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Madappa and ors. Vs. Mudumallamma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal Nos. 3, 243 and 281 of 1960
Judge
Reported inAIR1966Kant49; AIR1966Mys49
ActsStates Reorganisation Act, 1956 - Sections 119 and 120; Revenue Recovery Act; Madras Civil Courts Act, 1873; Code of Civil Procedure (CPC), 1908 - Sections 24
AppellantMadappa and ors.
RespondentMudumallamma and ors.
Excerpt:
.....procedure - whether district judge, mysore division at mysore had power to transfer appeal to civil judge at mysore and latter had jurisdiction to decide same - under section 24 read with section 6 district court is given general power of transfer of appeal pending before it for disposal to any court subordinate to it which is competent to dispose of same - civil judge's court at mysore had both pecuniary for jurisdiction to dispose of appeals transferred - held, district judge, mysore division at mysore, functioning as district court for koliegal taluk had power to transfer appeal. held see paras 24 and 31. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 125: [k.l. manjunath, j] claim for maintenance held, widowed daughter-in-law and her minor daughter cannot..........judge of coimbatore thereafter transferred the said appeal pending in his court to the district judge mysore at mysore for disposal in accordance with law. the civil judge decided the appeal on 21-12-1959, and it is against the said decree that the present second appeal is preferred.(5) two questions that arise in this appeal are, firstly whether the court of the district judge, mysore division, at mysore, is the 'corresponding court' to which the appeal stood statutorily transferred under s. 125 of the states reorganisation act, 1956, after 1-11-1956 and, secondly, whether the district judge, mysore division at mysore, had power to transfer the appeal to the civil judge at mysore and that the latter had jurisdiction to decide the same.(6) the facts to s.a. no. 3 of 1960 are as.....
Judgment:

(1) These appeals are heard together since they involve common questions of law. In order to understand the said questions, it is necessary to state the relevant facts.

(2) I shall first state the necessary facts relating to Second Appeal No. 243/1960. The appellants are defendants. Respondent-plaintiff, since deceased and now represented by her legal representative, instituted O.S. No. 174/52 in the Court of the Principal District Munsiff, Kollegal, for a declaration of her ownership to and possession of items 1 and 2 of the suit schedule properties. She also claimed past and future mesne profits and prayed that a charge be created over items 3 to 6 of the suit schedule properties for payment of the same. The value of the suit for purposes of jurisdiction was stated to be Rs. 1,221-4-0.

(3) Defendants denied her claim. The learned District Munsiff decreed the suit on 18-8-1954.

(4) The defendants preferred an appeal in the Court of the District Judge at Coimbatore. When the appeal was pending in that Court, the States Reorganisation Act of 1956(Act 37 of 1956) came into force in 1-11-1956, and the Kollegal Taluk of Coimbatore District became part of the new State of Mysore. The District Judge of Coimbatore thereafter transferred the said appeal pending in his Court to the District Judge Mysore at Mysore for disposal in accordance with law. The civil Judge decided the appeal on 21-12-1959, and it is against the said decree that the present second appeal is preferred.

(5) Two questions that arise in this appeal are, firstly whether the Court of the District Judge, Mysore Division, at Mysore, is the 'corresponding Court' to which the appeal stood statutorily transferred under S. 125 of the States Reorganisation Act, 1956, after 1-11-1956 and, secondly, whether the District Judge, Mysore Division at Mysore, had power to transfer the appeal to the Civil Judge at Mysore and that the latter had jurisdiction to decide the same.

(6) The facts to S.A. No. 3 of 1960 are as follows. The appellant instituted O.S. No. 151 of 1950 in the Court of the Principal District Munsiff at Kollegal on 23-11-1956 for a declaration that there was no completed contract, between him and the defendant, enforceable in law, and that the defendant should be restrained from enforcing the provisions of the Revenue Recovery Act or from resorting to the other powers for recovery from him of the alleged loss in respect of the said matter. He also claimed back certain amount from the defendant. The value of the suit for purposes of Court-fee and jurisdiction was stated to be Rupees 470.

(7) The defendant denied the plaint allegations and submitted that the plaintiff was not entitled to any relief. Plaintiff's suit was decreed on 30th August 1958.

