Skip to content


Noreen R. Srikantaiah Vs. L. Dasarath Ramaiah and anr. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKarnataka High Court
Decided On
Case NumberCivil Petition No. 218 of 1981
Judge
Reported in[1986]60CompCas341(Kar); ILR1985KAR572; 1985(1)KarLJ278
ActsCode of Civil Procedure (CPC), 1908 - Sections 24
AppellantNoreen R. Srikantaiah
RespondentL. Dasarath Ramaiah and anr.
Appellant AdvocateS.P. Shankar, Adv.
Respondent AdvocateM. Sowri Raju, Adv.
Excerpt:
.....to adduce evidence. - 856 of air 1979 sc) :the poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of order xxxiii, civil procedure code. however, the requirement of the element of subordination envisaged in section 24 so as to render the power under section 24 exercisable, is, understandably, not in section 25. if, for purposes of section 25, a motor accidents claims tribunal is a 'civil court',it follows a fortiori, that the tribunal is a 'court',for the purpose of section 24 as well. we are satisfied that the cases before us are fit cases for being transferred from the file of the motor accidents claims tribunal, moradabad, to the file of the motor accidents claims tribunal, delhi. 6) :we are accordingly of the..........under section 110, the 'district judge' was constituted as the tribunal. judicial opinion in the high courts on the point whether the 'district judge' function as 'persona designation' or functions as 'court' is not uniform. the petition is before us on its reference to a divisions bench by kudoor j. 2. the petitioner is the wife of a certain c. s. srikantaiah who died on july 9, 1980, in motor accident. she filed mvc no. 51 of 1981 on the file of the motor accidents claims tribunal, gulbarga, claiming compensation. 3. by the present petition, she seeks to invoke the general power of transfer of the high court under section 24, civil procedure code, for the transfer of her case from the tribunal at gulbarga, to the tribunal at bangalore metropolitan area. the ground urged is that she.....
Judgment:

1. This civil petition preferred by a claimant in a fatal accident action raises the question whether the Tribunal constituted by the State Government under section 110 of the Motor Vehicles Act, 1939, is a 'court' subordinate to the High Court so as to attract the general power of transfer under section 24, Civil Procedure Code. By the notification under section 110, the 'District Judge' was constituted as the Tribunal. Judicial opinion in the High Courts on the point whether the 'District Judge' function as 'persona designation' or functions as 'court' is not uniform. The petition is before us on its reference to a Divisions Bench by Kudoor J.

2. The petitioner is the wife of a certain C. S. Srikantaiah who died on July 9, 1980, in motor accident. She filed MVC No. 51 of 1981 on the file of the Motor Accidents Claims Tribunal, Gulbarga, claiming compensation.

3. By the present petition, she seeks to invoke the general power of transfer of the High Court under section 24, Civil Procedure Code, For the transfer of her case from the Tribunal at Gulbarga, to the Tribunal at Bangalore Metropolitan area. The ground urged is that she is a chronic patient suffering from hypoglycemia and low blood pressure and vertigo, that she often suffers 'bouts of depression' and that in her present physical condition she unable to stand the 400 mile journey to Gulbarga

4. First respondent is the owner of the vehicle and the second respondent is the insurer. The former, thought served, is unrepresented. The insurer, however, is represented by its learned counsel, Sri Sowri Raju.

5. We have heard Sri S. P. Shankar and Sri V. Tarakaram, learned counsel for the petitioner, and Sri Sowri Raju, learned counsel for respondent No. 2

6. The controversy is not whether there are grounds to grant the petitioner's prayer; but one its permissibility in law. The contention is that the Motor Accidents Claims Tribunal Constituted under section 110A of the Act, is not a 'court' subordinate to the High Court within the meaning of section 24, Civil Procedure Code.

7. In State of Mysore v. K. L. Subbanna [1973] 2 Mys LJ 473; AIR 1974 Kar 109, learned single judge was of the view that the Tribunal, ex facie, is not a court subordinate to the High Court so as to render a revisions petition under section 115, Civil Procedure Code, maintainable. In Revanappa v. Gunderao [1983] 1 Kar LJ 361; AIR 1983 164, Swami J. has, in a similar context, on a review of the authorities, held that the Tribunal is not a 'court' subordinate to the High Court.

