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K.N. Panjawani Vs. T.N.K. Nayar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberOriginal Suit of K.N. Panjawani of 1982
Judge
Reported inAIR1984Kant140
ActsKarnataka High Court Act, 1961 (5 of 1962), Sections 4, 9 and 14; Constitution of India - Articles 215 and 225; Mysore High Court Act, 1884 - Sections 12; Slates Reorganisation Act, 1956 - Sections 52 and 57
AppellantK.N. Panjawani
RespondentT.N.K. Nayar and anr.
Appellant AdvocateP.S. Devadas, Adv.
Respondent AdvocateS.G. Bhavawan, Adv.
Excerpt:
.....question. , in the exercise of the original jurisdiction of the high court under this act' would clearly indicate that this court has got original jurisdiction only in respect of those matters which are provided by this act of 1962. it is not as if this court is a court of ordinary original civil jurisdiction in full measure. in some matters like writ matters, company matters, etc. section 3(3)(b) clearly says that the city civil court shall have jurisdiction to receive try and dispose of all suits and other proceedings of a civil nature and arising within the city of banagalore except suits or proceedings which, are cognizable by the high court and the court of small causes only the suits of proceedings which are cognizable by the high court under some laws have been expected from the..........bringing back the discredited ex. president shri k.v.s. pai as president of the mission etc.2. the city civil court situate at bangalore and all the other civil courts in the mofussil places in this state, were closed during dasara vacation. it is also undisputed that no vacation judge had been appointed during dasara vacation for the city civil court at bangalore and the subordinate civil courts in the state during the said vacation.3. the office of this court raised an objection that this court had no jurisdiction to entertain the suit during dasara vacation. the objections raised by the office were put up before me. this court made on order on 29-10-1982 thus : -'the office has raised an objection regarding the maintainability of the suit. all the civil courts are now closed for.....
Judgment:
ORDER

1. The respondent (hereinafter referred to a 'the plaintiff') had filed a suit against petitioners-1 and 2 (hereinafter referred to as 'the defendant') during Dasara vacation of 1982 seeking a declaration that the latter dated 2-10-1982 issued by the President Mrs. T.N.K.Nayar of Rama Sakti Mission. Mangalore, is illegal and invalid in law, and for a declaration that the notice dated 25-10-1982 issued by the Joint Secretary was also illegal and invalid in law, and also for a permanent injunction restraining the defendants from convening the meeting of the Governing Body on 2-1-1982 or on any other date, and for a permanent injunction restraining them from bringing back the discredited Ex. President Shri K.V.S. Pai as President of the Mission etc.

2. The City civil Court situate at Bangalore and all the other civil courts in the mofussil places in this State, were closed during Dasara vacation. It is also undisputed that no vacation Judge had been appointed during Dasara vacation for the city Civil court at Bangalore and the subordinate Civil Courts in the State during the said vacation.

3. The office of this court raised an objection that this Court had no jurisdiction to entertain the suit during Dasara vacation. The objections raised by the office were put up before me. This court made on order on 29-10-1982 thus : -

'The office has raised an objection regarding the maintainability of the suit. All the civil courts are now closed for vacation. Whether this Court would get jurisdiction to entertain matters of this nature on account o the subordinate courts being closed, is a matter that will have to be decided once for all. It requires a good deal of time to decide the point in question. The matter appears to be of some urgent nature. Therefore, till the said point is decided, it is ordered ad interim that the calling of the meeting on 2-11-1982 is stayed.'

4. Now the defendants have filed I.A. No. 2 under Order 39 R. 4 of the Civil P. C. requesting to vacation the stay alleging hat this Court is not a court of original jurisdiction and it could not entertain a suit of the present civil nature and thus it could not pass an ad interim order in question. The issue of the ad interim order of stay is also attacked by the defendants on various other grounds with which I am not concerned with at this stage. The argument now centers round the point as to whether this Court is a Court of original civil jurisdiction and whether it could entertain a suit of the present nature during Dasara vacation or winter vacation a suit of original jurisdiction during vacation. It has been held by the supreme Court in para 4 thus:-