(8) The defendant preferred an appeal in the Court of the District Judge Mysore Division, at Mysore on 5th January 1959 who transferred the same for hearing and disposal to the Civil Judge at Mysore on 21st January 1959, and the latter decided the appeal on 20th November 1959, dismissing the plaintiff's suit. Hence this appeal by the plaintiff.

(9) Thus it could be seen from the facts of this case that the original suit was filed in the Court of the Principal District Munsiff at Kollegal after 1-11-1956, and the appeal against the decree of the trial Court was preferred in 1959 in the Court of the District Judge, Mysore Division, at Mysore. So, in this case, there is no question of statutory transfer. But still the question is whether the Court of the District Judge Mysore Division, at Mysore, is the 'corresponding Court' in which the appeal was presented the other question is the same as arises in S.A. No. 243 of 1960.

(10) The facts in S.A. No.281 of 1960 are as follows: Respondent 1 plaintiff instituted O.S. No. 125/55 in the Court of the Principal District Munsiff at Kollegal for redemption and possession of the suit schedule land and for account, and the value of the suit for purpose of jurisdiction was stated to be Rs. 600.

(11) The first defendant decided the plaint allegations, and inter alia contended that the plaintiff had no right to sue and, therefore, he is not entitled to any relief.

(12) The suit was decided on 18th July 1956 and the appeal was preferred in the Court of the District Judge, Mysore Division, at Mysore on 15th January 1957, was transferred it for disposal to the Court of the Civil Judge Mysore on 20th March 1957, and the same was disposed of by him on 16th January 1960. It is against the said decree that this second appeal is preferred by defendant 1.

(13) Thus in this case also, the appeal against the decree of the District Munsiff at Kollegal was filed in the Court of the District Judge Mysore Division at Mysore, after 1-11-1956 and the question is whether the Court of the District Judge, Mysore Division at Mysore is the 'corresponding Court' to which the appeal was presented. The other question is the same as arises in S.A. No. 243 of 1960.

(14) Thus it would be seen that the appeal pending in the District Court at Coimbatore is transferred to the Court of the District Judge, Mysore Division, at Mysore, whereas in the other two the appeals from the decrees of the principal District Munsiff were directly presented in the Court of the District Judge, Mysore Division, at Mysore. And that is how, the two questions stated above arise for consideration.

(15) Now I shall first deal with the question whether the Court of the District Judge, Mysore Division at Mysore, is the 'corresponding Court' with relation to the facts in S.A. No. 243/60, to which the appeal pending in the Court of the District Judge at Coimbatore stood statutorily transferred, by virtue of the provision of S. 125 of the States Reorganisation Act, 1956.

(16) Part II of the States Reorganisation Act, 1956, deals with territorial changes and formation of new States. Section 7 appearing in that part relates to the formation of the new State of Mysore, and by virtue of Clause (d) of sub-section (1) of that section, Kollegal Taluk of Coimbatore District in the State of Madras became part of the new State of Mysore.

(17) Part IX of the said Act deals with legal and miscellaneous provisions. Section 120 of the States Reorganisation Act empowers the appropriate Government of the new State which, in this case, is the State Government of Mysore, to make, before the expiration of one year from the appointed day, such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary of expedient to facilitate application of any law in relation to the transferred territories and thereupon every such law, which becomes the 'existing law' as defined by Rule 2(1)(h) of the Mysore Adaptation of Laws Order, 1956, shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.

(18) Section 119, which concerns the territorial extent of laws, provides that the transfer of territories to the new State shall not affect the 'existing law' applicable to the said territory before 1-11-1956, and such law shall until otherwise provided for by a competent Legislature or other competent authority, apply to the transferred territories as if they were within that State immediately before 1-11-1956.

(19) Thus the effect of sections 119 and 120 of the States Reorganisation Act, 1956, is to save the 'existing laws' with such adaptations or modifications as the new State might make applicable to the territories transferred to it until altered, repealed or amended by a competent Legislature or other competent authority.