8. The distinction between the concepts of a court a Tribunal consists is that though both are vested with, and exercise, the 'judicial power' of the State, a 'court' as part of the system of ordinary civil court of the land, exercises the 'judicial power' to try all cases of a civil nature, excepting those whose cognisance is either expressly, or by implication, barred; while the Tribunal has and exercises 'judicial power' in special matters statutorily conferred and delimited. On considerations of policy, the 'Judicial power' of the State is transferred to and exercised by the 'ordinary courts of the land', or 'the courts of the country' as they are known. They are part of the ordinary hierarchy of court of civil judicature; but there is nothing to prevent the state from entrusting its 'judicial power' in special matters and in special disputes to judicial 'Tribunals.'

9. So both derive their power from, and partake of, a common source, - the 'judicial power' of a sovereign State. They necessarily share the common features characteristic of and incidental to the very nature of the power they exercise; and to the commonness of the source of that power. In the case of courts, however, the procedure followed by, and usually associated with, them and the possession of certain inherent and subsidiary power intended to help them to effectuate their task are re described as the 'trappings' of the court. But the presence of some or all of these 'trappings' in an adjudicator forum is not necessarily conclusive as to its character as a 'court' if it otherwise does not share the essential characteristic of one. The line of distinction between a 'court' and a 'Tribunal' in some cases is indeed fine though real. All court are Tribunals but the converse need not necessary to true. Their procedure may differ, but their function are not necessarily different. 'What distinguishes them.' it is said, 'has never been established. Lord Stamp said that the real distinction is that the courts have an air of detachment'. But this is 'more a matter of age and tradition and not of the essence'.

10. Essentially both a 'court' and a judicial 'Tribunal' must share the characteristics and qualities arising out of the entrustment of the 'judicial power'. 'Judicial power' in the words of Griffith C.J. in Huddari, Parker Pvt. Ltd. v. Moorehead (8 CLR 33) is :

'... the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not until some Tribunal which has power to give a biding and authoritative decision (whether subject to appeal or not) is called upon to take action.'

11. The distinction between a 'court' and a judicial 'Tribunal' is referred to by Lord Sankey L.C. in Shell Co. of Australia v. Federal commissioner of Textile [1931] AC 275, thus (at page 296) :

'The authorities are clear to show that there are Tribunals with many of the trappings of a court, which, nevertheless, are not courts in the strict sense of exercising judicial power ... In that connection, it may be useful to enumerate some negative propositions on this on this subject : 1. A Tribunal is not necessarily a court in this strict sense because it gives a final decisions. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a court. 6. Nor because it is a body to which a matter is referred by another body ...'

12. In Revanappa's case : AIR1983Kant164 , Swami J. examined the provisions of the 'Act' to show that internal evidence contained in the statute itself indicated that the statute envisaged a special Tribunal to adjudicate upon the claim for compensation and not the creation of another set of civil court. The reference in the statute itself to some claims touching damages to property exceeding Rs. 2,000 being cognisable by the civil courts in itself emphasised, according to His Lord-ship, the distinction between a 'court' and a 'Tribunal' which the special adjudicator forum set up by the statue was. His Lordship observed (at pages 167-169) :

'7.2 Thus, the Act itself while conferring jurisdiction on a Claims Tribunal in respect of the claims for compensation falling under sub-section (1) of section 110 of the Act, has maintained a distinction between a Claims Tribunal and a civil court by retaining the jurisdiction of a civil court in respect of claims falling under the proviso to sub-section (1) of section 110 of the Act.'

'7.3 Thus, from this provision also, it is clear that the Claims Tribunal is not a civil court and it is because of this, it is specifically empowered to exercise the powers of a civil court. If it really were to be a civil court, it was not at all necessary to make such a specific provision in the Act, inasmuch as even in the absence of such specific provision, the provisions contained in the Code would have been available.'