'Exercise of Jurisdiction by the High Court of Mysore is governed by Mysore Act 5 of 1962. The Act is purely, regulatory Act enacted for regulating the business and exercise of the powers of the High Court in relation to the administration of justice: it does not purport to confer upon the High Court any jurisdiction original or appellate. It is true that by Section 12 of the Mysore High Court Act I of 1884 enacted by the Maharaja of Mysore to amend the constitution of the High Court of Mysore, and to provide for the administration of justice by that Court, the Government of Mysore was authorised by notification to invest the High Court with ordinary original civil Jurisdiction of a District Court in all suits of a civil nature exercisable within such local limits as the Government may from time to time declare and appoint in that behalf. But Section 12 of the Mysore Act 1 of 1884 has been repealed by S. 14 of Mysore Act 5 of 1962.'

6. The Supreme Court also held that this Court is primarily a Court exercising appellant jurisdiction. It also held that it is competent to exercise original jurisdiction only in those matters in respect of which by special Acts it has been specifically invested with jurisdiction. I also held that the High Court of Mysore not being invested by any statute or under its constitution with that jurisdiction was incompetent to entertain a passing off action.

7. However, the learned counsel Shri P. S. Devadas maintained that Sections 52 and 57 of the States Reorganisation Act and Articles 215 and 225 of the Constitution had not been considered by the Supreme Court while disposing of the said case. He also urged that the preamble to Karnataka Act 5 of 1962 and Sections 4 and q(iii) (4 the Karnataka High Court Act. had not been considered by the, Supreme Court in the said case.

8. Section 52 of the States Reorganisation Act reads thus : -

'Jurisdiction of High Courts for new States : -

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, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of that part of the said territories by any High Court or Judicial Commissioner's Court for an existing State.' Section 57 of the States Reorganisation Act reads thus:- 'Powers of judges:- The law in force immediately before the appointed day relating to the powers of the Chief Justice, single judges and division Courts of the High Court for the corresponding State and with respect to matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court for a new State.'

Therefore, on a reading of these two Sections, it appears to me that the jurisdiction exercised by the High Court prior to the coming into force of the I States Reorganisation Act was saved by these two Sections and the new High Court could exercise the jurisdiction which was being exercised by the erstwhile High Court situate in old Mysore area prior to the coming into force of the States Reorganisation Act. Before the States Reorganisation Act came into force, the High Court was existing in the old Mysore area and it was governed and regulated by the Mysore High Court Act I of 1884. Section 12 of the Mysore Act I of 1884 reads thus:-

'12 (1). The Government of Mysore may, whenever it deems fit, confer upon the High Court, by notification in the official Gazette, the ordinary original civil jurisdiction of a District Court in all suits and proceedings of a Civil nature, or the ordinary original criminal jurisdiction of a Sessions Court, or both such jurisdictions, to be exercised within such local limits as the Government may, from time to time, declare and appoint in that behalf'. (Underlining is mine).

No official Notification conferring the original jurisdiction on the pre-existing or erstwhile Mysore High Court has been brought to my notice. In the absence of any Notification contemplated by Section 12 of Mysore Act I of 1884, even the erstwhile High Court had no original jurisdiction at all. Therefore, when the erstwhile High Court regulated by Mysore Act I of 1884 had itself no jurisdiction, the question of savingthis jurisdiction even for the new High Court, does not arise at all. If the erstwhile High Court had got the original jurisdiction, then there would have been some scope to argue that by virtue of Sections 52 and 57 of the States Reorganisation Act, the new High Court regulated by Act 5 of 1962 would exercise original jurisdiction. As already stated above, there is no Notification as contemplated by Section 12 of Mysore Act I of 1884 conferring original jurisdiction on the erstwhile Mysore High Court. Therefore, Sections 52 and 57 of the States Reorganisation Act will not, be, of much help to the learned counsel Shri Devadas in this connection.

9. Section 14 of the Karnataka Act 5 of 11;62 has repealed Sections 11, 12, 13, 14, 15, 16, 16-A, 16-B, 20 and 22 of the Mysore High Court Act, 1884. Therefore, even Section 12 which enabled the Government to confer original jurisdiction on the erstwhile Mysore High Court, has been repealed by this Act. Therefore, it cannot be said that this Court by virtue of Section 12 of Mysore Act I of 1884 1has got the original jurisdiction.

