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Lokappa and anr. Vs. Narayana - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 362 of 1972
Judge
Reported inAIR1973Kant197; AIR1973Mys197; (1973)1MysLJ16
ActsMysore Civil Courts Act, 1964 - Sections 28
AppellantLokappa and anr.
RespondentNarayana
Appellant AdvocateK.S. Savanur, Adv.
Respondent AdvocateT.J. Chouta, Adv.
Disposition Appeal dismissed
Excerpt:
.....and other proceedings pending in or cognizable by sny civil court in the same manner as vacation civil judge is competent to do by virtue of the express statement contained in clause (b) of sub-section (4) of section 28. 4. section 28 of the mysore civil courts act, 1964 is a section which makes provision for disposal and despatch of judicial as well as administrative work during the vacation. that is precisely the reason why in clause (a) of sub-section (4) it is stated that the local limits of the jurisdiction of the vacation district judge or vacation civil judge shall be the same as those of the district court concerned. on the basis of the mutation entry as well as the receipt dated 18th january 1970 executed bv the plaintiffs vendor ramachandrappa bhagubal come to the conclusion..........'(4) (a) the local limits of the jurisdiction of the vacation district judge or vacation civil judge shall be the same as those of the district court concerned. (b) the jurisdiction of the vacation civil judge shall extend to all suits, appeals and other proceedings pending in, or cognizable by any civil court (whether a district court, a civil judge's court or a munsiff court) in the district concerned when such court is adjourned for summer vacation.' it was submitted by shri savanur that clause (b) of sub-section (4) of section 28 only states that the vacation civil judge has jurisdiction to entertain all suits, appeals and other proceedings pending in, or cognizable by any civil court in the district. it was submitted that no such provision is made, conferring jurisdiction.....
Judgment:

V.S. Malimath, J.

1. This is a plaintiffs appeal under Order 41. Rule 1 (r) of the Code of Civil Procedure against the order passed by the Vacation District Judge dated the 17th of May, 1972 on I. A. No. 1 in O. S. No. 13 of 1972. The appellants-plaintiffs instituted the suit on the 22nd of April. 1972 in the Court of Vacation District Judge, Dharwar for a permanent injunction restraining the defendant from interfering with their possession and enjoyment of the suit land, measuring an extent of 3 acres 37 guntas. On the same day. the appellants obtained an ex parte order of injunction in their favour. The respondent thereafter, filed his objections and the matter was finally heard by the Vacation District Judge himself. The learned Vacation District Judge passed an order on the 17th of May, 1972 and vacated the interim order of injunction in so far as it pertained to an extent of 2 acres 37 guntas. which extent of land was claimed by the respondent defendant to be in his possession. The interim order of injunction was. therefore, confirmed only in respect of the remaining extent of 1 acre. Hence this miscellaneous first appeal by the plaintiffs.

2. Shri K. S. Savanur. learned counsel for the appellants, submitted that the learned Vacation District Judge had no jurisdiction to entertain the suit and to make an interim order in the same. It may be noted here that the appellants themselves filed the suit before the Vacation District Judge and moved him for grant of interim order of injunction in their favour. They were also able to secure an interim order of injunction in their favour. It is when the learned Vacation District Judge modified the interim order that the plaintiffs have challenged the said order in this Court.

Though this contention raised by the appellants is inconsistent with the stand taken by them in invoking the jurisdiction of the Court of the Vacation District Judge, I will not be justified in overruling the contention raised by Shri Savanur on that ground, inasmuch as jurisdiction cannot be conferred on a Court by consent of parties.

3. The argument of Shri Savanur was constructed entirely on the language of Sub-section (4) of Section 28 of the Mysore Civil Courts Act. 1964 which reads as follows:--

'(4) (a) The local limits of the jurisdiction of the Vacation District Judge or Vacation Civil Judge shall be the same as those of the District Court concerned.

(b) The jurisdiction of the Vacation Civil judge shall extend to all suits, appeals and other proceedings pending in, or cognizable by any Civil Court (whether a District Court, a Civil Judge's Court or a Munsiff Court) in the District concerned when such Court is adjourned for summer vacation.'