'7.4. Accordingly, it has maintained a distinction between a civil court and a Claims Tribunal and wherever the jurisdiction is given to a Claims Tribunal, the civil court's jurisdiction is ousted and if left with the civil court, jurisdiction of the Claims Tribunal to that extent is barred. Therefore, there is a definite indication in the Act itself for holding that a Claims Tribunal constituted under the Act is a Tribunal having special jurisdiction and it cannot be regarded to be a civil court ...'

'7.6. Thus, it is clear that merely because an authority or a body is entrusted with the judicial powers and functions of the State and is having some of the attributes of a civil court. By itself will not be a determining factor to hold that such a body or authority is a court, in the strict sense of the term falling within the hierarchy of courts established under the Constitution ...'

13. However, it appears to us, the distinction between the concept of a 'court' and of a 'Tribunal', neither term having been a defined one, does not purely turn on the basis of the exclusiveness of their jurisdictions. Reference to and the recognition of 'civil courts' in the statute need not necessarily detract from the adjudicator forum set up by the statute being, itself, a 'court'. Indeed, in Rajah Nilmoni Singh Deo Bahadoor v. Taranath Mookerjee [1881-82] 9 IA 174, the question was whether the Deputy Commissioner who made decrees in rent suits under the Bengal Act 10 of 1859 could transfer those decrees for execution into another district. If the rent court was a civil court within the meaning of Act VIII of 1859, then the Collector had the power of transferring the decrees. One of the cognate questions that, therefore, arose was whether rent courts were civil courts. The argument against it was similar to the Swami J. considered, and upheld, in Revanappa's case : AIR1983Kant164 , viz., that the expression 'civil court' is used in the statute in such a way as to distinguish the forum set up by the statute from the 'civil court'. The Judicial Committee noticed the argument thus :

'There are a number of other sections of similar frame; and the contentions, that the expression 'civil court' is used in all those sections in such a way as to show that the framers of the Act X of 1859 did not consider that the Rent Courts established by that Act are civil courts.'

14. But referring to the distinction as not conclusive, it was observed :

'... 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 fell within the provisions of Act VIII of 1859 ...'

15. The mere lack of general jurisdiction to try all suits of a civil nature does not necessarily yield the inference that the forum is not a court. A court can also be constituted with limited jurisdiction.

16. Then again, the proposition that when the 'District Judge' is notified as constituting the Tribunal, the conferment of the special jurisdiction on the District Judge is by virtue of his presiding over the District Court and is not persona designation and that though the term 'District Judge' is used in the notification, the investiture of jurisdiction is in reality in the court of District Judge is eminently arguable. In Balakrishna Udayar v. Vasudeva Ayyar AIR 1971 PC 71, the judicial Committee observed :

'It appears to their Lordships to be clear that in these matters the civil court exercises its powers as a court of law, not merely as a persona designation whose determinations are not be treated as judgments of a legal tribunal.'

17. It is not necessary to refer to the differing views of the High Courts on the point. We have now the pronouncement of the Supreme Court in Bhagwati Devi v. I. S. Goel [1983] ACJ 123, which imparts an altogether new complexion to the problem and puts the point beyond controversy. In this decision, the Supreme Court referred to its earlier pronouncement in Dharshana Devi's case, : [1979]3SCR184 , which arose out of the decision of the Punjab and Haryana High Court in Smt. Dharshana Devi v. Sher Singh, Air 1978 P&H; 265. The question before the High Court in that case was whether a claimant before Tribunal constituted under section 110 of the Act is entitled to the benefit of Order 33, rule 1, Civil Procedure Code. The Tribunal had, in that case, negatived this claim holding that Order 33, Civil Procedure Code, was not one of those provisions which had expressly been made applicable by the Punjab Motor Accidents Claims Rules, 1964. In support its view, the Tribunal had relied upon an earlier opinion expressed by Dua J. that section 110C of the Motor Vehicles Act by no means clothed the Tribunal with all the characteristics of a civil court. But in Dharshana Devi's case AIR 1978 P&H; 265, Koshal C.J. did not subscribe to the earlier view of Due J. but referred, with approval, to a Full Bench Judgment of that court in Shanti Devi v. General Manager, Haryana Roadways, Ambala, [FB] in which, Jain J., speaking for the Full Bench, had said (at page 72) :

