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Nagar Palika, Maheshwar and anr. Vs. Dwarkadas Mahajan Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. Nos. 415 and 416 of 1981
Judge
Reported inAIR1981MP166
ActsMadhya Pradesh Civil Courts Act, 1958 - Sections 21(3)
AppellantNagar Palika, Maheshwar and anr.
RespondentDwarkadas Mahajan Etc.
Cases ReferredSee Narsinghdas v. Mangal Dubey
Excerpt:
- - accordingly, the application submitted by the petitioners herein could have been considered by the learned district judge and on making of a case of emergency and on showing that they are entitled to the assistance of the court, the learned district judge had no right to refuse exercise of jurisdiction, which inhered in him .10. no doubt, it would be better it specific provision is introduced in the act as recommended by the madhya pradesh law commission to obviate cropping of situations of the present character......of 1981, for issuance of a permanent injunction against the applicants-herein in the court of the civil judge, class ii, maheshwar, on the allegations that he is a lax payer of the petitioner nagar palika, maheshwar; that there ig a contract between the petitioner nagar palika and himself for supply of water by main line pipe connection; that the petitioner nagar palika wants to disconnect the water supply from the main line and give connection instead from a side line and thus wants to deprive him of taking water supply from the main line. however, the nagar palika has no right to do so. accordingly, a decree for issuance of a permanent injunction was claimed restraining the petitioner nagar palika from disconnecting the water supply from the main line pipe connection.3. in the suit.....
Judgment:
ORDER

H.G. Mishra, J.

1. This order shall also govern the disposal of I. A. No. 1858 of 1981, submitted in Civil Revision No. 416 of 1981, which has been made on identical facts and poses the similar question of law.

2. Shortly put the facts leading to the submission of the revision and the aforesaid application in this Court are as under : Dwarkadas, the plaintiff-non-applicant (in C. R. No. 415/81) has instituted a Civil Suit No. 43A of 1981, for issuance of a permanent injunction against the applicants-herein in the Court of the Civil Judge, Class II, Maheshwar, on the allegations that he is a lax payer of the petitioner Nagar Palika, Maheshwar; that there ig a contract between the petitioner Nagar Palika and himself for supply of water by main line pipe connection; that the petitioner Nagar Palika wants to disconnect the water supply from the main line and give connection instead from a side line and thus wants to deprive him of taking water supply from the main line. However, the Nagar Palika has no right to do so. Accordingly, a decree for issuance of a permanent injunction was claimed restraining the petitioner Nagar Palika from disconnecting the water supply from the main line pipe connection.

3. In the suit the plaintiff-non-appli-cant submitted an application for issuance of a temporary injunction, which was opposed by the petitioners on the ground that they want to divert the connection from main line to the branch line; that too on the basis of technical report and instructions from the PublicHealth Engineering Department; that in this process the plaintiff will not suffer any injury, which may be made the foundation for the suit,

4. The trial Court after hearing arguments, by order dated 9-5-1981 granted a temporary injunction restraining the applicants from diverting the pipe connection from main line to the branch line. After obtaining copy of the said order the petitioners-herein submitted a Civil Miscellaneous Appeal before the District Judge, West Nimar, Mandlesh-war, along with an application for stay of the operation of the temporary injunction granted by the trial Court at 3.45 P.M. at the residence of the District Judge on 16-5-1981. However, by order dated 16-5-1981 the District Judge has refused to consider the application on the ground that the Court cannot exercise jurisdiction to hear civil work during vacation and has ordered that the papers be kept in office to be placed before the Court for hearing on the opening day after vacation, i.e. on 15-6-1981. It is against this order that the petitioners have preferred revisions along with the aforesaid applications, coupled with an application for urgent hearing of the matter during summer vacation.

5. It is contended by Shri Waliwade-kar, counsel for the applicants that the impugned order amounts to refusal to exercise jurisdiction vested in the District Court and that Courts exist for doing justice and giving legal assistance to parties. That power to give interim reliefs in the matter of urgency has to be exercised even during summer vacation and that the considerations which have weighed with the learned District Judge are not relevant. It was, therefore, prayed that either operation of the temporary injunction granted by the trial Court should be stayed or the learned District Judge should be directed to consider the application submitted by the petitioner before him for the purpose.

6. Having given my anxious consideration to the matter, I feel that the impugned order manifests a clear case of refusal to exercise jurisdiction. The Courts are constituted for the purpose of doing justice according to law and must be deemed to possess as a necessary corollary and as inherent in its very constitution, all such powers as may be necessary to do right and to undo a wrong in the course of administration ofjustice. See Jaipur Mineral Development Syndicate v. The Commr. of I.-T. New Delhi (AIR 1977 SC 1348). What happened by publication of list of days to be observed in each year as holidays in the Civil Courts, subordinate to this Court, with the approval of the State Government, is not to divest the courts of jurisdiction vested in them but is suspension of normal work during those days. This is what appears to be the effect of the Notification No. 1-7-3-80, Pt. I, Jabalpur, dated 6th February, 1981, Note No. 3, which is relevant to the situation, reads as under :

'(3) The bummer Vacation of all the Subordinate Courts will be from Monday, the 11th May to Saturday, the 13th June, 1981, except the Subordinate Courts affiliated to High Court of Madhya Pradesh, Bench at Gwalior, Gwalior.'

