Skip to content


Rameshwar Dubey Vs. Jogindra Lal Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 1436 of 1965
Judge
Reported inAIR1968Cal234
ActsCalcutta Municipal Act, 1951 - Sections 73 and 74(2); ;Code of Civil Procedure (CPC) , 1908 - Sections 4, 8 and 151 - Order 39, Rule 2; ;Presidency Small Cause Courts Act, 1882 - Section 9
AppellantRameshwar Dubey
RespondentJogindra Lal Saha and ors.
Appellant AdvocateB.C. Dutt and ;G.S. Rawant, Advs.
Respondent AdvocateP.N. Mitter and ;P.G. Ghose, Advs. (for No. 2), ;P.S. Basu and ;Pantosh Mukherjee, Advs. (for Nos. 3 and 4), ;Rewanta Krishna Mazumder, Adv. (for No. 1) and ;Malay Kumar Basu, Adv. (for No. 5)
Cases ReferredUnion of India v. Ramcharan
Excerpt:
- .....is a petition under article 227 of the constitution as well as under section 115 of the code of civil procedure against an order of the chief judge. presidency small causes court, calcutta rejecting an application for injunction. the petitioner filed an application before the chief judge disputing the validity of an election of n councillor under the calcutta municipal act. 1951 the petitioner filed also an application for injunction restraining the opposite party no. 2 from exercising the function of the councillor of the calcutta corporation on the ground mentioned therein. this application for injunction was rejected by the chief judge, small causes court, calcutta on the ground that he had no authority to issue an injunction.2. mr. dutta, who appears on behalf of the petitioner.....
Judgment:
ORDER

P. Chatterjee, J.

1. This is a petition under Article 227 of the Constitution as well as under Section 115 of the Code of Civil Procedure against an order of the Chief Judge. Presidency Small Causes Court, Calcutta rejecting an application for injunction. The petitioner filed an application before the Chief Judge disputing the validity of an election of n Councillor under the Calcutta Municipal Act. 1951 The petitioner filed also an application for injunction restraining the opposite party No. 2 from exercising the function of the Councillor of the Calcutta Corporation on the ground mentioned therein. This application for injunction was rejected by the Chief Judge, Small Causes Court, Calcutta on the ground that he had no authority to issue an injunction.

2. Mr. Dutta, who appears on behalf of the petitioner says that the Chief Judge, Small Causes Court by virtue of Sections 73 and 74 of the Calcutta Municipal Act is an election court and because it is an election court, therefore, it is civil court and because it is a civil court, the entire Code of Civil Procedure will be attracted and because the Code of Civil Procedure is attracted, the Chief Judge has the power to issue injunction under Order 39 Rule 1 as well as Order 39 Rule 2 of the Code of Civil Procedure and in any case he has the power to issue injunction under Section 151 of the Code.

3. Stated in the aforesaid manner, the rule must be discharged on the argument of Mr. Dutta. If it is accepted that the Chief Judge is a civil court and if it is further accepted that he is to follow the Code of Civil Procedure, the petition under Order 39 Rule 2 of the Code of Civil Procedure being rejected by the trial court, an appeal would lie to this Court against such rejection if an appeal lies to this Court, no petition under Section 115 of the Code of Civil Procedure would lie and, therefore, the rule should be discharged on that ground.

4. But the point urged, would then remain unanswered. As the matter has been argued by the lawyer for both sides, I am called upon to express my opinion on the matter.

5. Mr. Mitter's reply is that the Chief Judge is a court but not a civil court. He is the Chief Judge of the Small Causes Court and a special jurisdiction being granted to an existing court without any provision relating to procedure to be followed, it will follow its own procedure. Further Section 576 of the Calcutta Municipal Act provides for adopting the procedure as in Presidency Small Cause Courts Act. Mr. Mitter further urges that the Presidency Small Cause Courts Act does not empower that Court to entertain a petition for injunction as under Order 39 Rule 2 of the Code. According to Mr. Mitter. If that power has been refused such power cannot be granted, indirectly invoking the aid of Section 151 of the Code.

6. The first point is whether the Chief Judge, Presidency Small Causes Court. Calcutta is a civil court when he decides election cases. Section 73 of the Calcutta Municipal Act provides:

'. . . .If the validity of an election is disputed ..... and person enrolled in the electoral roll may....apply to the Chief Judge, Small Causes Court, Calcutta.' Hence the reference is to the court and not to a persona designata. Mr Mitter refers to the case of Central Talkies Ltd. Kanpur v. Dwarka Prasad. : 1961CriLJ740 to show what 'persona designata' means. But it is not the argument of any party that the Chief Judge is a 'persona designata'. Hence I need not consider that aspect.

