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T.V. Subba Rao Vs. T. Koteswara Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 671 of 1959
Judge
Reported inAIR1963AP37
ActsCode of Civil Procedure (CPC), 1908 - Sections 3, 4, 4A, 5, 5(1), 43, 115, 141 and 373; Madras Hereditary Village Offices Act, 1895 - Sections 13, 13(1), 13(2), 15(4) and 21; Constitution of India - Article 136, 227 and 227(1); Madras Agriculturists Relief Act, 1938 - Sections 15(4); N.W.P. Rent Act, 1881; General Clauses Act, 1897 - Sections 3(24); Debt Conciliation Act - Sections 25; Government of India Act - Sections 224; Madras Local Boards Act - Sections 57; Companies Act
AppellantT.V. Subba Rao
RespondentT. Koteswara Rao
Appellant AdvocateB. Rajabhushana Rao, Adv.
Respondent AdvocateJ. Eswara Prasad, Adv.
DispositionRevision petition dismissed
Excerpt:
.....dealing with suits under section 13 are not subordinate to high court - above authorities are civil courts under section 3 having power to decide dispute of civil nature - held, all courts and tribunals which exercise jurisdiction in territory upon which high court has jurisdiction are subordinate to it. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of..........to such high court' must be read in that light. as it is a general section applicable to all high courts and as the object of the legislature is to give revisional jurisdiction to the high court only in respect of courts within its jurisdiction and not outside it, this purpose was achieved by the employment of the expression 'by any court subordinate to such high court'. it could not obviously have been the intention of the legislature to recognise the existence of courts within the territorial jurisdiction of the high court which are not subordinate to the high court.it must be clearly understood 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.....
Judgment:
ORDER

Sanjeeva Row Nayudu, J.

1. This revision petition is directed against the judgment and order of the District Collector of Kurnool, dated 18th January 1959, in R.S.A. 1 of 1958 reversing the judgment and order of the Revenue Divisional Officer's Court, Markapur, in R.P. No. 1 of 1958 on the file of the said Court.

2. This revision is preferred under Section 115 of the Civil Procedure Code. The facts leading up to this revision may be briefly noticed. The petitioner herein is the defendant in Revenue Suit No. 5 of 1954 in the Court of the Collector (Revenue Divisional Officer) Markapur, and the respondent is the plaintiff in that suit. That suit was brought under Section 13(1) of the Madras Hereditary Village Offices Act (Act III of 1895) (hereinafter referred to as the Act) wherein he claimed his right to the office of Karnam of Papinepalli, Kambham Taluk, Kurnool District. After the appearance of the defendant, the suit was posted for hearing to 1-12-1957. As that date was not convenient for the plaintiff and as he was apparently not likely 10 be ready on that day, he appeared before the Dy. Collector, Markapur and applied by way of a petition for an adjournment of the suit to some date beyond 1-12-1957. The suit was accordingly adjourned by the Dy. Collector to 13-12-57 and on that date as the plaintiff had not appeared when, the suit was called, the same was dismissed for default of the plaintiff's appearance.

3. Coming to know of the dismissal of his fait for default, the plaintiff-respondent applied for restoration of the suit under Rule 38 of the Rules framed under the Act. This application was dismissed by the Collector on 31-3-1958 holding that the plaintiff must have been aware of the date of hearing, and that his absence, therefore, when the suit was called must have been wilful and as such he could not have sufficient cause to be absent. Against this judgment and order of Collector, Markapur, an appeal was filed before the District Collector, Kurnool, who is the appellate authority under Rule 38 of the Rules framed under the Act, The District Collector allowed the appeal, set aside the order dismissing the suit for default and directed the Collector, Markapur to proceed with the hearing of the suit on its merits. The learned District Collector held that there was no satisfactory proof that the plaintiff was aware of the date to which the suit was adjourned for hearing viz., 13-12-1957 or that the plaintiff had been informed of that date by the Collector. He further was of the view that although there was evidence that a letter of intimation of the adjourned date of hearing was posted to the plaintiff, there is nothing to show that it has actually been received by him. His accordingly held that there was sufficient cause for the absence of the plaintiff on 13-12-57, the date of the hearing of the suit and so holding, he set aside the order dismissing the suit for default and directed the Dy. Collector. Markupur i.e., the Revenue Divisional Officer, to hear and dispose of the suit on its merits. It is this order of the District Collector. Kurnool, that it questioned before me in this revision petition.

