1. In O.S. No. 5 of 1921 on his file the Judicial Assistant Commissioner of the Agency Division dismissed an application for the appointment of a receiver; and the petitioner before us appealed against that order of dismissal to the Agency Commissioner. The Commissioner, on the ground that one of the parties to the proceedings was his ward, obtained an order from this Court, transferring the appeal to the District Court, Vizagapatam. We are now to transfer it from that Court to the High Court.
2. The transfer to the District Court was made by us administratively and without notice to the petitioner, no dispute as to the correctness or sufficiency of the ground on which it was proposed being possible; and there is accordingly no reason why it should not be reconsidered at his instance. He urges that it should be, because this Court had no power to make it or to transfer a case from the file of the Commissioner to that of any Court except the High Court. This contention no doubt involves that our order of transfer to the District Court was ultra vires and ineffective and therefore the relief required is a transfer from the file of the Commissioner, from which the appeal has never been removed in any legal way, to the file of this Court, although that is not what is actually asked for in the petition before us. But it is not suggested by Respondents that there is any substance in the difference. We therefore turn to the law to ascertain our powers in the matter, observing only that neither side disputes the necessity for a transfer to some Court other than that of the Agent with reference to his position as guardian of a party.
3. The general power of the High Court to transfer from the file of a Court, such as that of the Agency Commissioner, which is not subject to the Code of Civil Procedure, is conferred by Section 107 Government of India Act (5 and 6. Geo. V. c. 6:) and is exerciseable thereunder subject to fulfilment of two conditions, that (1) the Court from which the transfer is made is subject to the High Court's appellate jurisdiction (2) the transfer is to another Court of equal or superior jurisdiction. The first of these conditions is in our opinion complied with, because under Rule XIV of the agency rules at present in force an appeal lies to the High Court from 'all decrees passed by the Agency Commissioner upon original suits;' and the conclusion founded directly on this comprehensive wording cannot be affected by the fact, relied on by respondents as inconsistent with the application of Section 107(a) and therefore of the section as a whole, that Rule XIX provides for the submission to the High Court of returns, since that provision may have been made simply for convenience and completeness or with reference to Section 107 proviso.
4. The respondents have then referred to the decision in Maharajah of Jeypore v. Papayamma I.L.R.(1899) M. 329 as negativing this Court's power to transfer, not only to the District Court (consistently with petitioner's contention), but also to its own file. It is not material that this decision was given under Section 15 Indian High Court's Act (24, 25 Vict. c. 104), because that section has been re-enacted in almost identical terms in the section of the Government of India Act above referred to; but it is material to both the points above stated that a different set of Agency Rules was promulgated on 9th November 1920 in the Fort St. George Gazette Part 1. p. 1425 and governs the present case. For as regards the point at present under consideration the appellate jurisdiction of this Court was sustained in the judgment of White C.J. with reference to Rule XXI and was negatived by Benson I. mainly with reference to the exclusion from that jurisdiction of the 'class of suits referred to in Rule XXII of the Rules then in force, transfer of a suit of that class being (it may be added) in fact in question. Whilst however the former Rule XXI is reproduced without substantial difference in the present Rule XIV, the proviso to the present Rule II(3) which deals with cases of the nature of those dealt with in the former Rule XXII, those in which the succession to or an interest in the estate of a Chief is in dispute, differs from it materially, because it entirely excludes such cases from the jurisdiction of the Courts and from trial as suits whilst under the former rule their character as suits was maintained, but, the fact on which Benson J. to some extent relied, the appeal was to the Governor-in-Council and, if it was (as the Rule provided) referred to the Sudder or High Court for decision, the decree could be carried into execution only with his permission. No such derogation from the High Court's Appellate Jurisdiction is recognised in the present Rules, and accordingly we have not to take into consideration the main ground on which Benson J's conclusion was founded. It may be true that the suit, in connection with which in the present case the appeal to the Commissioner was filed, is (as respondents contend) of the description referred to in the former Rule XXII and in the present Rule II(3). But, if so, that is merely possible ground for objection to the Court's jurisdiction at the trial; it cannot be urged on the present application and is not material to the disposal of the general question of construction at present under discussion. On that question we must hold that the High Court has appellate jurisdiction over the Court of the Agency Commissioner.
5. The learned judges in Maharajah of Jeypore v. Papayamma I.L.R. (1899) M. 329 were agreed in holding on the second question stated above that a District Court was not of 'equal or superior jurisdiction' to that of the Agent (corresponding with the Agency Commissioner in the present Rules), White, C.J. referring apparently in this connection only to an argument based on the policy of the legislature, on which Benson, J. had relied generally, and also expressing an opinion against the general power of the High Court to transfer suits from an Agency Court to itself. Regarding the merits of this argument, which has also been pressed on us, that the policy of the legislature is indicated as being against any power of transfer by its provision of special statutes and statutory rules adapted to the backward condition of the agency tracts, to which the developed procedure of the ordinary Courts would be unsuited, it would with all respect be sufficient that the true inference from the existence of such provision is in favour of discrimination in the use of the power of transfer, not of its absence and of the absence of any means of protecting an Agency litigant against a disqualified Judge. But we need not pursue this consideration further, because, whatever its weight, when (as those learned Judges thought) the language of the Rules they were construing admitted of doubt or a secondary interpretation, it is inadmissable to control the clearer language, with which we are concerned.
6. The conclusion already reached with reference to the comprehensive wording of Rule XIV, that the High Court has appellate jurisdiction over the Court of the Agency Commissioner in fact precludes all doubt that the one is superior to the other, the exercise of appellate jurisdiction being the clearest test of superiority; and only the position of the District Court remains for consideration. In favour of equality (superiority is not alleged) between it and the Court of the Agency Commissioner there is, so far as we have been shown, only the fact that the original pecuniary jurisdiction of both is unlimited. On the other hand the powers, which each can use in disposing of cases differ widely, as the learned Judges have shown in Maharajah of Jeypore v. Papayamma I.L.R.(1899) M. 329; and those differences remain under the Rules now in force. There can be no comparison and no question of equality between Courts so differently constituted. The conclusion must accordingly be that the High Court, being superior to the Court of the Agency Commissioner, can transfer a case therefrom to its own file, but not to the file of a District Court, which is not equal or superior.
7. This being so, we hold that the appeal numbered as C.M.A. No. 2 of 1922 on the file of the District Court of Vizagapatam has never been legally transferred from the file of the Agency Commissioner and transfer it to the file of this Court for disposal.