7. The next question is whether it is a civil court. The Chief Judge of the Small Causes Court, Calcutta decides cases of a civil nature, but its jurisdiction is limited. It has no jurisdiction to try all suits of a civil nature but it has jurisdiction to try suits or applications of a special nature as defined in the Presidency Small Cause Courts Act. The Chief Judge of the Small Causes Court has no ordinary original jurisdiction with regard to matters of a Civil nature. It has original civil jurisdiction but not ordinary and it is of a special nature. Civil courts in West Bengal are constituted under the Bengal, Agra and Assam Civil Court Act. The Court of the Chief Judge.Small Causes Court is not a Court under that statute. It is a court constituted under the Presidency Small Cause Courts Act.

8. But the point is not in defining the character of the court but in defining the procedure which will govern it. According to Mr. Dutt the Code of Civil Procedure will govern its procedure. The Code of Civil Procedure by its preamble will govern the procedure of 'Courts of Civil Jurisdiction'. The Small Causes Courts are courts of Civil Jurisdiction as distinct from Criminal Jurisdiction and Revenue Courts. Hence the preamble includes such court. But Section 4 of the Code of Civil Procedure provides as follows:

'In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or. . . . . any special form of procedure prescribed by or under any other law for the time being in force.'.

The Presidency Small Cause Courts Act of 1882 was in force in 1908 when the Code of Civil Procedure was enacted. That Act is a special law because it related to certain specified matters. It is a local law for its area of operation is restricted to a locality defined in the Act and finally it prescribes a special form of procedure as laid down in the Act. Hence Section 4 of the Code of Civil Procedure will save the procedure as in the Presidency Small Cause Courts Act. Again if Section 4 is a general provision, Section 8 of the Code is special, where it is provided 'save as provided. . . the Provisions in the body of the Code shall not extend to any suit or proceeding in any court of the Small Causes'.

9. Hence ordinarily the procedure under the Code will not apply to Presidency Small Cause Courts.

10. Mr. Dutta accepts the position and says that it is so; but an election matter is a special matter assigned to the Chief Judge. Hence the procedure as in Small Cause Courts Act will not apply and the ordinary procedure as in the Civil Procedure Code will apply. Mr Dutta refers to Section 74(2) and says that the said sub-section gives a clear indication as to what the Chief Judge is and what is the Procedure to be adopted by him. The Chief Judge has powers of a Civil Court in specified matters and his order has not the effect of an order or a decree under the Presidency Small Cause Courts Act but has the effect of a decree of a Civil Court; hence it is urged that the Legislature clearly indicated that the Chief Judge would function as a Civil Court and the procedure to be adopted by the Chief Judge in relation to election matter would be, in accordance with the Code of Civil Procedure of 1908. Mr. Mitter, on behalf of the opposite party, has referred to Section 576 of the Calcutta Municipal Act, 1951 which deals with the procedure before Court of Small Causes. The first part of Section 576 of the said Act says as follows:

'(1) Whenever under this Act or under any rule made thereunder, any application, appeal or reference is made to a Court of Small Causes, the said Court may, for the purpose of any enquiry or proceeding in connection with such application, appeal or reference, summon and enforce the attendance of witnesses and compel them to give evidence and compel the production at documents by the same means and. as far as possible, in the same manner as is provided by the Presidency Small Cause Courts Act, 1882, or the Provincial Small Cause Courts Act, 1887, as the case may be; and, in all matters relating to such enquiry or proceeding, the said Court shall be guided generally by the provision of the said Presidency Small Cause Courts Act, or of the said Provincial Small Cause Courts Act, as the case may be, so far as the same are applicable.'

There are other provisions in Sub-rule (2) or (3) both of which refer to the Small Cause Courts Acts. Mr. Mitter's argument is that so far as the rules for summoning as well as enforcing the attendance of witnesses and for compelling them to give evidence are concerned the powers of a Civil Court and the powers of the Small Cause Court are the same. Therefore, this provision does not matter. But the second part makes it quite clear that whenever there be an application or an appeal or a reference to a court of Small Cause under the Calcutta Municipal Act the matter shall be determined under the provisions of the Presidency Small Cause Courts Act or the Provincial Small Cause Courts Act as the case may be. Mr Mitter, therefore, says as this matter has been referred to the Chief Judge, Presidency Small Cause Court it must be decided in accordance with the provision of the Presidency Small Cause Courts Act.

