1. This is an application for leave to appeal to the Federal Court from a decree of this Court made in a second appeal. The case was heard at first instance by the Subordinate Judge, First Court, Faridpur, who dismissed the plaintiffs' suit. On appeal this decision was reversed by the Additional District Judge of Faridpur. In second appeal to this Court the decree of the learned Additional District Judge was set aside and the decree of the learned Subordinate Judge restored.
2. The present application was filed on 17th November 1947 which was the day upon which this Court re-opened after the long vacation. The application was for leave to appeal to the Privy Council, but since the recent legislation, Act 1 [I] of 1948, the application must now be treated as an application for leave to appeal to the Federal Court.
3. The suit giving rise to these proceedings was brought by the plaintiffs for the recovery of a sum of Rs. 2500 which the plaintiffs claimed to be payable to them as market tolls on jute which Beparis bad sold to the defendant between Asar 1343 and Baisakh 1844, on land within the village of Khankhanapur in the Faridpur Collectorate. As I have stated, the learned Subordinate Judge dismissed the claim in its entirety, but the learned Additional District Judge set aside that decree and decreed the plaintiffs claim for Rs. 2040. That decree in its turn was set aside by this Court which dismissed the claim.
4. The proposed appellants contend in the petition for leave to appeal that the decree appealed from involved directly or indirectly property of the value of Rs. 10,000 or over. Alternatively, the proposed appellants submitted that the case was of great general importance and was a fit case in which a certificate for leave to appeal should be granted.
5. A preliminary objection was taken that this Court has no jurisdiction to entertain the application. The matter first came before a Division Bench which was of opinion that the question of jurisdiction was one of great importance and referred the application to a Full Bench. The application has accordingly been heard by this Bench of five Judges.
6. This suit was instituted in the Court of the Subordinate Judge at Faridpur. At the time it was heard and at the time the appeal to the Additional District Judge and the second appeal to this Court were heard Faridpur was within the jurisdiction of this Court. On 16th August 1947, however, the Province of Bengal was partitioned and Faridpur is now within Eastern Pakistan and is no longer within the jurisdiction of this Court. Quite clearly, no appeal' would now lie to this Court from any decree of a Subordir ate Judge of Faridpur or from an appellate decree of a District Judge of Faridpur. Such appeals would now undoubtedly lie to the High Court of East Bengal at Dacca. The second appeal, however, was decided by this Court before 15th August 1947, that is, before partition and this Court bad undoubted jurisdiction to hear the appeal. The question which now arises is whether this Court can entertain any application for leave to appeal to the Privy Council or the Federal Court or whether the application for leave to the Privy Council should be made to the High Court ,at Dacca. The matter assumes greater importance still because by recent legislation appeals from this Court now lie to the Federal Court and all applications for leave to appeal to the Privy Council must now be treated as application for leave to appeal to the Federal Court. No Supreme Court has yet been set up for Pakistan and the High Court of East Bengal can only grant leave to appeal to the Privy Council. The decision as to which Court has jurisdiction is therefore of the greatest importance to the parties concerned in this application.
7. Before the partition of Bengal took place two orders were promulgated by the Governor-General in Council, namely, the High Court (Calcutta) Order, 1947, and the High Courts (Bengal) Order, 1917. These orders made provision for jurisdiction over the two portions of Bengal which were created as a result of the partition.
8. The High Court (Calcutta) Order, 1947, provided by Article 3 that.
The High Court in Calcutta shall continue to exist on and after the appointed day, and shall, save as expressly provided by the High Courts (Bengal) Order, 1947, have all such original, appellate and other jurisdiction as it had immediately before that day.
9. It is to be observed that no further attempt in made in this Order to define the jurisdiction of this Court. This Court retains all its original, appellate and other jurisdiction except where such has been expressly taken away from it by the High Courts (Bengal) Order, 1947. This latter order must therefore be examined to see whether this Court has jurisdiction to hear this application for leave to appeal.
10. The High Courts (Bengal) Order, 1947, created a new High Court for East Bengal and gave that High Court jurisdiction. Article 3 of that Order provides;
As from the 15th day of August, 1947 (hereinafter refered to as 'the appointed day), there shall be a High Court of Judicature for the Province of East Bengal; and the said Court is hereinafter referred to as the High Court of East Bengal.
Article 5 of the Order providts:
The High Court of East Bengal shall be a Court of record, and shall have, in respect of the territories for the time being included in the Province of East Bengal, all such swell original, appellate and other jurisdiction as, under the law in force immediately before the appointed day is exercisable in respect of the said territories by the High Court in Calcutta.
Article 13 of the Order is in these terms:
(1) Subject as hereinafter provided, the High Court in Calcutta shall have no jurisdiction in respect of the ferirtories for the time being included in the Province if East Bingal.
11. It will be seen from the above provisions that the High Court of East Bengal was given exclusive jurisdiction over the territory known as East Bengal created as the result of partition. It was further provided that subject to the provisions of Article 13 of the Order the High Court in Calcutta should have no jurisdiction in respect of the territories included in the Province of East Bengal.
12. It is, however, provided by para. (2) of Article 13 that all matters pending on the Original Side of this Court including any proceedings pending in this Court as a Court of reference shall be continued and decided in this Court. Further, appeals from decrees and orders of the Original Side in such proceedings are also to be decided in this Court and the High Court of East Bengal is given no jurisdiction to determine such appeals. It is to be observed that the word 'no' has been omitted between the words 'have' and 'jurisdiction' in para. (2)(b) of this Article. It is further provided that this Court shall have sole jurisdiction to review any order made by a Judge of this Court and the High Court of East Bengal shall have no jurisdiction to review any such order.
