1. In this case the Advocate-General has instituted a suit under Section 539 of the Code of 1882 on the Original Side of this Court for the appointment of the trustees and the settlement of a scheme for the management of the Rameswaram Temple in the Madura District.
2. At the first hearing the case was adjourned to Chambers for the settlement of a scheme, but subsequently objection was taken by the defendant, the present Manager, that his Vakils had no authority to consent to the terms of the reference and also that the Court had no jurisdiction to try the suit. I decided to deal first with the question of jurisdiction, and it has been fully argued before me by the Advocate-General and Mr. S. Srinivasa Iyengar. Two contentions have been raised: that Section 539 does not confer upon the High Court in its Original Jurisdiction power to entertain suits in respect of charities in the mofussal, and that the Indian Legislature had no power to confer such jurisdiction on the High Court contrary to the limitations imposed by the Letters Patent on the High Court in the exercise of its Original Jurisdiction. It will be convenient to dispose of the latter contention first. As pointed out in The Queen v. Burah (1878) L.R. 5. 1 A. 178 : I.L.R. C.172 under Section 22 of the Indian Councils Act, 1861, the Indian Legislature has power to legislate ' for all Courts of Justice whatever,' but cannot 'repeal or in any way affect' the provisions of the Indian High Courts Act for the same year. It is pursuant to Section 9 of that Act that the Letters Patent of this and other Courts were issued; and the only question in my opinion is :--Is Section 539, as construed by the plaintiff, opposed to the provisions of Section 9 of the High Courts Act The provisions of the section are as follows:
Each of the High Courts to be established under this Act shall have and exercise all such civil, criminal, admiralty, and vice-admiralty, testamentary, intestate, and matrimonial jurisdiction, original or appellate, and all such powers and authority for and in relation to the administration of justice in the Presidency for which it is established, as Her Majesty may by such Letters Patent aforesaid grant and direct, subject, however, to such directions and limitations as to the exercise of the original civil and criminal jurisdiction beyond the limits of the Presidency Town as may be prescribed thereby;
And save as such by such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers in relation to the matter aforesaid of the Governor-General of India in Council, the High Court to be established in each Presidency shall have and exercise its jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of abolition of such last mentioned Courts.
3. The frame of the section which confers special power to limit the ordinary original civil jurisdiction of the High Courts by Letters Patent may be accounted for by the fact that it was intended, as mentioned in para 16 of the Secretary of State's Dispatch accompanying the Letters Patent, to withhold from the new High Courts the jurisdiction which the Supreme Courts had exercised on the grounds of constructive inhabitancy or otherwise over persons and property beyond the limits of the Presidency Town but within the limits of the Presidency. 'This object is effected by Clause 11 of our Letters Patent which confines the original civil jurisdiction of the High Court to such limits as may be declared and prescribed by any law made by the Governor in Council and until then in effect to the city of Madras. The power of altering the local limits of the ordinary original civil jurisdiction is reserved expressly by the Letters Patent to the local and not to the Indian Legislature, but Clause 11 and all the other clauses of the Letters Patent are by Clause 44 declared to be subject to the legislative power of the Indian Legislature so that it cannot be said that it would be inconsistent with the Letters Patent in the present form for the Indian Legislature to confer upon the High Court Original Jurisdiction in a particular class of suits arising outside the limits of the Ordinary Original Civil Jurisdiction as the Letters Patent contemplate that all the provisions therein contained should be subject to alteration by the Indian Legislature. This conclusion appears to me to dispose of the objection that such a provision would be opposed to Section 9 of the High Courts Act, because it has been held by their Lordships of the Judicial Committee in The Queen v. Burah that on the true construction of the Indian Councils Act, 1881, and of the High Courts Act, 1861, unless there should be anything to the contrary in the Letters Patent under which the High Court is established, the exercise of jurisdiction in any part of his Majesty's Indian territories by the High Court was meant to be subject to and not exclusive of, the general legislative power of the Governor-General in Council as to 'all Courts of Justice whatever'--page 190. And later on their Lordships after quoting the terms of the 8th section which is now in question observe : ' The authority of the Indian Legislature over the jurisdiction of the High Courts (so far at all events as the exercise of that authority must be consistent with His Majesty's Letters Patent) is here distinctly recoguised.' This case appears to me to conclude the question, and I do not think it necessary to refer to the Indian cases which have been cited See among others Achaya v. Ratnavelu I.L.R. (1886) M. 253:-ED.
4. The next question is : Assuming that the Indian Legislature has power to give the High Courts Original Jurisdiction in suits as to charities arising outside the Presidency Towns, has it done so by Section 539 There are passages in the judgments in Achayya v. Rathnavelu I.L.R. (1885) M.253 (sic Evidently a mistake for Subbayya v. Krishna I.L.R. (1890) M. 186:-Ed.) and Rangaswami Naicken v. Varadappa Naicken I.L.R. (1894) M. 462 which show that the learned Judges who decided those cases read the section as conferring jurisdiction on the High Court, but the point did not arise for decision. There was no discussion about it, and the arguments urged before me today were not considered and these observations were only obiter dicta which are not binding on me. On the other hand, there are remarks in one of the judgments in Ghazaffar Husain v. Yawar Husain I.L.R. (1905) A. 112 which suggest that the learned Judge read the section the other way But see Jamal Uddin v. Mujhaba Husain I.L.R. (1903) A. 681: ED. I have not been referred to any case in which the alleged concurrent jurisdiction of the High Court has been invoked, and the point appears to come up for decision for the first time.