11. The Calcutta Municipal Act covers an area which is within the ordinary orginal jurisdiction of this Court and also an area within the jurisdiction of the District Judge. 24-Parganas. Therefore there is the reference to different courts which have jurisdiction over different localities within the city of Calcutta. Section 576 of the Calcutta Municipal Act. 1351 provides certain disputes under the Act to be referred to courts of local jurisdiction; if the dispute arises within the jurisdiction of the the Presidency Small Cause Court it would be referred to that Court and the procedure will be governed by that Act, if on the other hand, it is within another locality and within the jurisdiction of the Provincial Small Causes Court: in that case the matter would be referred to such Court and the procedure would be governed by the Provincial Small Cause Courts Act of 1887. I do not think that Section 576 is relevant for the purpose of determining the question raised. Section 576 is in Chapter XXXVI which lays down procedure1 for various matters including recovery of expenses andrecovery of certain dues. Section 576 is in the context of the procedure for recovery of expenses and as also for recovery of certain dues. It has no reference to election matter. There are the Special provisions in Sections 73, 74 and 75 for the election matter; hence Sections 73, 74 and 75 rule out Section 576. Hence in my opinion, Section 576 would not in any way help us in resolving the dispute. We have to interpret Sections 73, 74 and 75.

12. Section 74 provides that the Chief Judge, Small Cause Court 'may hold such enquiry as he deems necessary' But it does not say in what manner he win hold the enquiry. He will make an enquiry into those matters which he deems necessary and not in any other matter. The question is:-- 'in conducting that enquiry what is the procedure that is to be followed'? Nothing is expressly stated. Mr. Mitter has referred to the decision of Viscount Haldane L. C. In the case of National Telephone Co. Ltd. v. Post Master General, 1913 A.C. 546 at. p. 552 where it was held:

'When a question is stated to be referred to an established court without more, it, my opinion, imports that the ordinary incidents of the procedure of that court are to attach also that any general right of appeal from its decision likewise attaches'. The Judicial Committee in the case of Adaikappa Chettiar v. Chandrashekhara Thevar, reported in held at follows:

'Where a legal right is in dispute and the ordinary court of the country are ceased (seized?) of such disputes the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal rights claimed arises under a special statute which does not, in terms confer a right of appeal.' The two decisions aforesaid were referred to and followed by the Supreme Court in the case of National Sewing Thread Co. Ltd. v James Chadwick and Bros. Ltd. : [1953]4SCR1028 . Under Section 76 (1) of the Trade Marks Act of 1940 it was provided that an appeal would lie from any decision of the Registrar but the Act or the Rules made thereunder did not make any provisions with regard to the procedure to be followed by the High Court in such appeal. The Supreme Court held that the High Court had to exercise its appellate jurisdiction under Section 76 of the Trade Marks Act in the same manner as it exercised its other appellate jurisdiction. Under Section 73 Calcutta Municipal Act the election matter is referred to the Chief Judge, Small Cause Courts and under Section 74 he is directed to make an enquiry as he deems necessary but no special procedure has been laid down except as regard summoning, of enforcing the attendance of witnesses and compelling them to give evidence. Nothing has been said with regardto procedure in other matter. Because of the aforesaid decisions it 'imports that the ordinary incidents of procedure of that court are to attach.'

13. Mr. Dutt says that the reference to 'Civil Court' and to 'Code of Civil Procedure' in Section 74 (2) Indicates that the Code of Civil Procedure will apply. It may indicate so but that has not been provided. If it be considered to be a case of 'casus omissus' Lord Russell of Killowen in Hansraj Gupta v Official Liquidator reported in 'it is for others than the courts to remedy the defect' 'The others' have taken no step to remedy it within the last 15 years. The Supreme Court followed the aforesaid dictum in the case of Nalinakhya Basak v. Shyam Sunder reported in : [1953]4SCR533 . In the aforesaid case the legislature referred to 'decree of ejectment 'but that was held to exclude' orders for ejectment passed by the Presidency Small Cause Court. Calcutta'. Hence indications do not help in the absence of definite provisions and in absence of provision the rule of interpretation, as made by Lord Haldane and followed in this country will hold good.

14. Hence in election matters except to the extent specifically provided in Section 74 (2) of the Calcutta Municipal Act, the Chief Judge is to enquire into the matter as under the provisions of the Presidency Small Cause Courts Act.

15. Finally we have to decide whether that Act empowers the Chief Judge to grant (a) Injunction and further (4) power to grant injunction as prayed for.

