Rajagopala Ayyangar, J.
1. S.R. No. 16033 is a plaint which has to be filed in the Court of the Subordinate Judge of Tirunelveli. The main relief prayed for in the suit is one for injunction against defendants who have been impleaded thereto. C.M.P. No. 3912 of 1957 is an application filed in this Court to receive this plaint (S.R. No. 16033) and transmit the same to the Sub-Court, Tirunelveli, after passing an order for in terlocutory injunction which is prayed for in C.M.P. No. 3913 of 1957. The matter came up before me for orders as to the maintainability of the petition C.M.P. No. 3812 of 1957 namely to receive the plaint.
2. Mr. Champakesa Ayyangar, learned Counsel for the petitioner urged before me various grounds in support of the jurisdiction of this Court to receive this plaint. He, however, conceded that this jurisdiction had ultimately to turn upon the proper construction of Clause 13 of the Letters Patent.
3. The earliest decision of this Court on this point is an unreported one of Seshagiri Ayyar, J., in C.M.P. No. 1498 of 1919. That was an application to this Court to receive a plaint which had to be filed in the District Munsiff's Court of Dindigul. The learned Judge held that Clause 13 of the Letters Patent could not enable the plaint to be received by this Court. This decision was followed by Ramesam, J., in Jamna Bai v. Ramanathan Chettiar : AIR1929Mad29 . This case arose out of an application made during the summer vacation to entertain a plaint which had to be filed under the Civil Procedure Code in the mofussil Court and to pass interim orders which were alleged to be necessary to be passed in the interests of justice. The learned Judge followed the decision of Seshagin Ayyar, J., referred to just now and held that the plaint could not be entertained here. In the opinion of the learned Judge there was no provision of law by which the High Court could in the first instance receive a plaint which had to I be filed in an inferior Court in the mofussil and pass interlocutory orders pending the disposal of the suit on the ground that the mofussil Court was closed for the vacation. There has been no dissent from this decision which was rendered in 1928 right up to today and in the practice of this Court there has been no departure, the absence of I any decision on this point being due merely to this being accepted as a settled practiced with the result that no plaints were sought to be filed in this Court until last year. 11 shall be referring to the decision rendered then a little later.
4. As Mr. Champakesa Ayyangar has raised this question once again I propose to 1 deal with the exact scope of the High Court's powers in this regard. It is not necessary to consider the jurisdiction of the Supreme Court which was the predecessor of the present High Courts. Nor is it necessary to examine the scope of the jurisdiction I conferred on Sudder Dewaney Adalut which exercised merely appellate jurisdiction over the Company's Courts in the mofussil. Section 9 of the High Courts Act, 1861, enabled:
Each of the High Courts to be established under this Act shall have and exercise all such Civil, I Criminal, Admiralty and Vice-Admiralty, Testamentary, Intestate and Matrimonial jurisdiction I original and appellate and all such powers and authority for, and in relation to, the administration I of justice in the Presidency for which it is established as Her Majesty may by such Letters Patents I as aforesaid, grant and direct subject, however, to such directions and limitations as to the exercise of I original, civil and criminal jurisdiction beyond the limits of the Presidency Towns as may be prescribed thereby; and save as by such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor General of India in Council, the High Court to be established in each Presidency shall have and exercise all 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 the abolition of such last-mentioned Courts.
5. Under this provision therefore the High Court's original jurisdiction beyond the limits of the Presidency towns was to be such as was directed by Letters Patent. The Civil Jurisdiction outside the Presidency town limits was dealt with by Clause 13 of the Letters Patent. It ran as follows:
And we do further ordain that the said High Court of Judicature at Madras, Fort William in Bengal, Bombay shall have power to remove, and to try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Presidency of Madras, Bengal Division of the Presidency of Fort William, Bombay, subject to his superintendence, when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court.
Clause 13 was in contrast to the ordinary civil jurisdiction of the High Court under Clause 12. By virtue, therefore, of Section 9 of the High Courts Act the jurisdiction of the High Court in relation to the exercise of civil jurisdiction outside Presidency towns would be subject to the limits prescribed by Clause 13 of the Letters Patent. The power under Clause 13, it would be seen, was one
to remove and to try and determine as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction whether within or without the Presidency of Madras.