It was submitted by Shri Savanur that Clause (b) of Sub-section (4) of Section 28 only states that the Vacation Civil Judge has jurisdiction to entertain all suits, appeals and other proceedings pending in, or cognizable by any Civil Court in the district. It was submitted that no such provision is made, conferring jurisdiction on the Vacation District Judge to entertain suits, appeals and other proceedings pending in. or cognizable by any Civil Court in the district concerned, when the Court is adjourned for summer vacation. If in Clause (b) the Vacation District Judge was also included, it is obvious there would not have been any scope for the argument which is now advanced by Shri Savanur, The question for consideration, therefore, is as to whether merely because there is no specific provision similar to Clause (b) of Sub-section (4) of Section 28 in regard to the Vacation District Judge, can it be said that the Vacation District Judge has no jurisdiction to entertain suits, appeals and other proceedings pending in or cognizable by sny Civil Court in the same manner as Vacation Civil Judge is competent to do by virtue of the express statement contained in Clause (b) of Sub-section (4) of Section 28.

4. Section 28 of the Mysore Civil Courts Act, 1964 is a section which makes provision for disposal and despatch of judicial as well as administrative work during the vacation. Sub-section (1) of Section 28 states that the Civil Courts in the State or in any area of the State shall be closed on such days as may be notified by the State Government as public holidays for the whole State or for such area in the State. Sub-section (2) states that the Civil Courts shall have three vacations in each year, namely. Summer. Dasara and Winter, the period of which is required to be fixed by the High Court, subject to the maximum prescribed. Subsection (3) makes provision for the appointment of a Vacation District Judge or Vacation Civil Judge. Clause (a) of Subsection (3) empowers the High Court, where there are more than one District Judge in any district, to designate by notification, any one of those District Judges as Vacation District Judge for tha duration of the adjournment of any District Court in summer. Clause (b) of Sub-section (3) empowers the State Government to appoint a Vacation Civil Judge, in consultation with the High Court for the duration of the adjournment of the District Court in summer vacation. The said provision empowers the High Court, to regulate, by special or general order, the work to be discharged by the vacation Civil Judge. Clause (a) of Sub-section (4) provides that the local limits of the Vacation District Judge or Vacation Civil Judge shall be the same as those of the District Court concerned. Clause (b) of the said sub-section provides that the jurisdiction of the Vacation Civil Judge shall extend to all suits, appeals and other proceedings pending in, or cognizable by any Civil Court (whether a District Court, a Civil Judge's Court or a Munsiff's Court) in the District concerned when such Court is adjourned for summer vacation. Sub-section (5) provides that the place at which the Court of the Vacation District Judge or the Vacation Civil Judge shall be held shall be the same as the place at which the District Court concerned may be held. It further provides that Vacation District Judge or the Vacation Civil Judge shall have such administrative control over the staff of the several Civil Courts in the District as the High Court may by general or special order, determine. Subsection (6) provides that notwithstanding the appointment of the Vacation District Judge or the Vacation Civil Judge, every Civil Court in the District shall, during the period it is adjourned for summer vacation, be deemed to be closed for the purpose of Section 4 of the Limitation Act. 1963. Sub-section (7) provides that en the reopening of the District Court, a Court of a Civil Judge or a Munsiff's Court, after the summer vacation, all suits, appeals and other proceedings pending in the Court of the Vacation District Judge or Vacation Civil Judge which, but for this section, would have been instituted or pending in such District Court, Court of Civil Judge's or Munsiffs Court, as the case may be. shall stand transferred to such District Court, Court of Civil Judge or Munsiff's Court, and any decree. order or proceeding passed by the Vacation District Judge or the Vacation Civil Judge shall, after such transfer, be deemed to be a decree, order or proceeding passed by the Court concerned. Sub-section (8) provides that notwithstanding the provisions of Sub-section (7) any appeal from the decree or order of the Court of the Vacation District Judge or the Vacation Civil Judge, shall, when such appeal is allowed by law, lie to the High Court.