'The proceeding before the Claims Tribunal closely resemble the proceedings in a civil court and to use the language of their Lordships of Supreme Court in Jugal Kishore's case, : 1967CriLJ1380a , the Claims Tribunal for all intents and purposes discharges the same functions and duties in the same manner as a court of law is expected to do. In this view of the matter, I hold that the proceedings before the Claims Tribunal are not in the nature of arbitration proceedings and that the Claims Tribunal are not in the nature of arbitration proceedings and that the Claims Tribunal while disposing of the claims acts as a court'.

18. Dharshana Devi's case, AIR 1978 P&H; 265, in which the above view of Jain J. was reiterated, went up to the Supreme Court. The Supreme Court observed (at p. 856 of AIR 1979 SC) :

'The poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of Order XXXIII, Civil Procedure Code. So we are distressed that the State of Haryana. Mindless of the mandate of equal justice to the indigent under the Magna Carta if our Republic, expressed in article 14 and stressed in article 39A of the Constitution, has sought leave to appeal against the order of the High Court which has rightly extended the 'pauper' provisions to auto-accident claims. The reasoning of the High Court in holding that Order XXXIII will apply to tribunals which have the trappings of the civil court finds our approval. We affirm the decision.'

19. But in Revanappa's case : AIR1983Kant164 , Swami J. did not accept the contention that in Dharshana Devi's case, : [1979]3SCR184 , the Supreme Court must be understood to have affirmed the view of Jain J. in Shanti Devi's case, [FB], on which Koshal C.J., had, in turn, placed reliance.

20. However, Bhagwati Devi's case [1983] ACJ 123 (SC) now puts the point outside the pale of controversy. The matter arose in the context of the power of the Supreme Court under section 25 to transfer suits and other proceedings inter alia, from one 'civil court' in one State to another 'civil court' in any other State. There is no distinction in the concept of a court between section 24 and section 25, Civil Procedure Code. However, the requirement of the element of subordination envisaged in section 24 so as to render the power under section 24 exercisable, is, understandably, not in section 25. If, for purposes of section 25, a Motor Accidents Claims Tribunal is a 'civil court', it follows a fortiori, that the Tribunal is a 'court', for the purpose of section 24 as well. It is in this context that the pronouncement in Bhagwati Devi's case [1983] ACJ 123 (SC) is instructive on the aspect now under consideration. The Supreme Court said :

'In view of the observation of this court in State of Haryana v. Darshana Devi, : [1979]3SCR184 , we are of the view that the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act is a civil court for the purposes of section 25 of the Code of Civil Procedure. We are satisfied that the cases before us are fit cases for being transferred from the file of the Motor Accidents Claims Tribunal, Moradabad, to the file of the Motor Accidents Claims Tribunal, Delhi.'

21. This pronouncement of the Supreme court should now serve to put the controversy at rest. In view of this pronouncement, the view taken in State of Karnataka v. K. L. Subbanna [1973] 2 Mys LJ 473; AIR 1974 Kar 109 and in Revanappa's case : AIR1983Kant164 , that such a Tribunal is not a 'court' cannot continue to hold the field.

