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Abdul Salam Abdul Hamid Vs. Laxmi Singh Tularam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 434 of 1965
Judge
Reported inAIR1968MP144; 1968MPLJ316
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) - Order 37, Rule 1; Madhya Pradesh Civil Courts Act, 1958 - Sections 7(1) and 7(2)
AppellantAbdul Salam Abdul Hamid
RespondentLaxmi Singh Tularam
Appellant AdvocateG.P. Singh, Adv.
Respondent AdvocateT.C. Naik, Adv.
DispositionRevision allowed
Excerpt:
- - singh that unless and until the state government so empowers, no court named in clause (b), not even the district court, has jurisdiction under order 37. the argument is that the condition precedent applies to a district judge as well as to other courts. if the legislature did not want any court, including a district court, to exercise jurisdiction under order 37, unless it was specially empowered in that behalf by the state government, clause (b) would have read like this:.....madras and bombay; (b) any district court or other court specially empowered in this behalf by the state government (c) x x x; and (d) any other court to which sections 532 to 537 of the code of civil procedure, 1882 have been already applied.' it is contended by shri g. p. singh that unless and until the state government so empowers, no court named in clause (b), not even the district court, has jurisdiction under order 37. the argument is that the condition precedent applies to a district judge as well as to other courts.3. clause (b) can be construed in two ways according as the condition of specially empowering is read to qualify the expression 'other court' only or also to qualify 'district court'. on the latter interpretation even a district court will have no jurisdiction to.....
Judgment:
ORDER

Shiv Dayal, J.

1. The non-applicant instituted a suit under Order 37 Civil Procedure Code (Summary procedure on NegotiableInstruments) against the petitioner in the Court of the Additional District Judge Umaria. On notice being issued to him, the defendant-petitioner raised certain preliminary objections. One of them was that the trial Court had no jurisdiction to try the suit. That obiection has been rejected by the trial Court on the ground that it has inherent jurisdiction to try the suit and that the provisions contained in Section 7(2) of the M. P. Civil Courts Act, 1958 are administrative in nature.

2. Order 37, Rule 1, Civil ProcedureCode runs thus:

'1. Application of Order: This Order shall apply only to -

(a) the High Courts of Judicature at Fort William. Madras and Bombay;

(b) any District Court or other Court specially empowered in this behalf by the State Government

(c) x x x; and

(d) any other Court to which sections 532 to 537 of the Code of Civil Procedure, 1882 have been already applied.'

It is contended by Shri G. P. Singh that unless and until the State Government so empowers, no Court named in Clause (b), not even the District Court, has jurisdiction under Order 37. The argument is that the condition precedent applies to a District Judge as well as to other Courts.

3. Clause (b) can be construed in two ways according as the condition of specially empowering is read to qualify the expression 'other Court' only or also to qualify 'District Court'. On the latter interpretation even a District Court will have no jurisdiction to proceed under Order 37 unless and until it is specially empowered in that behalf by the State Government. If the intention of the law was not to confer on the District Court the jurisdiction under Order 37, Civil Procedure Code, unless it was specially empowered in that behalf by the State Government, it was not at all necessary to name that Court separately. If the legislature did not want any Court, including a District Court, to exercise jurisdiction under Order 37, unless it was specially empowered in that behalf by the State Government, Clause (b) would have read like this:

'Any Court specially empowered in this behalf by the State Government.'

The mention of the District Court separately can have no other meaning than the statutory conferment of the jurisdiction on it under Order 37. not depending upon any such special empowering. It seems to me undoubted that the word 'or' in Clause (b) is disjunctive. It completely separates two things. 'District Court': 'other Court specially empowered in this behalf by the State Government.' On this analysis, it must be held that a District Court has statutory jurisdiction under Order 37, Rule 1, Civil Procedure Code, and it does not dependupon a special empowering in that behalf by the State Government.

4. The next question is whether the Court of the Additional District Judge is a District Court. Under Section 3 of the M. P. Civil Courts Act, 1958, the Court of the Additional District Judge is distinct from the Court of the District Judge. It is declared in Section 7(1) of the same Act that the Court of the District Judge shall be the Principal Court of original jurisdiction in the civil district. The powers of an Additional District Judge are defined in Subsection (2) of that Section. It reads thus:

Section 7(2) 'An Additional District Judge shall discharge any of the functions of a District Judge, including the functions of the Principal Civil Court of original jurisdiction, which the District Judge may by general or special order assign to him and in the discharge of such functions he shall exercise the same powers as the District Judge.'

On a plain reading of this sub-section there can be no doubt that an Additional District Judge can discharge only such functions of a District Judge including the functions of the Principal Civil Court of original jurisdiction as the District Judge may assign to him. But, a general or special order is necessary. On such assignment the powers of an Additional District Judge in the discharge of such functions are the same as that of the District Judge. This is the only provision under the Civil Courts Act which describes the powers of an Additional District Judge

5. In the order under revision, the Addl. District Judge did not mention what functions had been assigned to him by the District Judge concerned. A report was therefore sent for. From his reply it is clear that no general or special order has been passed by the District Judge of the District assigning to him the function under Order 37 Civil Procedure Code or even, generally, the functions of the Principal Civil Court of original jurisdiction.

6. The plaint was presented directly to the Additional District Judge, Umaria. It was not as if it was presented to the District Judge and the latter transferred it to the Additional District Judge for disposal. Therefore, there is no room for the argument that by implication the functions of the District Judge, so far as this case is concerned, were assigned to the Additional District Judge.

7. It is not possible to agree with the learned trial Judge that an Additional District Judge has inherent powers to decide a suit or is invested with the functions of the Principal Civil Court of original jurisdiction merely by virtue of his appointment as an Additional District Judge. The Judicial powers of the Court of an Additional District Judge are defined and circumscribed in Section 7(2) of the Act The expression'District Court' is defined in Section 2(4) of the Code. It is the Principal Civil Court of original jurisdiction. Now, under Section 7(1) of the M. P. Civil Courts Act. 1958, it is the Court of the District Judge, which is the Principal Civil Court of original jurisdiction in the civil district. An Additional District Judge may also function as the Principal Civil Court of original jurisdiction by virtue of Section 7(2), provided the District Judge assigns to him that function by a general or special order.

8. In this view of the matter it cannot be said that the Additional District Judge Umaria is a District Court within the meaning of Order 37 Rule 1 Civil Procedure Code. Admittedly he has not been specially empowered in that behalf by the State Government. That being so, he has no jurisdiction to try the present suit.

9. The revision is allowed. The orderpassed by the Additional District Judge,Umaria is set aside. It is held that he hasno jurisdiction to try the suit. The plaintshall be returned to him for presentation toproper Court. Parties shall bear their owncosts in this Court and in the Court below.


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