4. At the outset a preliminary objection was raised by Mr. Eswara Prasad, the learned advocate for the respondent, viz., that the revision petition does not tie; that Section 115 C.P.C. cannot be invoked in this case; that the Collector (R.D.O.) and the District Collector cannot be regarded as Civil Courts, and, at any rate, as Courts subordinate to the High Court, and that, therefore, this Court's powers under Section 115 C.P.C. cannot be made use of for purposes of interfering with the judgment and order of the District Collector. Kurnool in this case. Elaborate arguments were advanced on the preliminary objection. As already briefly noticed, this objection is based on the following grounds: (1) that neither the Revenue Divisional Officer i.e., the Collector, Markapur, nor the District Collector, Kurnool constitute a Civil Court (2) even if either of them could be regarded as a Court they are not civil Courts and the Civil Procedure Code would not therefore apply to them; and (3) even it these bodies could be regarded as Courts, or Civil Courts, they arc not Courts subordinate to the High Court and, therefore, the essential requisite of Section 115 is not fulfilled and hence the decisions of these Courts are not liable to be revised by the High Court under Section 115 C.P.C. Before I deal with the various grounds urged in support of the objection, it is necessary to notice the language employed in Section 115, C.P.C. This section is as follows:

'The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit'.

5. It may be seen from the above that the section applies provided the following conditions are fulfilled: (1) There should be a decision in a case by a Court; (2) That Court should be subordinate to the High Court concerned; (3) No appeal could have been made to the High Court in the case; and (4) One or other of the requirements in Clauses (a), (b) and (c) should be shown to be present.

6. This directly takes us to the consideration of the question whether the Collector, before whom a suit was filed under Section 13(1) of the Act, and the District Collector to whom an appeal is preferred against the decision in that suit, could be regarded as Courts within the meaning of the section.

7. The expression 'Court' is not defined in the Civil Procedure Code nor in the General Clauses Act. There is a definition in the Indian Evidence Act which is more an inclusive definition. It is as follows;

''Court' includes all Judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence'.

For the purposes of this definition, any person, even though he is not a Judge or a Magistrate and who is not an arbitrator, would be a Court if he is legally authorised to take evidence. The scope of the expression 'Court' came up for consideration in quite a few decisions. Before I advert to the same, it may be mentioned that ordinarily a body or tribunal would be a Court provided it has the legal power (1) to record evidence and (2) to make a decision on a matter in contest or issue between two opposite parties so as to bind the parties before it: in law. The same idea may also be expressed by stating lhat a Court is a body exercising judicial functions under the authority of law.

8. In Nilmoni Singh Deo v. Taranath Mukerjee, ILK 9 Cal 295 the Privy Council had to consider whether Rent Courts exercising jurisdiction under the Bengal Act X of 1859, could be regarded as Civil Courts and their Lordships held that the Rent Courts under that Act were Civil Courts and subject to the jurisdiction of the High Court.

9. In Rajdh of Venkalagiri v. Mahaboob Saheb, AIR 1944 Mud 139 the question came to be considered at some detail. The question there was whether the Collector exercising the special jurisdiction or the power conferred by the Madras Agriculturists Relief Act (IV of 1938) could be regarded as a court subject to the revisional powers of the High Court. The learned Judges therein held that the Collector exercising powers under the Agriculturists Relief Act acts as a Court and that that Court being charged with the duty of deciding rights of a Civil nature must be regarded as a Civil Court, and that that Court is subject to the revisional jurisdiction of the High Court. The following observations may be referred to with advantage;

'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'. 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. It is very difficult to suppose that the Legislature in enacting, us part of a consolidating Code, a provision dealing with the subordination of Courts in the hierarchy of Civil Courts in the country, could possibly have left out of account an important class of Courts dealing with class of Courts dealing with particular kinds of Civil Proceedings assigned to them by special or local laws.