10. Learned counsel Shri Devadas relied on Article 215 of the Constitution which reads thus:

'Every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself.'

The incidents of a Court of record are:(1) it has the power to determine questions about its own jurisdiction and (2) it has inherent power to punish for its contempt summarily. Every Court of record has got the jurisdiction to find out whether it has gat jurisdiction or not in a particular case. There is nothing in Article 215 of the Constitution to indicate that every Court of record is a Court Of original jurisdiction. Then, he relied on Article 225 of the Constitution which reads thus:-

'Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered In, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division 06urts, shall be the same as immediately before the commencement of this Constitution.'

Article 225 of the Constitution says that the jurisdiction of the High Court and] the respective powers of tile Judges would be the same as the ones which existed immediately before the commencement of the Constitution. As already shown above, even the erstwhile Mysore High Court was not a Court of original jurisiict4on. No Notification contemplated by Section 12 of Mysore Act I of 1881 conferring original jurisdiction has been brought to my notice. Therefore, Article 225 of the Constitution will not come to the rescue of the plaintiff in this case.

11. Then Shri Devadas relied on Sections 4 and 9 (iii) of Karnataka Act 5 of 1962. He quoted various rulings including Shamrao v. District Magistrate, Thana, (AIR 1152 SC 324); Banwari Dass v. Sumer Chand : [1974]3SCR358 and Sonia Bhatia v. State of U. P. : [1981]3SCR239 in support of the principle that the literary and grammatical interpretation is the' golden rule while interpreting the statutes. He quoted those rulings while relaying on Sections 4 and 9 (iii) of Karnataka Act 5 of 1962.

12. Section 4 of Karnataka Act 5 of 1962 reads thus:-

'4. Appeals from decisions of a single Judge of the High Court. -An appeal from a judgment, decree, order or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under any law for the time being 1n force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court.'

Shri Devadas contended that the use of the words 'original jurisdiction of the High Court' in Section 4 indicated that this Court was a Court of original jurisdiction. The wordings used in Section 4 viz., in the exercise of the original jurisdiction of the High Court under this Act' would clearly indicate that this Court has got original jurisdiction only in respect of those matters which are provided by this Act of 1962. It is not as if this Court is a Court of ordinary original civil jurisdiction in full measure. This Act of 1962 does not confer any original jurisdiction on this Court at all. In some matters like writ matters, company matters, etc., this Court has got original jurisdiction. It is only in respect of the orders passed in such matters that an appeal shall lie, to a Bench consisting of two other judges. Shri Devadas drew my attention to the wordings 'tinder any law for the time being in force'. These wordings in my opinion, only mean that any other law must have - conferred original jurisdiction on the High Court and that jurisdiction must have been exercised by a single Judge for the purpose of Section 4 and it is only against such an order made by the single Judge that an appeal has been provided. Therefore, Section 4 will not, in my opinion, indicate that this Court is a Court of original jurisdiction.

13. Then the learned counsel Shri Devadas relied, on Section 9 (iii) of Karnataka Act 5 of 1962 which reads thus:-

'9. Other powers of a single Judge:-

The powers of the High Court in relation to the following mattes, shall be exercised by a single Judge, provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two judges:-

(i), (ii) ........ ......... ........... .............

(iii) exercise of original jurisdiction undr any law for the time being in force.'

It only means that the original jurisdiction can be exercised by this Court provided some law confers original jurisdiction on this Court to hear the matters arising under that Act. If any other law does not provide for the conferment of the original jurisdiction on this Court then it would be rather idle to contend that this Court has still got the original jurisdiction under Section 9 (iii).

14. Learned counsel Shri Devadas quoted Reference under Art. 143 of the Constitution of India, : AIR1965SC745 . It was a case wherein the Legislature of U. P. had ordered that two Judges of the High Court of U. P. who had released K on bail, be brought in custody be fore it, for dealing with them for its contempt. These two Judges filed a petition under Article 226 contending that the resolution passed by the Assembly amounted to contempt of Court that it was wholly without jurisdiction, that it should be set aside and that by an interim, order its implementation should be stayed. On these petition, the Full Bench of the High Court ordered by a notice restraining the Speaker of the Assembly from issuing the warrant, in pursuance of the direction of the Assembly and from securing execution of the warrant if already issued. When the incidents reached this stage, the President of India decided to exercise his power to make a reference to the Supreme Court under Article 143(1). What was laid down in the said case is that the High Court being a Court of record, could determine whether it had got the jurisdiction or not.