(20) The Government of Mysore, in exercise of the powers conferred by S. 120 of the States Reorganisation Act, made the order called. The Mysore Adaptation of Laws Order, 1956, and published the same under Notification No. A.L. 7 A.L.D. 2-56-1, dated the 1st November 1956. It came into force on the first day of November 1956; one of the laws that was adapted was the Madras Civil Courts Act, 1873, with the amendment. The said Madras Civil Court Act, 1873, contains 30 sections, and the amendment made by the Adaptation of Laws Order, 1956, was to the following effect:

'Section 30. After Section 30, insert 31. District Court for Kollegal Taluk. Notwithstanding anything contained in this Act, there shall be a District Court for Kollegal Taluk, and the District Court, Mysore Division, functioning under the Mysore Civil Courts Act, 1883(Mysore Act I of 1883), shall be the District Court for Kollegal Taluk.'

(21)Thus the Madras Civil Courts Act, 1873 was adapted with the amendment by adding section 31 to the said Act. The effect of such adaptation is that the Madras Civil Courts Act, 1873, with the amendment, becomes the 'existing law' as defined by the Mysore Adaptation of Laws Order, 1956, for the Kollegal Taluk.

(22) Under the Madras Civil Courts Act, 1873, the Civil Courts of the Madras Presidency subordinate to the High Court, as seen from S. 8 of the said Act, were the 'District Court' and the Courts of 'Subordinate Judges' and 'District Munsiffs'. The pecuniary jurisdiction of the District Munsiffs.' The pecuniary jurisdiction of the District Munsiff, as stated in S. 12 of the Act, extends to suits of which the amount or value of the subject-matter does not exceed five thousand rupees.

(23) Under section 13 of the Madras Civil Courts Act, an appeal lies to the District Court from the decree or order of the District Munsiff. Thus the appeals from the District Munsiff of the Kollegal Taluk lie to the District Court at Coimbatore and, on the appointed day i.e. on 1-11-1956, the appeal in question which was filed in the District Court at Coimbatore was pending in the said Court. Under S. 125 of the States Reorganisation Act, 1956, provision is made as to the 'pending proceedings' which term under clause (a) of sub-section (3) of section 125 of the States Reorganization Act includes appeal.

(24)Sub-section (1) of section 125 provides:

'Every proceeding pending immediately before the appointed day before a Court (other than a High Court), tribunal, authority or office in any area which on that day falls within a State shall, if it is a proceeding relating exclusively to any part of the territories which as from that day are the territories of another State or form a minor territory stand transferred to the corresponding Court, tribunal, authority or officer in the other State.'

Thus the appeal pending in the Court of the District Judge, Coimbatore, statutorily stood transferred to the 'corresponding Court' in the new State of Mysore since the appeal related exclusively to the territory which from 1-11-1956 formed part of the new State of Mysore. What 'Corresponding Court' means, has been stated in clause (b)of sub-section (3) of the said section. It is to the following effect.

'(b) Corresponding Court......in a state..... means--

(i)the Court,........... in that State..... in which or before whom the proceeding would have lain if the proceeding had been instituted after the appointed day, or

(ii) in case of doubt, such court..... in that State...... as may be determined after the appointed day by the Government of that State........or before the appointed day by the Government of the corresponding State............'

Thus the test to determine the 'corresponding Court' is stated in Clause (b)(i) of the said section, viz., that the corresponding Court in the new State is one in which or before whom the 'proceeding' would have lain if the 'proceeding' had been instituted after the appointed day i.e after 1-11-1956. The term 'proceeding', as already stated, includes an appeal as stated in clause (a) of sub-section (3) of section 125 of the States Reorganisation Act.