5. Now the Ordinary Original Civil Jurisdiction of this Court is regulated by the Letters Patent as the Civil Jurisdiction of other Courts is regulated by the Civil Courts Act read with the Civil Procedure Code, and the Indian Legislature has been slow to interfere with the High Courts' Original Jurisdiction as settled by the Letters Patent. Thus in the provisions in the old Code regulating jurisdiction, Sections 10, 17 and 19 are made inapplicable to the High Court, while Section 18 reproduces part of Clause 12 of the Letters Patent. So, too, when desirous of relieving the High Court of suits of small value, the Legislature has effected its purpose, not by taking away its jurisdiction to suits valued at upwards of Rs. 100, but by penalising parties resorting to jurisdiction as to costs--see the provisions of the Presidency Small Cause Court Act. Again, as already mentioned, Clause 11 of the Letters Patent of the Presidency High Courts expressly provides that the Ordinary Original Civil Jurisdiction shall not extend beyond the prescribed local limits of such jurisdiction, while the Letters Patent of the Allahabad High Court do not confer on it Ordinary Original Civil Jurisdiction at all. Further, the question is not one merely of jurisdiction but also of private right, because the prohibition in Clause 11 protects defendants in the mofussil from being brought here to answer suits except in the circumstances laid down in Clause 12; and it was the express policy of Parliament to restrain the Ordinary Original Jurisdiction of the High Court within the limits to be prescribed by the Letters Patent. In these circumstances, and assuming that the Indian Legislature has power to override these provisions, I think that in construing its enactments it is necessary to find clear and unambiguous words in order to extend the original jurisdiction of the High Court to a particular class of suits arising in the mofussil. According to well established principles, such words are necessary to take away private rights or to extend or to curtail the jurisdiction of the Court in the position of the High Court--see Craies' Statute Law, 4th Edition, page 109, and the authorities there cited. Having regard to the considerations already mentioned, I think the presumption against any intention to extend the Original Civil Jurisdiction of the High Courts is at least as strong as the presumption which arises in England against any intention to extend the jurisdiction of the Superior Courts, as to which see Craies, pages 116 and 117. Applying these principles to the construction of Section 539 we find that it empowers the Advocate-General, &c;, to ' institute a suit in the High Court or the District Court within the local limits of whose civil jurisdiction the whole or any part of the subject-matter of the trust is situate ' and the question is: Do these words show a clear intention to extend the Ordinary Original Civil Jurisdiction of the High Court? In order that they may have that effect it is necessary to read the words 'within the local limits of whose civil jurisdiction' as including the local limits of the Court's Appellate Civil Jurisdiction, whereas the section is providing to resort not to Appellate but Original Jurisdiction. The Advocate-General argues that the framers of the Code were familiar with the expression Ordinary Original Civil Jurisdiction and have used it in other sections and would have used it here if they have been referring to the local limits of its Original Jurisdiction. The expression would, however, be inapplicable as the words 'civil jurisdiction' refer to the District Court as well as to title High Court, and the District Court has no Extraordinary Original Civil Jurisdiction as opposed to Ordinary Original Civil Jurisdiction. It would, of course, have been plainer if the words had been ' Civil Jurisdiction,' but, as already observed, the whole section is dealing with original jurisdiction; and, on the other hand, if the limits of appellate jurisdiction had been intended, nothing would have been easier than to say so expressly. The Advocate-General also argues that if the limits of original jurisdiction are intended the mention of the High Court is superfluous because, having regard to the definition of the District Court in Section 2, the words District Court ' would include the High Court in the exercise of the Ordinary Original Civil Jurisdiction.' The definition in Section 2 only applies ' unless there be something repugnant in the subject or context,' and in cases like the present an interpretation clause must be applied with caution.--Rex v. Cambridgeshire (1837) 7 A & E 491. Having regard to the fact that the section was intended to meet a difficulty which has been experienced in the mofussil and as in ordinary parlance District Court does not include High Court, the High Court may, I think, have been expressly mentioned to make it clear that the section was intended to apply to the Presidency Towns as well as the mofussil. On the whole I have come to the conclusion that the section does not in a sufficiently clear and unambiguous manner manifest the intention of the Indian Legislature to override the limitation imposed by the Letters Patent under the authority of Parliament on the exercise of Original Jurisdiction by the High Court beyond Presidency Towns. I may add that there is no obvious reason why in 1887 the Legislature should have been desirous of extending the Original Jurisdiction of the High Courts as regards this particular class of suits, and the fact that in the present Code any such extension of the High Courts' Original Jurisdiction is excluded in the clearest language certainly does not help the plaintiff. Lastly I may observe that on the interpretation contended for there would be considerable difficulty as to the extent of the power to sue conferred upon the Collector in the last para of the section, whereas on the other construction it presents no difficulty. For these reasons I am of opinion that the High Court has no jurisdiction. There is no allegation in the plaint bringing the suit within jurisdiction and the suit must be dismissed. There will be no order as to costs.