This conclusion is, we think supported by the decision of the Privy Council in ILR 9 Cal 295 (PC). We are of opinion that the expression 'Civil Courts' must receive the same meaning in Section 3 of the Present Code. The whole argument against this view of Section 3 has been based on Sections 4 and 5 corresponding to which there were no provisions in the Code of 1859. But as pointed out in Aga Mahomed Hamadani v. Cohen, ILR 13 Cal 221 with reference to Section 4 the meaning of that kind of saving clause is that if anything in the Code is found to conflict with any special or local law, the Code shall not prevail to override the inconsistent provisions of such law. There is nothing in the Madras Agriculturists Relief Act inconsistent with the view that a Collector acting under Section 15(4) of that Act as a Civil Court within the Code, and Section 4 can, therefore, have no bearing on the construction of Section 3. As for Section 5, it deals with the application of the Code to revenue Courts and enables the Provincial Government, 'where any revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent;' to declare that any portions of the Code shall not apply to such Courts or shall only apply with such modifications as may be prescribed. For this purpose, it was necessary to define a 'Revenue Court' and Sub-section (2) naturally excludes from the defini turn the ordinary Civil Court exercising original jurisdiction under the Code. This however, hardly justifies in our opinion, any general implication that a 'revenue Court' is not a 'Civil Court' within the meaning of the Code, and we see no reason to import the distinction into the construction of Section 3. On the other hand, the opening words of Section 5(1) assume that revenue Courts are governed by the Code in those matters of procedure upon which any special enactment applicable to them is silent. This can only be because the Code regards these Courts either as being 'Courts of Civil Judicature' the procedure of which is regulated by it (See the preamble) or as being 'Courts of civil jurisdiction' within the meaning of Section 141. A reference to the history of Section 5 makes the position reasonably plain. The decision of their Lordships in ILR 9 Cal 295 (PC) was given just a few months after the Code of 1882 was passed. In 1883, a Full Bench of five Judges of the Allahabad High Court had to consider whether Sections 43 & 373 of the Code were applicable to proceedings before the rent courts established under the N.W.P. Rent Act 1881, & the learned Judges by a majority of four to one followed the judgment in ILR 9 Cal 295 (PC), and answered the reference by saying that the revenue Courts of these provinces in those matters of procedure upon which the 'Rent Act' is silent are governed by the provisions of the Civil Procedure Code............In 1885, the Calcutta High Court in Adhirani Narain Kumari v. Maha-patro, ILR 12 Cal 50 followed the Allahabad decision. These decisions led to the introduction of Section 4A (corresponding to the present Section 5) in the Code of 1882 by Act 8 of 1888, in order, evidently to make the position as enunciated by the Allahabad Full Bench clear by legislation, adopting the very language used by the learned Judges. So far, therefore, from Section 5 affording any ground for supposing that a general distinction between civil and revenue Courts is maintained in the Code, it strongly supports the view that the Code is applicable to revenue Courts also except, of course, where it is excluded by any special or local law or by any inconsistent provisions of such law or by notification by the provincial Government. It follows that the declaration of the relative subordination of 'Civil Courts' in Section 3 for the purposes of the Code must be taken to cover revenue Courts as well in the absence of any saving of such Courts, and they must be deemed to be subordinate to the High Court and subject to its revisional jurisdiction under Section 115.'

Lower down the learned Judges observed as follows:

'The question of subordination being one of status and authority the nature and quality of the jurisdiction of the High Court as 'a Court of appeal from the Civil Courts of the Presidency' must be the determining factor and not the actual exercise of appellate jurisdiction in cases brought from such Courts. This aspect is emphasised by the definition of 'High Court' in the General Clauses Act, 1897. already referred to as 'the highest Civil Court of Appeal' with reference to civil proceedings, which necessarily implies the subordinate status of the other Courts dealing with civil proceedings in a provincial area. It being agreed on all hands that revenue Courts are 'civil Courts' within the meaning of Clause 16 and the proceedings before them 'civil proceedings' we fail to see why the subordination of such Courts should not be deduced from these provisions without having to find from an examination of the special or local statutes establishing such Courts, whether an appeal actually lies thereunder to the High Court or to a Civil Court subordinate thereto. Indeed, reading Clause 16, Letters Patent, Section 3(24) General Clauses Act, 1897, the preamble and Sections 3 - 5, Civil Procedure Code in the light of the Privy Council decision in ILR 9 Cal 295 (PC), it seems to us reasonably clear that Section 3 was intended to declare, as a matter of corollary, the relative status and authority of all Courts including revenue Courts in the hierarchy of 'civil Courts' of which the High Court forms the apex.'

Accordingly their Lordships held that the Sub Collector's order under Section 15(4) of the Madras Agriculturists' Relief Act, and the District Collector's order purporting to set it aside are open to revision by the High Court under Section 115, C. P. C.