15. Learned counsel Shri Devadas relied on para 138 of the case reported in : AIR1965SC745 . It reads thus:-

138 We ought to make it clear that we are dealing with the question of jurisdiction and are not -concerned with the, propriety or reasonableness of the exercise of such jurisdiction. Besides, in the case of a' superior Court of Record, it is for the Court to consider whether any matter falls within the jurisdiction or not. Unlike a Court of limited jurisdiction, the superior Court is entitled to, determine for- itself questions about its own jurisdiction. 'Prima facie', says Halsbury' no matter is deemed to be beyond the Jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court, unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court'.

Simply because this Court is a superior Court, its jurisdiction will not extend to all matters. The, jurisdiction is the authority by which a Court has to decide matters that are litigated before, it or to take cognizance of matters presented in a formal way for its decision. In all matters in which jurisdiction is conferred on this Court, its powers are unlimited. Therefore, the said wordings used in para 138 do not mean that this Court can confer upon itself the original jurisdiction when the very Act regulating the, business of this Court does not Provide for the conferment of original jurisdiction on it. To make the matter still clear, Section 2(4) of 'the Civil P. C. defines 'district' as:-

''district' means the local limits 0 the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a 'District Court'), and includes the local limits of the ordinary original Civil jurisdiction' of a High Court.' Section 3(3) of the Karnataka Act 13' of '1930 which, created a City Civil , Court for the City of Bangalore reads thus:-

'3. Establishment of a City Civil Court :-

(1) As from the appointed date there shall be a City Civil Court for the City of Bangalore.

(2) The City Civil Court shall consist of a Principal City Civil Judge and such number of other City Civil Judges as the State Government may, in consultation with the High Court, determine

(3) Notwithstanding anything contained, in any law, the City Civil Court:-

(a) shall be deemed to be the principal city civil, Court of original jurisdiction in the City of Bangalore.

(b) shall have jurisdiction to receive, try and dispose of 'all suits and other ,pr6ceedigs of a civil nature and arising within the City of Bangalore except suits or proceedings which are cognizable by the High Court and the Court of Small Causes.'

Therefore this Section . makes it amply clear that the City Civil Court situate at Bangalore is the only Court, of ordinary original civil jurisdiction in. Bangalore City. Thus the. High Court cannot usurp the, powers, of the, City Civil Court in respect of the original civil jurisdiction matter's. Section 3(3)(b) clearly says that the City Civil Court shall have jurisdiction to receive try and dispose of all suits and other proceedings of a civil

nature and arising within the City of Banagalore except suits or proceedings which, are cognizable by the High Court and the Court of Small Causes only the suits of proceedings which are cognizable by the High Court under some laws have been expected from the jurisdiction of the City Civil Court. Therefore this is a clear provision to show that this Court is not a Court of ordinary civil jurisdiction and it has got original civil

jurisdiction only in these proceedings of civil nature which can be take cognizance of by, this Court under some laws passed by the Legislature. Similar provision has been made in the Karnataka Civil Courts' Act (Act No. 21- of 1964). Section 14 of the Civil Courts Act reads thus:-

'14 Jurisdiction of District court : -

(1) The District court shall be deemed to be the principal Civil Court of original jurisdiction within the local limits of its jurisdiction.'

This is also a provision to show that it is only the District Court in the mofussil place that has got the ordinary original civil jurisdiction. Therefore the intendment of the la w is quite clear that the, City Civil' Court in Bangalore City and the District Courts in the mofussil places are the only Courts of ordinary original civil jurisdiction. These two provisions would show that even by implication this Court cannot be considered to be a Court of ordinary original civil jurisdiction.

