as provided by the rules, the powers of the appellate jurisdiction vested in the High Court. Under Rule 1 of the Appellate Side rules the civil jurisdiction of Appellate Side shall be exercised by a Division Court.

21. We think that the District Court of Dhulia is a Court of equal jurisdiction to that of a Mewas Agent, and would, therefore, transfer the suit No. 1 of 1923 pending in the Court of the Mewas Agent, West Khandesh, to the Court of the District Judge of Dhulia. Costs hitherto incurred including the costs of this application will be costs in the suit.

Baker, J.

22. This is an application for transfer of a case from the Court of the Agent of the Mewasi Estates to that of the First Class Subordinate Judge of West Khandesh at Dhulia. The facts are that the plaintiff brought a suit in the Agent's Court founded on a breach of contract against the Chieftain of Sansthan Kathi. Under the Rules made under the Scheduled District Act XIV of 1874, published in Government Notification No. 9866 J.D. dated October 20, 1920, vide Vol. II of the Local Rules and Orders under enactments applied to Bombay at page 72, amending the old rules of 1854, suits arising in the Mewasi Estates must be brought in the Court of the Agent to the Governor.* During the pendency of the suit the defendant died, and his heir being a minor, the management of his estate was taken over by the Court of Wards, and the Collector of West Khandesh as representing the Court of Wards has been substituted in place of the deceased defendant. This raises a difficulty as the Collector of West Khandesh is also Agent for the Mewasi Estates, and it therefore follows that as manager of the Court of Wards he is defendant in the suit which he has to try in his own Court as Agent for the Mewasi Estates. It will be necessary for him to give instructions for the defence and to decide as to whether the suit should be contested, and this places him in an embarrassing position. It is a fundamental maxim that nobody can be a Judge in his own cause, and although I do not doubt that the Agent, who has no personal interest in the matter, would not be influenced in the disposal of the suit by the fact that in his capacity as the Court of Wards he is himself a defendant, it is not desirable that he should be placed in this embarrassing position as he could hardly be expected to file an appeal against his own decision. There can, therefore, be no doubt that it is desirable that the case should be transferred if this can be done legally. The Estates in question are included in the Schedule to the Scheduled Districts Act XIV of 1874, and by Section 1 of the Code of Civil Procedure of 1908, the scheduled districts are excepted from the operation of the Code. But under the rules already referred to an appeal lies under rule XXIV to the Sadar Diwani Adalat whose jurisdiction has been inherited by this Court. Under Section 107 of the Government of India Act, 1915, which reproduces the provisions of the Charter Act of 1861, each of the High Courts has superintendence over all Courts for the time being subject to its appellate jurisdiction, which under Sub-section (b) includes the power to direct the transfer of any suit or appeal from any such Court to any other Court of equal or superior jurisdiction, and, therefore, as appeals lie from the Court of the Agent of the Mewasi Estates to the High Court, the High Court has power under Section 107 of the Government of India Act to direct the transfer of any suit or appeal from the Agency Court to any other Court of equal or superior jurisdiction.

23. That this is so has been held by the Madras High Court in Maharajah of Jeypore v. Rajah Gangaraju. I.L.R. (1923) Mad. 726 Although that decision proceeds on the rules applied to the Ganjam and Vizagapatam Agency Courts framed under Act XXIV of 1839, those rules in their essentials are the same as those already referred to which govern the Agency Courts of the Mewasi Agency.

24. The case of Maharajah of Jeypore v. Papayyamma I.L.R. (1900) Mad. 329 was based on the old rules, and dealt with a rule by which an appeal lay to the Governor in Council. Hence it was held that the High Court had no power to transfer the case.

25. But the present case is on all fours with that of Maharajah of Jeypore v. Rajah Gangaraju and as regards the power to transfer I agree with the reasoning adopted by the Madras High Court in that decision. I have no doubt whatever that in view of rule XXIV of the rules published in Vol. II of the Local Rules and Orders under enactments applied to Bombay at page 72, this Court has the power to transfer the case by virtue of the powers conferred upon it by Section 107 of the Government of India Act, 1915.