(25) The Madras Civil Courts Act, 1873, as amended, was adapted by the new State of Mysore, and the said Code being the 'existing law', applies to 'proceeding' which arises in the territory of Kollegal Taluk and if, after the 1st day of November 1956 an appeal were to be lain, then as provided by section 13 of the Madras Civil Courts Act, it would have lain to the District Court, Mysore Division, at Mysore which, under section 31 of the Mysore Civil Court Act, 1873, as amended was the District Court for Kollegal Taluk. Therefore the District Court, Mysore Division, at Mysore, which under S. 31 of the Madras Civil Courts Act as adapted, being the District Court for Kollegal Taluk, would be the 'corresponding Court' as defined by section 125, sub-section (3), clause (b)(i) of the States Reorganisation Act. The result of adding section 31 to the Madras Civil Courts Act by way of amendment is to provide a District Court for Kollegal Taluk, and it was provided by the said section that the District Court, Mysore Division, at Mysore. Therefore the District Court, Mysore Division, at Mysore, in so far as the appeals arising from the Kollegal Taluk, is the District Court for Kollegal Taluk, functioning under the Madras Civil Courts Act, 1873. Thus the State Government of Mysore has also determined that after 1-11-1956 the District Court, Mysore Division, at Mysore shall be the District Court for Kollegal Taluk. And this the State Government of Mysore was empowered to do by virtue of clause (b)(ii) of sub-section (3) of section 125 of the States Reorganisation Act. If so, that Court is the 'corresponding Court' within the meaning of sub-section (1) of S. 125 of the States Reorganisation Act as meant by cls. (b)(i) and (ii) of sub-section (3) of section 125 of the States Reorganisation Act.

(26) For these reasons, I hold that the Court of the District Judge, Mysore Division, at Mysore, which by virtue is section 31 of the Madras Civil Courts Act, 1873, as adapted by the State Government of Mysore being the District Court for Kollegal Taluk, is the 'corresponding Court' to which the appeal pending in the Court of the District Judge at Coimbatore stood statutorily transferred.

(27) The next question is whether the District Court, Mysore Division, at Mysore, functioning as District Court for Kollegal Taluk had the power to transfer the appeal to the Civil Judge at Mysore. This, in my opinion, has got to be determined, in accordance with the provisions of the Madras Civil Courts Act of 1873, as adapted by the State Government of Mysore, the same being the 'existing law'.

(28) Section 13 of the said Act empowers District Judge to refer any appeal from the decree or order of a District Munsiff preferred in the District Court, to any Subordinate Judge within the District. But this is of course, as stated in the proviso, subject to the orders of the High Court. It is not clear from the record whether the District Judge, Mysore Division, at Mysore, functioning as District Judge for Kollegal Taluk, has transferred the appeal under the Madras Civil Courts Act or under section 24 of the Code of Civil Procedure. All that is stated in the order of transfer is:

'.........as the appeal comes within the jurisdiction of the Civil Judge's Court, Mysore.

Transfer to Civil Judge's Court for disposal.' But it would be right to assume that he must have transferred it in accordance with the provisions of section 13 of the Madras Civil Court Act since there is a power to transfer, although it is subject to the order of the High Court. Hence there is no such order. But such a transfer, if at all, may be said to be irregular not affecting the merit of the case or the jurisdiction of the Court, since S. 13 in terms has conferred power of transfer on the District Judge. The order of the High Court need not precede the transfer. There is nothing to suggest that the order of the High Court is the condition precedent to the transfer.

(29) Even then, the question raised is, which is the 'High Court' subject to the orders of which the transfer could be made. It is contended by Mr. Ullal for the appellant that the 'High Court' must necessarily mean the High Court at Madras. But this, in my opinion, is not a correct submission. Section 52 of the States Reorganisation Act provides that the High Court for a new State shall have, in respect of any part of the territories included in that new State, all such original, appellant and other jurisdiction, as under the law in force immediately before the appointed day, is exercisable in respect of the said territories by any High Court for an existing state.

(30) Thus, it is clear that the High Court the new State of Mysore has the jurisdiction which it can exercise in respect of the territory of Kollegal Taluk from 1st November 1956. There is also clear from the provisions of section 62 of the said Act; that the High Court of Madras shall have no power or jurisdiction in respect of any territory transferred from the existing State to the new State of Mysore, subject of course to provisions of sub-section (3) of the said section. But the provisions of sub-section (3) of section 62 have no application to the facts of these appeals. Thus the combined effect of the provisions of section 52 and 62 is that the High Court of the new State of Mysore has the jurisdiction, such as original, appellate or other jurisdiction, which it can exercise in respect of the territory transferred to the new State of Mysore and, therefore, the order of transfer which under S. 13 is subject to the order of the High Court, means the order of this Court. And since the order of the High Court is not the condition precedent to the transfer, I hereby make the necessary order permitting the transfer subject to which the said transfer was to be made under the proviso to S. 13 of the Madras Civil Courts Act of 1873. Thus the irregularity, even if any, stands cured.