16. Then the learned counsel Shri Devadas contended that the Karnataka Civil Courts Act, 1964, and the Bangalore City Civil Courts Act, 1979, do not make any provision for the appointment of a vacation Judge during winter vacation and Dasara vacation. Thus, according to him the extraordinary situation arising on account of not providing for a vacation Judge by the said Acts during Dasara and winter vacations, would demand of this Court to exercise the original jurisdiction during the said vacations. This argument of the learned counsel Shri Devadas is met by the ruling reported in Raja. Soap Factory's case. Para 9 of the said judgment reads thus:-

(9) Reliance was sought to be placed upon the summary. of a judgment dated June 6, 1962 in a case decided by Narayana Pai, J. : Kaverappa v. Narayanaswamy, which is found printed under the heading 'Short Notes of Recent Decisions' in 1962-40 Mys Li (SN) 1. The learned Judge is reported to have observed that Section 24 of the Civil P, C. 'read along with Section 151 which preserves to the High Court all inherent powers to make such orders as may be necessary for ends of justice necessarily implies that whenever an extraordinary .situation so requires, a High Court may confer original jurisdiction upon itself to do or protect ends of justice'. It does not appear that in any series of unauthorized - and we have not been supplied with a copy o the original judgment. But if the learned Judge, as reported in the summary of the judgment, was of the opinion that the High court is competent to assume to itself jurisdiction which it does not otherwise possess, merely because an 'extraordinary situation has arisen, with respect to the learned Judge, we are unable to approve of that view. By 'jurisdiction' is meant the extent of the power which is conferred upon the Court by its constitution to try a proceeding, its exercise cannot be enlarged because what the learned Judge calls an extraordinary situation 'requires' the Court to exercise it.'

17. It is not the extraordinary situation that would confer jurisdiction upon this Court. The business of this Court is regulated by Karnataka Act 5 of 1962. Whatever be the extraordinary situation, this Court cannot assume to itself ordinary original civil jurisdiction. Therefore. the said argument advanced by Shri Devadas also fails.

18. Before parting with this case, I would like to say a few words. Unfortunately under the Bangalore City Civil Court Act, 1979 and the Karnataka Civil Courts Act, 1964, no provision has been made for the appointment of a vacation Judge during Dasara vacation and the winter vacation. Provision has been made for the appointment of a vacation Judge only during summer vacation. Some extraordinary situation may arise during Dasara and winter vacations when the party may require the assistance of a Court of ordinary original civil jurisdiction. In the absence of any provision in these two Acts for the appointment of a vacation Judge during Dasara and winter vacations, no Judicial Officer can be appointed in the subordinate Court as a vacation Judge during these two vacations. It is quite high time and the interest of justice also demands that the said two laws need to be suitably amended in order to make a provision for the appointment of a vacation Judge during winter and Dasara vacations also. A copy of this order may be sent to the Government for taking necessary and immediate steps in the matter.

19. Thus it follows that this Court was incompetent and thus had no jurisdiction to entertain the present suit at all even during the Dasara vacation. Therefore, the presentation of the plaint in this Court is bad at law. The interim order of stay granted by this Court is one passed without jurisdiction. A judgment or order delivered by a Court not competent to deliver it, e.g., by a Court which has no jurisdiction, is a mere nullity. Therefore, the interim order of stay granted by this Court is void and had at law and no effect in the eye of law, The stay order dated 29-10-1982 granted by this Court is hereby vacated. Thus 1. A. II is allowed.

20. Then the next question may arise as to what should be done when the plaint is received by this Court having no jurisdiction at all and the interim order of stay has been granted by this Court Order 7 Rule 10 of the Civil P.C. has provided for such a situation. Order 7, Rule 10, of the Civil P. C. says thus:-

'10 (1): Subject to the provisions of Rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.'

Order 7 Rule 10A (3) provides for the return of the plaint when it is found that is has no jurisdiction to try the suit. Therefore, the plaint will have to be returned to the plaintiff for being presented in a proper Court. Rule 10A (1) requires that the intimation of the return of the plaint should be given to the plaintiff and the plaintiffs counsel who is present is accordingly informed about the return of the plaint. Rule 10A (2) (a) requires that the Court in which he proposes to present the plaint after its return should be specifies.

21. Now as required by Order 7 Rule 10A (2) of the Civil P. C., the plaintiff may make an application to this Court specifying The Court in which he proposes to present the plaint after its return and also praying that the Court may fix a date for the appearance of the parties in the said Court and also requesting that the notice of the Court should be given to him etc., etc.

22. Costs in the petition shall be the costs in the suit.

23. Order accordingly


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