26. It has been contended that a Divisional Bench has no power to direct a transfer, and that the power could only be exercised by the High Court as a whole. But in view of Clause 36 of the Letters Patent and of Rule 1 of the Appellate Side Rules, there can be no doubt that this Bench has the power to transfer.

27. The difficulty, however, arises from the fact that the transfer must be to a Court of equal or superior jurisdiction, and it was held by the Madras High Court in the case above quoted, viz., Maharajah of Jeypore v. Rajah Gangaraju, that there could be no question of equality between the Agency Court and the District Court. The only argument in favour of equality is that the original pecuniary jurisdiction of both is unlimited, a point which applies also to the First Class Court. But the Court held that the power which each can use in disposing of cases differs so widely that there can be no comparison and no question of equality between Courts so differently constituted. It was consequently held that the District Court was not a Court of equal jurisdiction and the case was transferred to the High Court file.

28. It has been contended on behalf of the applicant that we should not follow the reasoning of the Madras High Court in Maharajah of Jeypore v. Rajah Gangaraju, but accept the view of Boddam J. in Maharajah of Jeypore v. Papayyamma, where he held that the District Court was of equal jurisdiction with the Court of the Agent because the extent pecuniarily of jurisdiction of the two Courts is equal and the High Court has equal power to revise the decrees of both (page 332). That view was dissented from on appeal for reasons similar to those in Maharajah of Jeypore v. Rajah Gangaraju, namely, that the jurisdiction of the two Courts was too dissimilar for purposes of comparison. The differences, however, are in respect not of pecuniary jurisdiction which in the case both of the Agency Court and of the First Class Subordinate Judge is unlimited, but of the powers with regard to disposal of cases. The word 'jurisdiction' is defined in Mulla's Code of Civil Procedure, 8th Edition, at page 77, as 'the extent of the authority of a Court to administer justice.' Under Section 11 of the Civil Procedure Code the rules regarding concurrent jurisdiction are based on pecuniary jurisdiction, and the jurisdiction of a Court to take cognizance of a case, and not on the difference in the powers with regard to the disposal of a case. It may, however, be noted that certain suits such as those under Section 92 of the Civil Procedure Code must be instituted in the principal Civil Court of Original Jurisdiction which under Section 2(4) of the Civil Procedure Code is the District Court.

29. By rule II of the Rules under the Scheduled Districts Act, already referred to, the jurisdiction of the Agent shall extend to the cognizance of all suits and complaints of a civil nature which may arise between natives of the place and others.

30. Under rule VI when the Agent requires for the decision of a case before him an exposition of the Hindu and Mahomedan Law he shall obtain the same by application to the Judge at Dhulia (i. e. the District Judge).

31. The Agent has appellate powers over the decisions of his subordinates. The only power which he possesses, which the District Court does not possess, is that of revision under rule XXII.

32. In practice, therefore, the Court of the Agent is a principal civil Court of original jurisdiction, and it also exercises appellate powers similar to those of the District Court.

33. The Court of the First Class Subordinate Judge is not a principal civil Court of original jurisdiction nor does it per se exercise appellate powers, but disposes of such appeals as are referred to it by the District Court. I have no doubt that the Court of the First Class Subordinate Judge is not a Court of equal jurisdiction as compared with that of the Agent. As regards the District Court I am of opinion that it is otherwise.

34. It appears to me that the differences in the manner of exercising jurisdiction do not affect the question. 'Jurisdiction' has been held to mean not the authority or power to do an act in a particular manner, but the authority or power to act in the matter: Teyen v. Ram Lal I.L.R. (1890) All. 115 referring to the Privy Council case of Calder v. Halket (1839) 2 M.I.A. 293 ; and on this view the jurisdiction of the Agent's Court and that of the District Court are equal.

35. In these circumstances, I agree with my learned brother that the case should be transferred to the District Court of West Khandesh at Dhulia. I concur in the order as to costs.


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