10. In Venkatasastri v. Venkata Jagannadha Rao, 1947-2 Mad LJ 256: (AIR 1948 Mad 200), the nature of the proceedings before the Collector under the Madras Hereditary Village Offices Act, Sections 13(1) and 21 came up for consideration. After discussing the various provisions of the Act, the learned Judges came to the conclusion that if the tribunal created by Section 13(1) of the Act did in fact act without jurisdiction, then there would still be a right, in respect of Section 21, for the aggrieved person to come to this Court (High Court) if he could show that the special Tribunal had acted without jurisdiction. The decision in this case proceeds on the footing that the judgments reached by the revenue Courts under Act III of 1895 in suits filed under Section 13(1) are subject to the revisional jurisdiction of the High Court.

11. In Sriramarao v. Suryanarayanamurthi, : AIR1954Mad340 Venkatarama Ayyar, J. had to consider the nature of the proceedings before the Registrar of Co-operative Societies under the Co-operative Societies Act and whether these bodies could be regarded as Courts subject to the revisional powers of the High Court. The learned Judge held in that case, that Courts which decide disputed rights between subjects or between a subject and the State would be Civil Courts as opposed to criminal Courts, where the State vindicates wrongs committed against the public, and that courts constituted for deciding purely civil questions between persons seeing their civil rights must be considered to be civil Courts, notwithstanding that they are created by a special statute and are mentioned in that statute as distinct from Civil Courts, and that the true import of such a distinction is that while special Courts have jurisdiction over a limited class of suits specified in the statute, the jurisdiction of the Civil Courts is not limited to any class of suits. Accordingly the learned Judge held that the Registrar functioning under the Co-operative Societies Act is a Civil Court within the meaning of that expression in Section 25 of the Debt Conciliation Act and the decision reached by him is subject to the revisional powers of the High Court. The decision in AIR 1944 Mad 139 was followed by a Division Bench of this Court in Narasaiah v. Estates Abolition Tribunal, Chittoor, AIR 1957 Andh Pra 903 wherein it was held that revenue Courts are Civil Courts. The judgment of Patanjali Sastry, J. was quoted with approval to the effect that rent Courts being Civil Courts are subject to the revisional jurisdiction of the High Court under Section 115, C.P.C.

12. Applying the principles enunciated in the above decisions, it is clear that the decision of the Collector, Markapur, in this case as well as of the District Collector, Kurnool on appeal, are decisions given by Courts within the meaning of the expression occurring in Section 115, C.P.C. As these Courts are charged with the duty of deciding disputes of a civil nature involving civil rights such as a right to office or to the emoluments thereof, they are Civil Courts within the meaning of the Code of Civil Procedure and particularly Section 3 thereof which may be extracted:

'For the purposes of this Code, the District Court is Subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small causes is subordinate to the High Court and District Court.'

Further, as pointed out in the decisions quoted above, Section 3 was only enacted as illustrative of the Courts exercising normal original civil jurisdiction under law and it is by no means exhaustive or exclusive.

13. The further question that arises for consideration as regards the applicability of Section 115 is whether the Collector and the District Collector exercising jurisdiction under Act III of 1895 particularly dealing with suits under Section 13 can be regarded as courts subordinate to High Court. On this point, it must be made clear that Section 115 was merely dealing with the territorial jurisdiction of the High Court and the expression 'subordinate to such High Court' must be read in that light. As it is a general section applicable to all High Courts and as the object of the Legislature is to give revisional jurisdiction to the High Court only in respect of Courts within its jurisdiction and not outside it, this purpose was achieved by the employment of the expression 'by any Court subordinate to such High Court'. It could not obviously have been the intention of the Legislature to recognise the existence of Courts within the territorial jurisdiction of the High Court which are not subordinate to the High Court.

It must be clearly understood 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 subordinate 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. Such an interpretation would lead to absurd consequences, apart from being subversive of discipline. The view expressed in AIR 1944 Mad 139 was at a time when the Government of India Act (Section 224) was in force, but after the Constitution, the position is even made clearer by the introduction of Article 227 which confers on the High Court a superior and superintending jurisdiction over all Courts and tribunals within the jurisdiction of the High Court. Hence, in my considered opinion, under the Constitution, there can be no category of Courts or tribunals which are not subordinate to the High Court. Article 227 in this connection requires to be referred to:

'Every High Court shall have superintendence over all Courts and tribunals through the territories in relation to which it exercises jurisdiction.'

Hence every court exercising jurisdiction within the territorial limits over which the High Court exercises jurisdiction is subordinate to the High Court. It is subordinate 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 on its civil side, so that any Civil Court exercising civil functions is a Court subordinate to the High Court, and therefore, subject to the revisional jurisdiction of the High Court under Section 115. Hence the judgment of the Collector, Markapur in the suit filed before him under Section 13(1) of the Act and the judgment of the District Collector on an appeal are courts subordinate to the High Court and the decisions reached by them are subject to the revisional jurisdiction of this Court.