16. Section 8(2) of the Code of Civil Procedure empowers the High Court to direct by notification that provisions of Code not inconsistent with the provisions of Presidency Causes may be extended with adoptation or modification to suits in Small Cause Courts. Calcutta. Section 94 of the Code of Civil Procedure which deals with injunction among other matters has been extended to the Small Cause Court. Calcutta by a Notification of this Court No 7989-G dated 3-1-49. But Section 94 of the Code provides that 'a court may. If so prescribed', 'grant a temporary injunction' Under Section 9 of the Presidency Small Cause Courts Act the High Court may by rules having the force of law prescribe the procedure to be followed by Presidency Small Causes Court The High Court has prescribed such rules. The relevant rule will be found in Chapter XXXVII part III. Rule (11 of the that Chapter empowers the court to grant injunction (i) when any property in dispute in suit is in danger of being wasted, damaged or alienated by a party to the suit or wrongfully sold in execution of the decree (i) when the defendant threatens or intends to remove or dispose of his property with a view in defraud his creditors. No rule having the force of law has beenprescribed to grant injunction in any other circumstances. Therefore, Order 39 Rule 2 of the Code would not apply to the Small Causes Court because Chapter XXXVII of the rules of practice and procedure does not include a rule similar to Order 39 Rule 2 of the Code of Civil Procedure. Hence the Chief Judge has certain powers to grant injunction but there is no rule having the force of law by which the Chief Judge of the Small Causes Court could grant an injunction of the nature prayed for.

17. The next point of Mr. Dutt is that Section 151 has been extended to all proceedings of the Court of the Small Causes by the very same Notification No. 7989-G dated January 3, 1949. Therefore that court will have inherent powers to grant injunction in conditions not referred to in the rules.

18. The Supreme Court considered the question of inherent powers in the case of Padam Sen v. State of Uttar Pradesh, reported in 0065/1960 : 1961CriLJ322 . In that case it has been found that the court has no inherent power under Section 151 to appoint a Commissioner to seize account books in possession of the plaintiff lest they be tam-pered with. It was held that 'powers saved under Section 151 are not powers over substantive rights which a litigant possesses A party has full right over his account books.'

19. Mr. Dutt has relied upon the case of Monoharlal v. Seth Hirlal, reported in : AIR1962SC527 . It was held by the Supreme Court that 'inherent jurisdiction of the Court to make orders' ex debito justitiae' is undoubtedly affirmed by Section 151 of the Code but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter the provided should normally be regarded as exhaustive.'

Hence the Chief Judge has normally no inherent jurisdiction to issue temporary injunction in the circumstances not covered by the provision of Chapter XXXVTI of the Rules. The question was whether a party can be restrained from proceeding with any suit in another court Whether a suit in another court is to be proceeded with is not a matter of substantive right: it refers to matters of procedure Therefore, it was held that the court may have inherent cowers under Section 151. Whereas in the case reported in 0065/1960 : 1961CriLJ322 substantive right of a person to possess his account books was sought to be interfered with and that was denied. In a case of Union of India v. Ramcharan, reported in : [1964]3SCR467 it was held that on the death of the respondent the court has no inherent power to implead the legal representatives as parties if there has been an abatement on the death of the said respondent and such abatement has not been set aside. In such cases as well invoking the inherent power the substantive rights of the heirs are sought to be affected. Hence, the decisions of theSupreme Court support the proposition, that court may exercise its inherent powers to grant injunction only in matters which relate to procedure and which does not affect substantive rights of a party; although by the law provided as under Order 39, Rule 1 or Rule 2 of the Code the courts have the power to grant injunction even in cases which may affect exercise of substantive rights temporarily. Hence, the Presidency Small Causes Court may grant injunctions to affect substantive rights in cases which come under Chapter XXXVI of the rules of that Court. It may also have the inherent power to grant injunction in matters relating to procedure under Section 151 of the Code as extended to that court. But that court has no power to grant an injunction to affect the substantive rights of any party, in cases other than those which come under Chapter XXXVII. The inherent powers of the court have been recognised in the Code of Civil Procedure and so ordinarily it refers to matters of procedure, ordinarily matters of procedure do not affect substantive right of the parties to the suit although there may be specified cases when the court may grant injunction which affect substantive rights of the parties temporarily. But so far as the power of court to grant injunction to affect substantive rights are concerned, they are recongnised to be beyond the scope of Section 151 and would be governed by express provisions of law. Under Section 94 as modified and extended to the Small Causes Court, no immoveable property can be attached and inherent powers cannot be invoked for attaching such properties. The injunction prayed for in the circumstances of this case is one which affects the substantive rights of an elected member to attend the meeting: such injunction, as is prayed for, does not refer to a matter of procedure but is sought to affect the substantive rights of the respondent.

20. I hold, therefore, such an injunction cannot be granted under Chapter XXXVII of the Rule or under the inherent powers of the Small Cause Court.

21. The result is the rule is discharged with costs, hearing fee assessed at 10 gold-mohurs.

22. Let, the records be sent down early.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //