Skip to content


Lal Chand Vs. Bharat Nidhi Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. Nos. 706 and 707 of 1955
Judge
Reported inAIR1962All378
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Debt Law; Displaced Persons (Debts Adjustment) Act, 1951 - Sections 4, 26, 28, 40 and 53
AppellantLal Chand
RespondentBharat Nidhi Ltd.
Appellant AdvocateS.N. Kacker, Adv.
Respondent AdvocateR.S. Pathak, Adv.
DispositionRevision dismissed
Excerpt:
.....act, 1951- not subordinate to high court - revision not maintainable. (ii) functions of civil judge - sections 4, 26, 28 and 40 of displaced persons (debts adjustment) act, 1951 - exercise of jurisdiction - persona designate. - - went out of its way to use the word 'tribunal'.although the powers of the tribunal were conferred upon a civil judge, it was not satisfied with conferring jurisdiction under the act upon the civil judge having territorial jurisdiction, but went out of its way to constitute a tribunal, though to be presided over by a civil judge. for reasons to be stated shortly, i am of the opinion, that the preliminary objection raised for the opposite party is well founded and as such these revision petitions must be rejected as not competent. it must interpret..........of its way to use the word 'tribunal'. although the powers of the tribunal were conferred upon a civil judge, it was not satisfied with conferring jurisdiction under the act upon the civil judge having territorial jurisdiction, but went out of its way to constitute a tribunal, though to be presided over by a civil judge. the provisions of the act show that it was not the intention of the legislature that the civil judge should exercise the jurisdiction, conferred by the act as a civil judge, but to create a new court, though to be presided over by a civil judge, it contains provisions such as sections 26 28 40 and 53 suggesting that he was meant to exercise the jurisdiction over the cases coming under the act not as a civil judge but as a person designate. if he were to exercise the.....
Judgment:

Desai, C.J.

1. I agree with my brother Ramabhadran that the Tribunal established under the Displaced Persons (Debts Adjustment) Act (No. 70 of 1951) is not a court subordinate to this Court within the meaning of Section 115, C. P. C. InBraj Nandan Sinha v. Jyoti Narain : 1956CriLJ156 , the Supreme Court has held that prima facie, a subordinate court within the meaning of Section 115 means a court subordinate to the High Court in the hierarchy of courts. The Tribunal, as such, is not a court in the hierarchy of courts. The Legislature; went out of its way to use the word 'Tribunal'. Although the powers of the Tribunal were conferred upon a Civil Judge, it was not satisfied with conferring jurisdiction under the Act upon the Civil Judge having territorial jurisdiction, but went out of its way to constitute a Tribunal, though to be presided over by a Civil Judge. The provisions of the Act show that it was not the intention of the Legislature that the Civil Judge should exercise the jurisdiction, conferred by the Act as a Civil Judge, but to create a new court, though to be presided over by a Civil Judge, It contains provisions such as Sections 26 28 40 and 53 suggesting that he was meant to exercise the jurisdiction over the cases coming under the Act not as a Civil Judge but as a person designate. If he were to exercise the same jurisdiction when trying a case under the Act as he exercises when trying a suit for defamation or malicious prosecution, or for breach of contract, or for recovery of money lent the Legislature would not have enacted these provisions because the provisions contained in the C.P.C. would have been ample. I have no justification for saying that the Act created an additional class of cases to be tried by a Civil Judge.

2. I have not been persuaded to agree that the view that I expressed in the case of Phul Kumari v. State : AIR1957All495 requires reconsideration. These revision applications are not maintainable and must be dismissed.

Ramabhadban, J.

3. These two revision petitions arise out of two applications made by Lal Chand Jetly (petitioner) to the Tribunal functioning under the Displaced Persons (Debts Adjustment) Act of 1951 (Act 70 of 51) against the respondents, Bharat Nidhi Ltd., and Bharat Bank Employees Provident Fund, respectively. In one case he sought recovery of a sum of Rs. 5131/8/- and, in the other Rs. 1667/8/-. The Tribunal dismissed the former claim but decreed the latter claim to the tune of Rs. 755/-. There being no right of appeal, vide Sections 40 and 41 of the Act, Lal Chand Jetly has come up in revision. His revisions came up for hearing before Mr. Justice Mukherji who has referred the cases to a Bench as, in his opinion, an important point of law was involved, i.e., whether the Tribunal, acting under the Act, would be subordinate, in relation to the High Court, within the meaning of Section 115 C.P.C.

4. Arguments on this point of learned counsel of both sides were heard at considerable length. For reasons to be stated shortly, I am of the opinion, that the preliminary objection raised for the opposite party is well founded and as such these revision petitions must be rejected as not competent.

5. Mr. R.S. Pathak for the opposite party invited my attention to the provision of Section 4 of the Act, which empowers the State Government to specify any civil court or class of civil courts as tribunal or tribunals, having authority to exercise jurisdiction under this Act. Similarly Section 2(12) defines a tribunal, as any civil court specified under Section 4, as having authority to exercise jurisdiction under the Act. 'Further, under Section 28 it is competent for the civil court which has been specified as a tribunal for the purposes of the Act to execute its decrees and orders, in the same manner as it could have done, if it were a decree or order passed by it as a civil court. Mr. Pathak urged that merely because the Act contemplates that a civil court would be authorised by the State Government to perform the functions of a tribunal under the Act, It would not make the tribunal itself, a civil court, and, as such, subordinate to the High Court. Learned Counsel for the applicant, on the other hand, submitted that the tribunal functions under the Act and is a civil court for all purposes. Further, Under Sections 40 and 41 of the Act an appeal would lie to the High Court from any final order or decree of the Tribunal where the value of the subject-matter of the appeal is not less than Rs. 5000/-.

6. The following authorities were cited by 'the parties' learned counsel :

Ex parte Walton, In re Levy (1881) 17 Ch. D 746. There the court of appeal observed: 'A statute may be construed contrary to its literal meaning, when a literal construction would result in an absurdity or inconsistency, and the words are susceptible of another construct on which will cany out the manifest intention.'

Makkhan Lal v. Secy. of State : AIR1934All260 . There a Full Bench of this Court in a case arising out of the Land Acquisition Act observed that:

'When a District Judge acts on a referenceby the Collector under Section 18. he is acting as a Court and not as a persona designata.'

'A Court constituted under the Land Acquisition Act is subordinate to the High Court and hence revision to High Court is competent from the order of such Court.'

As learned counsel for the opposite party rightly pointed out, the position of a District Judge acting under Section 18 of the Land Acquisition Act is very different from that of a Tribunal acting under Act 70 of 1951. The decision of the District Judge has the force of a civil court decree. This has been considered in : AIR1957All495 to which reference will be made presently.

7. British India Corporation Ltd. v. Shanti Narain : AIR1935All310 . There a Division Bench of this Court, while dealing with a case of a District Judge who had been empowered by the Local Government under the Proviso to Section 3 of the Companies Act, held that the exclusive original jurisdiction conferred on the district court would not oust the revisional jurisdiction of the High Court. This obviously has no application to a case under Act 70 of 1951.

8. Shah Chaturbhuj v. Shah Mauji Ram : AIR1938All456 . There, in dealing with a case arising out of the U.P. Agriculturists' Relief Act, a Full Bench of this Court held that there is nothing in the Agriculturists' Relief Act which could be interpreted as divesting the High Court expressly or impliedly of the revisional jurisdiction conferred by Section 115, C.P.C.

9. Maghanamal Narumal v. Moolchand Gianchand : AIR1961MP193 . There Shiv Dayal, J. dissenting from the opinion of the learned single Judge reported in Sundar Das v. Lachman Das : AIR1957All352 observed;

'A Tribunal appointed under Section 4 of the Act is a Civil Court amenable to the jurisdiction of the High Court under Section 115, C. P. C.

Section 115, C.P.C. applies equally to proceedings before a tribunal established under a special Act and which is as much a civil Court as any other so called. There is nothing in the language of that section to restrict its scope only to orders passed by Courts constituted under the Civil Courts Act.'

Brijlal v. Sunder Das, AIR 1955 NUC (Pepsu) 2514 andUnion of India v. Gopi Chand AIR 1955 NUC (Pepsu) 4001, wherein Chopra, J. observed that the tribunal functioning under Act 70 of 1951, exercises its powers not merely as a persona designate, but as a court of law and accordingly revision lies against its decisions.

10. Parkash Textiles Mills Ltd v. Messrs. Mani Lal . There Kapur, J. (as he then was) dissenting from the majority view observed:

'The Tribunal under the Adjustment Act is not a Court but merely a Tribunal with many trappings of a court, deciding cases, not according to application of legal principles to ascertained facts but by considerations of policy also, as is clear from the scheme of the Act.'

'Section 28 of the Act itself recognises the distinction between a civil court acting as a Tribunal and as a Civil Court. And the mere tact of appeal being allowed to the High Court does not change the Tribunal from being a statutory authority into a Court.'

: AIR1957All352 . There V. Bhargava, J observed:

'A Tribunal exercising powers under Act 70 of 1951 is neither a district court nor a civil court nor a court of small causes. Consequently, such a tribunal is not a court subordinate to the High Court for the purposes of the C.P.C. The only courts which are subordinate to the High Court for the purposes of the C.P.C. are those enumerated in Section 3, C. P. C. and may be such other courts as may have been made subordinate to the High Court for the purposes of the C. P. C. by any other enactment. Consequently no revision can be entertained in the High Court under Section 115 of the Code against the orders of the Tribunal.' : AIR1957All495 . There, after discussing 24decisions of this Court and other Courts, Desai, J. (as he then was) indicated as follows;

'The word 'subordinate' has two distinct meanings, (1) 'of inferior importance or rank' and (2) subservient to, or under the authority of. When one has to consider whether a Court is subordinate to a High Court within the meaning of Section 115, it is not enough to show that it is a subordinate court in the sense of being a Court of an inferior grade or status; it must be shown that it is subservient, to, or subject to some authority of, the High Court. Subservience may arise out of some authority over the Court being vested in a superior Court or it may be created by a statutory provision, independently of any statutory authority being exercised over it. There are indications that 'the subordination contemplated by Section 115 is the subordination not arising out of the subjection to appellate or supervisory jurisdiction but the subordination arising out of a statutory provision.'

'Since which Court's are subservient to a High Court is a matter of statutory provision, Section 3 in the Code lays down which Courts are subordinate to which Court. This subordination is, as expressed in the section itself, 'for the purposes of this Code.' There would be no justification for bringing in other Courts within the subordination of the High Court unless there is a statutory provision. The words 'subordinate Court' in Section 115 must be understood in the sense given to them in Section 3; otherwise the words 'for the purposes of this Code' would be rendered useless.

The word 'Court', wherever it occurs in the Code necessarily means a Court of civil judicature. The subordinate Courts referred to in Section 115 must also mean subordinate Courts of civil judicature, that is to say, only those Courts that are created by the local Civil Court's Acts such as the Bengal and Assam Civil Courts Act, the Punjab Courts Act, etc. Other Civil courts, (and tribunals) created by other Acts, are not civil Courts and the procedure before them is not automatically governed by the Code. They cannot, therefore, be subordinate Courts within the meaning of Section 115. The Acts creating them may lay down that their procedure would be governed by C.P.C. but that would not convert them into civil Courts because, as it is evident from the provisions of Sections 4 and 5 of the Code, the C. P. C. is not the monopoly of civil Courts. Therefore, if those Courts do not become civil Courts, merely because they are governed by the C.P.C. they cannot become subordinate Courts within the meaning of Section 115.'

'The Bengal and Assam Civil Courts Act consolidates and amends the law relating to Civil Courts in U.P. and it is the only Act that creates civil Courts in U. P. Therefore all the civil courts that exist in U. P. are those created under the Act. When other Acts refer to civil Courts, they do not refer to some other civil Courts, they refer do Courts which are known as Civil Courts under the Bengal and Assam Civil Courts Act. When it consolidates the law relating to civil Courts, it excludes the possibility of there being any civil court other than the Civil Courts mentioned in Section 3.' In para 7, of his judgment Desai, J., afterconsidering the Full Bench decision in : AIR1934All260 , observed : 'Subordination in the second sense means being under the authority or somebody; whatever may be the nature of the authority exercised by the latter, the former is subordinate. There may be administrative subordination, there may be judicial subordination or there may be mere executive subordination. Subjection to appellate jurisdiction is some kind of subordination, but I respectfully disagree that this is the kind of subordination referred to in Section 115'

Munshi Ram v. Hukam Singh . There, Bapna, J. held that the Tribunal functioning under Act 70 of 1951 is not a subordinate court subject to the revisional jurisdiction of the High Court.

Commissioner of Sales Tax U.P. v. Modi Sugar Mills Ltd. : [1961]2SCR189 , wherein their Lordships in discussing a case under the U. P. Sales Tax Act observed:

'In interpreting a taxing statute equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumption. The court must look squarely at the words of the statute and interpret them. It must interpret taxing statutes in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any assumed deficiency.'

11. Agreeing with the opinion expressed by Kapur, J. in , V. Bhargava, J. in : AIR1957All352 , Desai, J. in : AIR1957All495 , and Bapna, J. in and disagreeing with due respect with the views expressed in AIR 1955 NUC (Pepsu) 2514 and AIR 1955 NUC (Pepsu) 4001 and : AIR1961MP193 I have come to the conclusion that the orders of a tribunal functioning under Act 70 of 1951 are not amenable to the revisional jurisdiction of this Court, and accordingly, these revision petitions are not competent.

12. I would, accordingly dismiss both the revision petitions. Since this is the first time that a case of this nature has come before a Bench of this Court, I would make no order as to the costs of these revision petitions.

13. This order will he read in both the petitions.

BY THE COURT

14. We dismiss this revisionbut make no order as to costs.


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