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Custodian of Evacuees Property, Punjab and ors. Vs. Firm Bihari Lal Parkash Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 23 of 1951
Judge
Reported inAIR1953P& H221
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9; Evacuee Property Act, 1950 - Sections 46; Evacuee Interest (Separation) Act, 1951
AppellantCustodian of Evacuees Property, Punjab and ors.
RespondentFirm Bihari Lal Parkash Chand and ors.
Appellant Advocate A.M. Suri, Adv.
Respondent Advocate Bhagirath Dass, Adv.
DispositionAppeal dismissed
Excerpt:
.....under article 227 of the constitution. - 7. there is besides nothing in the act, as far as i can see, which clearly gives to such an authority the jurisdiction to adjudicate in a suit for accounts between parties who are evacuees and non-evacuees, and unless the legislature specifically says so an .administrative tribunal cannot have jurisdiction over matters over which the courts have jurisdiction......so provides. no such provision has been brought to my notice and i cannot believe that it was the intention of the legislature that in a suit for accounts of a partnership in which an evacuee is alleged to be a partner is not triable by a court of civil jurisdiction. the provisions or the evacuee interest (separation) act have for the reasons given above not become applicable in this case.8. i would, therefore, dismiss this appeal withcosts.
Judgment:

Kapur, J

1. This is a second appeal against an appellate order of District Judge T. C. sethi reversing the order of a Sub Judge 1st Class of Amritsar returning the plaint to be presented to the Custodian.

2. The plaintiff brought a suit for dissolution of partnership and rendition of accounts against several other persons including Sheikh Khaleel Mohammad, defendant 8, & firmHaji MehtabDin-Abdul Majid, defendant 15. A preliminary objection was raised that this matter was not triable by a Civil Court and reliance was placed on Ordinance, No. 27 of 1949. The learned Judge held that he lad no jurisdiction and ordered that the plaint should be presented to the Custodian. By what process of reasoning the learned Judge came to his conclusion I am unable to see, but whatever else the Custodian may be he is not a Court exer-:ising jurisdiction over citizens and cannot adju-dicate upon their respective rights.

3. The matter was taken on appeal to the Dis-trict Judge, who held that the Court had jurisdic-tion and remanded the case for trial in accord-ance with law. The custodian has come up in appeal to this Court.

4. Mr. Anand Mohan Suri has in the first place submitted that the matter is covered by Section 46, Administration of Evacuee Property Act, 1950, and as the Civil Court had no jurisdiction to ad-judicate upon questions mentioned in sub-clauses (a), (b), (c) and (dl of that section, the suit could not be tried in a Civil Court. 1 am unable to agree with this submission because the matter in controversy in the Court of the Sub Judge was not a question whether the property or right to the property is or is not evacuee property, nor was it in regard to adjudication upon the question whether any person is or is not an intendig evacuee, nor was the legality of any action taken by the Custodian-General or the Custodian under the Evacuee Property Act challenged, nor was it a matter in respect of which the Custodian-General or the Custodian has the power to act. This contention I would, therefore, repel.

5. Counsel then relies upon the Evacuee Interest (Separation) Act, 1951, (Act 64 of 1951) and submits that since the passing of this Act matters such as the ones which are involved in the present appeal are not entcrtainable by a Civil Court. He relies on Section 8 read with Section 20 of the Act. Section 8 empowers a competent officer to take a decision and it provides as follows:

'8. Decision by competent officer: (1) On receipt of a statement of claim under Section 7, the competent officer shall, subject to the provisions of sub-sections (2) and (3), hold an inquiry into the claim in accordance with the procedure laid down in Section 17 and pass an order determining the interest of the evacuee and the claimant in the property in question and the order shall contain all or any of the following particulars .....'

Section 7 to which reference is made in Section 8 provides for submission of claims and any person claiming an interest in a composite property can within 60 days of the date of issue of genera! notice or service of individual notice under Section 6 submit to the competent officer a statement of his claim in writing ...... Section 6 provides that for the purpose of determining or separating the evacuee interest in a composite property, any competent officer having jurisdiction over such property may on information received from the Custodian or on an application from the claimant issue a general or special notice. Composite property is defined by Section 2(d) of the Act and means any property which has been declared to be evacuee property and in which the interest of the evacuee consists of an undivided share in the property held by him as a co-sharer or partner of any other person not being an evacuee.

6. In order to give jurisdiction to a competent authority first ot all there has to be a notice to submit claims and no such notice has been proved. Secondly, there has to be a submission by some person within the time specified for the determination of that claim and the determination has to be done under Section 8 after a statement under Section 6 has been filed, and it is only then that Section 20 can become applicable. None of these conditions is shown to exist in the present case and even if this Act could be so construed as counsel submits it should be I am unable to hold that in this case it is applicable.

7. There is besides nothing in the Act, as far as I can see, which clearly gives to such an authority the jurisdiction to adjudicate in a suit for accounts between parties who are evacuees and non-evacuees, and unless the legislature specifically says so an .administrative tribunal cannot have jurisdiction over matters over which the Courts have Jurisdiction. In other words, the jurisdiction of Courts is not to be excluded unless the law specifically so provides. No such provision has been brought to my notice and I cannot believe that it was the intention of the legislature that in a suit for accounts of a partnership in which an evacuee is alleged to be a partner is not triable by a Court of civil Jurisdiction. The provisions or the Evacuee Interest (Separation) Act have for the reasons given above not become applicable in this case.

8. I would, therefore, dismiss this appeal withcosts.


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