The expression 'remove' would undoubtedly indicate and postulate the previous existence of a suit which was being removed. It would, therefore, be not a proper construction of the clause to understand the word 'remove' as meaning 'to receive'. In this connection the terms of Clause 12 may usefully be compared with those employed in Clause 13. In the earlier clause the words used are 'to receive, try and determine.' The contrast cannot be missed. The framers of the Letters Patent therefore drew distinction between the power 'to receive' conferred by Clause 12 and the power 'to remove' referred to in Clause 13. Learned Counsel for the petitioner urged that as the Court had the power not merely to remove but also to try and determine, these powers might be read in a distributive sense so that the power to try might so to speak be disannexed from the power to remove, so as to make it independent of 'remove'. I am wholly unable to accept this argument as doing violence both to the grammar as well as to the sense of the clause. There cannot be a power to try a suit without a power to receive and Clause 12 of the Letters Patent would confine the power to receive the plaint to the class of suits referred to in the clause. If this argument about Clause 13 were rejected, there cannot be any basis for the jurisdiction of this Court to receive a plaint merely because the mofussil Courts are closed for the summer vacation. No doubt in the application a reference is made to Section 151, Civil Procedure Code, but that can apply only to the exercise of jurisdiction when once the matter is before the Court and cannot confer jurisdiction to entertain a proceeding.
6. I Learned Counsel drew my attention to the Privy Council decision reported in In the matter of Candas Narrondas Navivahu , but I am unable to derive any assistance from these decisions for deciding any point about the construction of Clause 13 of the Letters Patent.
7. Learned Counsel faintly suggested that there had been some extension of the jurisdiction of this Court by virtue of the provisions of the Constitution and in particular learned Counsel referred me to Article 226. But I am unable to take this argument seriously. I do not, therefore, propose to spend more time over it.
8. I have up to now discussed the matter on principle and will now refer to the authorities, besides the decision of Ramesam, J., which I have already referred to. The next occasion when this matter was before this Court was in Krishna Mudaliar v. Sabapathi Mudaliar (1945) M.L.J. 14 : I.L.R. (1945) Mad. 389 when the Full Bench had to consider the power which this Court could exercise when a suit pending in a mofussil Court was removed to this Court during the vacation. The exact decision does not bear upon the point now under consideration but in my judgment this decision of the Full Bench is important in that the decision of Ramesam, J., in Jumna Bai v. Ramanathan Chettiar : AIR1929Mad29 , was referred to by Leach, C.J., with approval. Indeed that was the basis upon which the decision rested. I may refer to the decision of the Privy Council in Moulvi Hamid Hassan Nomani v. Banwarilal Roy (1947) 2 M.L.J. 32 : 1945 F.L.J. 50 : I.L.R. (1948) 1 Cal. 230 : L.R. 74 IndAp 120, where the Privy Council had to consider whether the jurisdiction to issue prerogative writs was or was not part of the ordinary civil jurisdiction of the Court and the question was answered in the affirmative. At page 36 of the report Extraordinary Original Civil Jurisdiction was stated to be that to remove, try and determine suits falling within or without the Presidency towns, and reference was also made to Clause 28 of the Letters Patent, as indicating the scope of Clause 13.
9. The only decision which runs counter to the above is that of Ramaswami Goundar, J., in S.R. No. 14537 of 1957 where the learned Judge followed the decision of Basheer Ahmed Sayeed, J., in Sundaresan Chettiar v. Allirani Ammal : (1956)2MLJ12 . Basheer Ahmed Sayeed, J., was dealing with a petition under the Guardians and Wards Act. Under Clause 17 of Letters Patent the jurisdiction of the High Court over infants an lunatics extends over the entire Presidency. Consequently this jurisdiction was not treated as part of the ordinary original civil jurisdiction of the Court under Clause 12 or as part of the extraordinary original civil jurisdiction of the Court under Clause 13. The considerations therefore which are relevant to the jurisdiction in regard to infants are totally different from those applicable to ordinary civil actions. Ramaswami Gounder, J., however, held that the decision of Basheer Ahmed Sayeed, J., could be applied to ordinary civil suits. With due respect to the learned Judge I am unable to agree with him. By reason of the settled practice of this Court as well as the principle of stare decisis the rule laid down in Jamna Bai v. Ramanathan Chettiar : AIR1929Mad29 , had to be followed until it is altered by the Legislature. I have also pointed out that this decision has received the approval of the Full Bench in Krishna Mudaliar v. Sabapathi Mudaliar (1945) M.L.J. 14 : I.L.R. (1945) Mad. 389 and this is an additional reason why the principle laid down; there cannot be departed from.
10. In my judgment therefore this Court has no jurisdiction to entertain the plaint which would be returned to the petitioner.