(31) Even otherwise, under S. 24 read with Section 6 of the Code of Civil Procedure, the District Court is given a general power of transfer of an appeal pending before it, for disposal to any Court subordinate to it which is competent to dispose of the same. In the instant case, the Civil Judge's Court at Mysore has both the pecuniary for jurisdiction. The appeals transferred are not those which the Civil Judge at Mysore is not empowered to dispose of.

(32) In any view of the matter, the District Court, Mysore Division, at Mysore, functioning as District Court for Kollegal Taluk had the power to transfer the appeal.

(33) The other question which arises is whether the District Judge, Mysore Division, at Mysore, functioning as the District Judge for Kollegal Taluk, could transfer the appeal to the Civil Judge at Mysore.

(34) In the hierarchy of the Civil Courts of the Madras Presidency subordinate to the High Court, the Subordinate Judge's Court was immediately below the District Court. But in the hierarchy of the Civil Courts of the State of Mysore subordinate to the High Court, the Civil Judge, Mysore Division, at Mysore, functioning as District Judge, Kollegal Taluk, would be competent to transfer the appeal to the Civil Judge at Mysore. It is here that a referred has got to be made, while determining the hierarchy of the civil Courts subordinate to the High Court to the Mysore Civil Courts Act of 1883. But this, in my opinion, is permissible, in view of S. 121 of the States Reorganisation Act which provides:

'Notwithstanding that no provision or insufficient provision has been made under S. 120 for the adaptation of law made before the appointed day, any Court, tribunal or authority required or empowered to enforce such law may, for the purpose of facilitating its application in relation to any State....... formed or territorially altered by the provisions of Part II, construe the law in such manner, without affecting the substance as may be necessary or proper in regard to the matter before Court, tribunal or authority.' Therefore, even if there is no or insufficient provision made under the Adaptation of Laws Order 1956, nonetheless it is not only permissible but section 121 clearly empowers the Court to construe the law in such a way as is necessary or proper without affecting the substance in regard to the matter before it for the purpose of facilitating the application of the provisions of the 'existing law'. And here the transfer of the appeal to the Court of the Civil Judge at Mysore does not affect the substance since he is competent to deal with the appeal.

(35) Here, it may be seen that a power has been given to the Government of the new State under S. 122 of the States Reorganisation Act, in respect of any new State or any territory transferred, to specify the authority, officer or persons who, as from the appointed day, shall be competent to exercise such functions exercisable under any law in force on that day. And under clause (b)(ii) of sub-section (3) of section 125 of the States Reorganisation Act, the Government of the new State is empowered in case of doubt in 'determine' the 'corresponding Court', and that is why the Government of the new State of Mysore, while adapting the Madras Civil Courts Act, 1873, by amending the said Act by adding section 31, 'determined' the 'corresponding Court'. The hierarchy of the Courts below him were not specified and, therefore, to that extent, it is permissible to look to the hierarchy of the Civil Courts under the High Court as mentioned in the Mysore Civil Courts Act of 1883. And it is here, with respect, I agree with the conclusion reached in the decision reported in A.L. Lingaraja Urs v. A. Basavaraja Urs, 1963(2) Mys LJ 456. Consequently, I hold that the District Judge, Mysore Division, at Mysore, and that the Civil Judge had the necessary jurisdiction to decide the said appeal.

(36) In the other two appeals, as I stated before, appeals to the District Court, Mysore Division, at Mysore, functioning as the District Court for Kollegal, were directly filed from the decrees of the District Munsiff, Kollegal, and as I have just now held, the District Court, Mysore Division, at Mysore, functioning as the District Court for Kollegal Taluk, is the 'corresponding Court', and the presentation. If so, the transfer of appeals made by it to the Civil Judge, for the reasons stated above, is also a valid transfer, and the Civil Judge had the necessary jurisdiction to decide them on merits.

(37) With the decision on the questions of law, the appeals will now be heard on merits.

(38) Order accordingly


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