5. It is clear from the scheme of Section 29 that detailed provisions are made for the entertainment of suits appeals and other proceedings and disposal of the same during the summer vacation, so that the parties who need immediate redress during the summer vacation are not put to undue inconvenience and hardship as a result of the Courts being closed during the summer vacation. In my opinion, all the sub-sections of Section 28 have to be read together in order to ascertain as to whether the Vacation District Judge has jurisdiction to entertain suits and other proceedings and pass interim orders during the summer vacation. It is not disputed that if a vacation Civil Judge was appointed in this case, he could have entertained the suit and dealt with the interlocutory matters. The submission of Shri. Savanur is that there is a lacuna in Section 28 in that no clear and specific provision has been made pertaining to Vacation District Judge, similar to the one contained in Clause (b) of Subsection (4) of Section 28 in which clear and specific provision has been made in regard to the jurisdiction of the Vacation Civil Judge, Though there is no provision pertaining to Vacation District Judge similar to one contained in Clause (b) of Subsection (4). it is clear from the reading of the other sub-sections in Section 28 that the Vacation District Judge can also exercise jurisdiction to entertain all suits appeals and other proceedings pending in or cognizable by any Civil Court in the District concerned during the summer Vacation.

6. If the contention of Shri Savanur is accepted, the appointment of Vacation District Judge under Sub-section (3) of Section 28 would be meaningless. It is clear from Sub-section (3) that when there are more than one District Judge in a district, one of those District Judges may be designated as a Vacation District Judge during summer vacation. It is only in district where there is only one District Judge that the State Government Is empowered to appoint for such district, a Vacation Civil Judge in consultation with the High Court. If the contention of Shri. Savanur is accepted that under Section 28. as it now stands, in all districts where there are more than one District Judge, none can function during the summer vacation. But. the very purpose of Clause (a) of Sub-section (3) in designating one of the District Judges as a Vacation District Judge is to clothe him with the jurisdiction to entertain suits, appeals and other proceedings pending in, or cognizable bv any Civil Court in the district so that the litigant public is not put to inconvenience as a result of the closing of the Courts during summer vacation. That is precisely the reason why in Clause (a) of Sub-section (4) it is stated that the local limits of the jurisdiction of the Vacation District Judge or Vacation Civil Judge shall be the same as those of the District Court concerned. Besides it is necessary to see that Subsection (7) provides that all suits, appeals end other proceedings pending in the Court of the Vacation District Judge or Vacation Civil Judge shall stand transferred to the appropriate Court after the cessation of the summer vacation. Subsection (8) further provides that as appeal from the decree or order of the Vacation District Judge or Vacation Civil Judge shall, when such appeal is allowed by law, lie to the High Court. The clear effect of Sub sections (3), 4(a), (7) and (8) of Section 28 is that the Vacation District Judge, when he is designated as such by the High Court under Clause (a) of Subsection (3) of Section 28 gets clothed with the jurisdiction to entertain all suits, appeals and other proceedings pending in, or cognizable by any Civil Court in the District concerned, during the summer vacation. In my opinion, that is the clear intendment of Section 28. If the contention of Shri Savanur is accepted, the provisions of Clause (a) of Sub-section (3) Clause (a) of Sub-section (4) Sub-section (7) and Sub-section (8) in so far as they refer to Vacation District Judge would be rendered nugatory. On consideration of the entire scheme of Section 28. I have no hesitation in holding that the Vacation District Judge has jurisdiction to entertain all suits, appeals and other proceedings pending in, or cognizable by any Civil Court in the District concerned during the summer vacation. I do not therefore, accede to the contention of Shri Savanur that the learned District Judge had no jurisdiction to entertain the suit or to make an interim order,

7. It wag next urged by Shri Savanur that the Court below was not justified in modifying the interim order of injunction and restricting the same to only an extent of 1 acre. The learned Vacation District Judge has. on the basis of the mutation entry as well as the receipt dated 18th January 1970 executed bv the plaintiffs vendor Ramachandrappa Bhagubal come to the conclusion that the respondent is in possession of an extent of 2 acres 37 guntas out of the land which measures 3 acres 37 guntas. The learned Vacation District Judge has, on the basis of material on record, come to the conclusion that the respondent is in prima facie Possession of an extent of 2 acres 37 guntas. That finding cannot be said to be erroneous at this stage. We are not concerned et this stage with the question as to whether the tenancy set up by the defendant is contrary to law. If the defendant is in possession the plaintiffs would not be entitled to an order of injunction in their favour.

8. For the reasons stated above, this appeal fails and the same is dismissed. No costs.


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