14. In this connection, Mr. Eswara Prasad sought to base a contention on Section 21 of the Act, which is as follows:

'No Civil Court shall have authority to take into consideration or decide any claim to succeed to any of the offices specified in Section 3 or any question as to the rate of amount of the emoluments of any such office or, except as provided in proviso (ii) to Sub-section (1) of Section 13, any claim to recover the emoluments of any such office.'

This question came up for consideration in Partha-sarathi Naidu v. Koteswararao, AIR 1924 Mad 561, wherein it was held that what the section contemplated is the exclusion of any appeal as such to the Civil Courts as distinct from the Courts exercising jurisdiction under the Act. In the above case, which is a Full Bench decision of the Madras High Court, the question arose whether Section 57 of the Madras Local Boards Act excluded the revisional jurisdiction of the High Court. In that connection it was observed in that case:

'It is further argued that the fact that the decision of this Judge is, by Section 57 of the Act and by the rules, final, precludes any revision. There is really no authority adduced in support of that proposition and in my judgment it would be quite contrary to the whole object and intention of Section 115 of the Code of Civil Procedure so to hold. That section only applies where there is no appeal. I know of no better way of directing that there shall be no appeal than by the Legislature stating that the decision of a particular Court shall be final. It is the ordinary mode of expression used for the purpose in much of the legislation in England on which this legislation is founded; and where the whole object of revision is to prevent a Court from which there is no appeal, acting contrary to its jurisdiction, a finding that it is the law that because the words used are the decision shall be final', a Court ordinarily subject to the revisional powers of this Court, should be permitted to act wholly without jurisdiction without the aggrieved party being entitled to any remedy, would in my judgment be untenable'.

I am clearly of the opinion that Section 21 of the Act has not the effect of doing away with the general revision powers given to this Court under Section 115, C.P.C. It is necessary to refer to a decision of this Court reported in Jagannadha Rao v. Venkateswara Rao, : AIR1960AP49 , which has been cited before me. That was a case arising under the provisions of the Andhra Tenancy Act and cannot, therefore be held to have any application to the facts of the present case. But it must be noticed that the attention of the learned Judges who decided that case was not drawn to the Division Bench case of this Court in AIR 1957 Andh Pra 903. which followed the decision in AIR 1944 Mad 139. In Harinagar Sugar Mills v. Shyam Sunder, : [1962]2SCR339 even the Central Government exercising functions under the Companies Act was held to be a Civil Court subject to the supervisory jurisdiction of the Supreme Court under Article 136 of the Constitution.

15. To summarise, every Court or tribunal exercising jurisdiction within the territory over which a High Court exercises jurisdiction is subordinate to that High Court; every court dealing with and deciding civil matters or matters involving determination of civil rights is a civil Court to which Civil Procedure Code would normally apply, unless the local or special laws under which the said Courts are functioning specifically exclude the application of the Civil Procedure Code; and every Court dealing with and disposing of civil matters involving the determination of civil rights is subject to the revisional jurisdiction of the High Court under Section 115, C.P.C. The preliminary objection therefore fails.

16. Mr. Rajabhushana Rao claimed that the suit itself is not maintainable in view of the decision of the Supreme Court in Dasaratharama Rao v. State of Andhra Pradesh, : [1961]2SCR931 , which laid down that any recognition of a claim based on a hereditary right involves a discrimination contrary to the Constitution and that consequently the suit should be dismissed; and this being the inevitable result according to Mr. Rajabhushana Rao, he contends that it would not be necessary to try the suit in pursuance of the orders of the District Collector. This is hardly a matter which can be considered at this stage and particularly in revision. If the suit is not maintainable on any such ground, it would be open to the defendant-petitioner herein to raise it at the trial and leave it to the consideration and determination by the Collector, Markapur.

17. On the merits, I am not satisfied that the 'judgment of the District Collector, Kurnool, in the order proposed by him is vitiated by one or other of the defects mentioned in Clauses (a), (b) and (c) of Section 115, C.P.C. The District Collector felt satisfied that the plaintiff respondent herein had sufficient cause for his absence to the date of hearing before the Collector, Markapur and I fail to see how the conclusion reached by him could be said to be illegal or vitiated by any material irregularity. On the merits, the revision petition tails and is dismissed. In the entire circumstances of the case I make no order as to costs.


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