The said Notification has been issued by the High Court with the approval of the State Government, in accordance with Section 21 (1) of the Madhya Pradesh Civil Courts Act, 1958 (hereinafter referred to as the Act) and the same has been published in the Madhya Pradash Government Gazette dated 13-2-1981, as required by Sub-section (2) of Section 21 of the Act. Now, the District Judge feels that the effect of summer vacation is that he cannot exercise jurisdiction to hear Civil work during the summer vacation. He further feels that the provisions placed in Sub-section (3) of Section 21 of the Act are merely curative in nature and do not invest jurisdiction in Civil Courts to pass an order on a holiday and that the provision is meant to save orders which are passed by Civil Courts in ignorance of a holiday having been declared and which takes time to reach the Courts. It further appears that in absence of a provision for hearing of cases by Civil Courts during holidays, the learned District Judge feels that he has no jurisdiction to hear Civil work, during summer vacation, even for granting interim reliefs and has refused to go into the question of urgency of the matter.

6-A. The approach of the learned District Judge does not appear to be correct. The power to do justice and to undo injustice is inherent in Courts and in spite of suspension of normal functioning, the Courts, in case of emergency, have right, even on holidays, to do a judicial act. Situations necessitating affording of protection of the Courts and/or assistance of the Courts in the nature of 'first aid' may arise even during the period when Courts are closed for summer vacation. It appears that Sub-section (3) of Section 21 of the Act has been enacted to act as a safety-valve to meet the situations of such character; otherwise there will be no occasion for doing a judicial act on a holiday. If the construction put by the learned District Judge on the provisions of Section 21 (3) of the Act were to be accepted as correct and it be regarded that its object is merely to save orders passed by Civil Courts 'in ignorance of a holiday having been declared and which takes time to reach the Courts', then the provision will be rendered nugatory. Sub-sec. (3) of Section 21 of the Act is as under:

' Section21 (3). -- A judicial act done by a Court on a day specified in a list published under Sub-section (2) shall not be invalid by reason only of its having been done on that day.'

We cannot read into Sub-section (3) the further requirement that the validity of a judicial act done by a Court on a holiday will not be affected if it has been done in ignorance of the fact that the day on which the act is done is a duly declared holiday. No doubt, Section 21 (3) is a protective provision. However, the power to do a judicial act and performance of judicial functions is implicit in it. The object of the provision appears to be to confer on the Courts, inter alia, power to perform judicial functions on a day specified in the list published under Sub-section (2) of Section 21 of the Act in case of emergency. In an appropriate case for exercise of power to grant interim relief having been made out, it is obligatory on the Courts to give the same. Closing for summer vacation does not bring about cessation of jurisdiction of Courts to administer justice. The connotation of the term 'Vacation' is given in Webster Universal Dictionary (Full colour illustrated Unabridged International Edition, at page 1646), inter alia, as under :

'A fixed, stated, interval in a year during which the ordinary business, work, study and etc. is suspended; used esp. of courts of law and of a university; period when the courts are 'up' or not sitting.'

The meaning of the term 'Holiday' is given at page 681 of the said Dictionary inter alia thus :

'Day on which work is wholly or partially suspended; day of recreation and amusement; to have a holiday every Saturday, on one's birthday etc.'

7. Section 21 of the Act does not use the expression 'Summer Vacation', Wha' it talks of is holidays. Accordingly, the expression 'Summer Vacation' used in the aforesaid Notification appears to be synonymous to 'holiday'. With commencement of summer vacation, all ordinary work performed by Courts during the working days stands suspended. However, suspension of work does not connote cessation of jurisdiction, the power and authority to administer justice in case of emergency remaining intact with them, as discussed above. Courts can perform judicial act even on a holiday. In Ununto Ram Chatterjee v. Protab Chunder Shiromonee, (1871) 16 Suth WR 230, it has been held that a plaint may be received and admitted by a Munsif on a Sunday or other holiday. Accordingly, there is nothing illegal in performing a judicial function on a holiday.

8. Even in absence of a specific pro-j vision for hearing of cases by Civil Courts on a holiday or holidays, the Courts can exercise power to administer justice and the function so performed and the act so done will be valid and challenge to its validity on the ground that it was performed on a holiday will not be open. This would have been true even in the absence of provisions placed in Sub-section (3) of Section 21 of the Act. By enacting Section 21 (3) of the Act, a challenge to the validity of a judicial act performed on a holiday has been sealed, although the same may 'be amenable to challenge which may otherwise be open on its merits. Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. See Narsinghdas v. Mangal Dubey (1882) ILR 5 All 163 at p 172.

9. The matter of hearing Civil matter on a holiday is essentially a matter within the domain of procedure. In the absence of any prohibition in that behalf, the learned District Judge had jurisdiction to administer justice eveduring summer vacation. This power does not appear to be exercisable except on emergency being made out. The Courts have in addition to powers specifically conferred on them by law the powers which are termed as inherent powers. Inherent powers of the Courts are in addition to and complementary to those powers expressly conferred by or under the Code. Accordingly, the application submitted by the petitioners herein could have been considered by the learned District Judge and on making of a case of emergency and on showing that they are entitled to the assistance of the Court, the learned District Judge had no right to refuse exercise of jurisdiction, which inhered in him .

10. No doubt, it would be better it specific provision is introduced in the ACT as recommended by the Madhya Pradesh Law Commission to obviate cropping of situations of the present character.

11. In view of the aforesaid discussion, it appears necessary, in the ends of justice to direct the District Judge to consider the application for staying operation of the temporary injunction granted by the trial Court. Accordingly the District Judge is directed to consider the said application on 4-6-1981. Needless to observe that the power to stay the operation of the injunction will be exercisable only if a case of emergency is made out by the petitioners.

The interlocutory applications are disposed of accordingly.


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