22. The question is whether the Tribunal, a 'court' is subordinate to the High Court. The Circumstance that the Tribunal is held to be a 'civil court' is, in itself, sufficient to hold that it is subordinate to the High Court. In Rajah of Venkatagiri v. Sheik Mahaboob Saheb AIR 1944 Mad 139, dealing with the question whether the District Collector under section 15(4) of the Madras Agriculturists' Relief Act, 1938, was a 'court' subordinate to the High Court, Patanjali Sastri J. (as his Lordship then was), speaking for the Division Bench, said (at page 141) :

'...... 'Subordination' is no whether defined ...... To say that the Collector's Court is a 'civil court' within the meaning of this section will be a simple and complete solution of the problem. In our judgment, it is also the correct solution. The preamble to the Code indicates that it is an Act to consolidate and amend the law relating to the procedure of the 'courts of civil judicature' ....... From these provisions it seems to us that section 3 of the Code must be interpreted as a comprehensive declaration, as a matter of corollary, of the subordination of all 'court of civil judicature' to the District Court in a district area and to the High Court in a provincial area. There can be little doubt that in the present case the Sub-Collector and the District Collector were hearing and determining disputes of a civil nature and we see no sufficient reason why the proceedings before them should not be regarded as 'civil proceedings' and their courts as 'civil courts' for the purposes of section 3.'

23. The above view of Patanjali Sastri, J. was followed by Tukol J. in Narayan Nagappa Hegde v. Shankar Narasimha Bhatta AIR 1966 Mys 5.

24. The enumeration of subordination of courts in section 3 is not exhaustive and does not exclude all other courts from being subordinate to the High Court. There can be no category of 'civil courts' which are not subordinate to the High Court in relation to the territorial jurisdiction of the High Court. The High Court has appellate jurisdiction over the Tribunals also.

25. In T. V. Subba Rao v. T. Koteswara Rao, : AIR1963AP37 , referring to the subordination of courts to the High Court, it was observed (pp. 40 and 41) :

'...... that the High Court of a State exercising jurisdiction over the territory of the State is the highest court in that State and all other courts exercising civil jurisdiction as contemplated by the Civil Procedure Code are subordinate to the High Court, and hence the employment of the expression 'any court subordinated to such High Court' is not intended to refer to a special category of courts which alone can be regarded as subordinate and recognise another category of courts within the territory in which the High Court exercises jurisdiction which are not subject to the jurisdiction of the High Court ....... Hence every High Court exercising jurisdiction within the territorial limits over which the High court exercises jurisdiction is subordinate to the High Court. It is subordination to the High Court if it is exercising its criminal jurisdiction on its criminal side. It is subordinate to the High Court on the civil side if the court or tribunal is exercising jurisdiction in its civil side, so that any civil court exercising civil functions is a court subordinate to the High Court, ....'

26. The observations of the Supreme Court in Thakur Das' case : 1978CriLJ1 , though made in the context of the revisionary jurisdiction of the High Court under section 435 and 439 of the revisionary jurisdiction of the Code of Criminal Procedure, also afford guidance (p. 6) :

'We are accordingly of the opinion that even though the State Government is authorised to appoint an appellate authority under section 6C, the Legislature clearly indicated that such appellate authority must of necessity be a judicial authority. Since under the Constitution the court being the repository of the judicial power and the officer presiding over the court drives his designation from the nomenclature of the court, even if appointment is made by the designation of the judicial officer, the appellate authority indicated is the court over which he presides discharging functions under the relevant Code and placed in the hierarchy of courts for the purposes of appeal and revision. Viewed from this angle, the Sessions Judge though appointed an appellate authority by the notification, what the State Government did was to constitute an appellate authority in the Session Court over which the Sessions Court over which the Sessions Judge presides. The Sessions Court is constituted under the Code of Criminal Procedure and indisputably it is an inferior criminal court in relation to the High Court. Therefore, against the order made in exercise of powers conferred by section 6C, a revision application would lie to the High Court ....'

27. In view of the foregoing, we hold that the Motor Accidents Claims Tribunal is a 'court' subordinate to the High Court within the meaning, and for purposes, of section 24 of the Code of Civil Procedure. Transfer of a case from one Tribunal in the State to another is permissible.

28. In the facts and circumstances of the present case, we are of the opinion, that it is a fit case in which the power of transfer should be exercised. We, accordingly, allow this civil petition; transfer the proceedings in MVC No. 51 of 1981 now pending before the Motor Accidence Claims Tribunal, Gulbarga, to the Motor Accidents Claims Tribunal, Bangalore Metropolitan Area, for disposal in accordance with law. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //