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Mouna Guruswami Naicker Vs. Sheik Mahommadhu Rowther and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1923)ILR46Bom83
AppellantMouna Guruswami Naicker
RespondentSheik Mahommadhu Rowther and anr.
Excerpt:
.....jurisdiction of one court and business therein transferred to a new court--breach of temporary injunction--jurisdiction of new court to punish. - - it is perfectly clear to us that this is a case to which section 150 does apply and that there is nothing in order 39, rule 2 (3) which prevented the dindigul court from acting under that rule and dealing with the application that was made to that court by the plaintiff. 907 the words 'that the court which granted the injunction' were introduced into the new code not with any object of changing the law which existed before, but because the wording of the corresponding section in the old code was not very happy as it implied that the injunction was 'to be enforced by' imprisonment of the party whereas the imprisonment was really a..........under order 43, rule 1(r) of the civil procedure code, against the order passed by the subordinate judge of dindigul on an application made to him under order 39, rule 2 (3) to have the defendant punished for disobedience of an injunction which had been issued to him in the suit. the subordinate judge has declined jurisdiction on the ground that the proper court to punish for disobedience was the court which passed the order of injunction and that as his court was not that court he held he was not entitled to act under order 39, rule 2(3).2. the way in which this case came to the dindigul court was by an order of the district judge transferring to that court all the business within the areas of certain munsifs over which the dindigul court was given jurisdiction for the first time.3. it.....
Judgment:

1. This is an appeal by the plaintiff under Order 43, Rule 1(r) of the Civil Procedure Code, against the order passed by the Subordinate Judge of Dindigul on an application made to him under Order 39, Rule 2 (3) to have the defendant punished for disobedience of an injunction which had been issued to him in the suit. The Subordinate Judge has declined jurisdiction on the ground that the proper Court to punish for disobedience was the Court which passed the order of injunction and that as his Court was not that Court he held he was not entitled to act under Order 39, Rule 2(3).

2. The way in which this case came to the Dindigul Court was by an order of the District Judge transferring to that Court all the business within the areas of certain Munsifs over which the Dindigul Court was given jurisdiction for the first time.

3. It is contended before us that the Subordinate Judge in refusing jurisdiction misconstrued the provisions of Section 150, Civil Procedure Code, and that as the business of the Court which granted the injunction, namely, the Madura Sub-Court, was transferred so far ,as the local jurisdiction over certain munsifs was concerned to the Dindigul Court, that Court must be held to have the same powers and authorized to perform the same duties as the Madura Sub-Court. It is perfectly clear to us that this is a case to which Section 150 does apply and that there is nothing in Order 39, Rule 2 (3) which prevented the Dindigul Court from acting under that rule and dealing with the application that was made to that Court by the plaintiff. The argument addressed to us by the learned vakil for the respondent against that view is first of all that because Order 39, Rule 2 (3) speaks of the Court granting the injunction passing the order no other Court could be held to have jurisdiction to pass the Order and secondly, that the application of Section 150 is excluded by the words 'save as otherwise provided for' in that section. A very similar argument we had to consider with reference to Order 9, Rule 13 where there had been a territorial re-distribution of jurisdiction between two Munsifs' Courts where we held that the words 'save as otherwise provided for' did not prevent Section 150 from applying and enabling the Court to which the business had been transferred from setting aside an ex-parte decree. See Ranganatha Rao v. Hanumantha Rao I.L.R. (1923) Mad. 1. That was a case under Order 9, Rule 13, and there were some special reasons there more than there is in this case for the view we took; but we think that it is nevertheless an authority for saying that the words ' save as otherwise provided for' do not exclude the application of Section 150 merely because in the Rule that gives the Court power to take action, there are the words 'the Court granting the injunction.' As was pointed out by Srinivasa Ayyan-Car, J., in Suppi v. Kunhi Koya I.L.R. (1916) Mad. 907 the words 'that the Court which granted the injunction' were introduced into the new Code not with any object of changing the law which existed before, but because the wording of the corresponding section in the old Code was not very happy as it implied that the injunction was 'to be enforced by' imprisonment of the party whereas the imprisonment was really a punishment for disobedience. These words 'may be enforced' as pointed out by the learned Judge had to be changed in the corresponding new rule and it resulted in redrafting of that rule itself. Naturally when the active form of expression was used by the legislature it was necessary to describe the Court which was to be given power to punish for disobedience, and of course that was primarily the Court granting the injunction; but it is clear to our minds that this does not prevent the Court to which the business of that Court was transferred from exercising the power under Section 150. Rule 2 (3) does not say that it is only the Court granting the injunction that should make the order under it, so that there is nothing in that rule which excludes the application of Section 150 by bringing it within the words 'save as otherwise provided for.' If the suggsetion that is made by the learned vakil for the respondent is taken, the result will be that in case the Court which passed the injunction was abolished altogether for some reason, there will be no Court to punish for disobedience of the injunction even if the whole business of the abolished Court had been transferred to some other Court and was carried on by that other Court. We are not prepared to adopt such a construction as this, unless the language is perfectly clear in favour of it. Here so far as we can see there is nothing in Order 39, Rule 2 (3) and in Section 150 to prevent the Court to which the business of the first Court is transferred from exercising its powers under Rule 2 (3).

4. It is also argued for the respondent, to exclude the application of Section 150 in this case, that the transfer of the business in the area over which the Dindigul Court had been given jurisdiction by the order of the District Judge was not one which fell under Section 150, as there was only an assignment of the business of the one Court to another, and such an assignment, it is said, is not the same as the transfer spoken of in Section 150. The learned vakil for the respondent has cited the case in Munshi Md. Kazemal v. Munshi Niamuddin Ahmed 26 C.W.N. 216. to support his argument but with all respect we are unable to follow that ruling, for we do not agree with the learned Judges in that case that the word 'transfer' is inapplicable to a case where the District Judge fixes the jurisdiction of the Court under the Civil Courts Act and transfers the whole of the business within the area to it. The learned Judges seem to think that in such a case there is only an assignment of business and not a transfer of the business. So far as we can see there seems to be no reason why such a distinction should be made. Holding, as we do, that the present case falls under Section 150 we think the Subordinate Judge acted wrongly in declining jurisdiction in the matter of this application.

5. We set aside his order and remand the application to him for fresh disposal according to law. Costs to abide and follow the result.


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