13. Paragraph (8) of the Article deals with proceedings pending on the Appellate Side and it provides that:
Subject to the preceding provisions of this Article, all proceedings pending on the appellate side of the High Court in Calcutta immediately before the appointed day, shall, where the Court of origin is, as from that day, situated in the Province of East Bengal, stand transferred by virtue of this Order to the High Court of East Bengal.
14. This paragraph makes it clear that all proceedings pending on the Appellate Side of this Court on 15th August where the Court of origin is now in East Bengal, were transferred automatically to the High Court of East Bengal. One of the questions which arises in this case which will be discussed later is whether there was any proceeding pending in this Court in respect of this matter on 15-8-1947.
15. Paragraph (4) of Article 13 provides:
Subject to the following provisions of this Article with respect to appeals, any order made by the High Court in Calcutta either:
(a) before the appointed day; or.
(b) in any proceedings with respect to which the said High Court retains jurisdiction by virtue of paras. (2) and (3) of this Article:
shall for all purposes have effect not only as an order of the High Court in Calcutta but also as an order made by the High Court of East Bengal.
16. The meaning of this, paragraph is not very clear because it is difficult to see what jurisdiction this Court retains by virtue of para. (3) of this Article. Paragraph (3) provides that all pending cases should be transferred and presumably para. 4 (b) refers to the two paras. 2 and 3 because para. 3 opens with the words 'subject to the preceding provisions of that Article.
17. Paragraph (7) provides that the term 'High Court' used in the Order shall be construed as including a reference to a Judge or a Division Bench and then the paragraph proceeds:
and for the purposes of this Article proceedings shall be deemed to be pending in a particular Court until that Court has disposed of all issues between the parties including any issues with respect to the taxation of the costs of the proceedings.
18. The learned Advocate-General who appeared as amicus curia to assist the Court suggested that para. (7) of Article 13, referred only to the Original Side of this Court, that is, had only reference to Article 13 (2)(a). But it appears to me that para. (7) is really intended as a definition clause. It defines 'High Court', i.e., both the Original and Appellate Sides of the Court, and also defines what are pending proceedings. A proceeding in the terms of this paragraph must be deemed to be pending unless the Court has disposed of all issues between the parties including any issues with respect to the taxation of the costs of the proceedings. Until all that has been done the case has not been disposed of by this Court and must for the purposes of the High Courts (Bengal) Order, 1947, be regarded as pending.
19. It was first suggested that this Court had no jurisdiction to deal with this application because it was a matter pending before this Court on 15-8-1947, and therefore the proceeding stood transferred to the High Court of East Bengal by reason of para. (3) of Article 13. In my view, however, it is impossible to say that there was any proceeding pending in connection with this case on 15-8-1947. The second appeal in this Court was disposed of on 26-5-1947. It is true that the plaintiff whose suit had been dismissed by this Court had a right to apply for leave to appeal to the Privy Council, He, however, had not done so on 15-8-1947 and it appears to me that on that day no proceeding was actually pending in this Court. The second appeal had been disposed of and the decree had been drawn up. There was no issue between the parties which had not been disposed of, neither is it suggested that there was anything relating to costs still undecided. As far as this Court wa3 concerned the litigation was concluded and such was the position on 15-8-1947.
20. It might be contended however that proceedings in this Court would be pending until the decree made in the second appeal became final or, in other words, until the period given to prefer an application for leave to appeal to the Privy Council had expired. In my view, how-ever, a proceeding cannot be regarded as pending 'in this Court because fresh subsequent proceedings are possible. The proceeding was either pending or not on 15-8-1947. The proceeding could not, in my view, be in a state of suspended animation. Applications for leave to appeal might well be made long after the ninety days given to appeal had expired. The application could be presented together with an application for extension of time under Section 5, Limitation Act and such could be done at any time after the expiration of the ninety days given for appeal. It would be impossible to hold that proceedings in this Court were pending for such an indefinite period. In fact it would be quite impossible to say that proceedings had ever terminated because at any time an application for leave to appeal might be filed with an application asking the Court to condone the delay.
21. Applying the definition of pending proceedings given in para. (7) of Article 13, High Courts (Bengal) Order, 1947, I think it mutt be held that tie proceedings in connection with this case had terminated in this Court long before 15-8-1947. That being so, the High Court of East Bengal could not obtain jurisdiction by reason of the proceedings being automatically transferred to that Court under para. (3) of Article 13.
22. If the proceedings were not pending in this Court on 15th August, then this application for leave to appeal must be regarded as a new or fresh proceeding. The question therefore arises whether this Court can entertain a new or fresh proceeding relating to an appeal from the Courts of Faridpur which are now situate in Eastern Bengal territories. I have already referred to Article 13 (1), High Courts (Bengal) Order, 1947 which provides that the High Court in Calcutta shall have no jurisdiction in respect of the territories for the time being included in the Province of East Bengal, though it is provided by Article 3, High Court (Calcutta) Order, 1947 that this High Court shall have all such original, appellate and other jurisdiction as it cad immediately before the appointed day, unless it has been expressly taken away from it by the High Courts (Bengal) Order, 1947.
23. It was urged on behalf of the proposed appellant that there was nothing in the High Courts (Bengal) Order, 1947, which expressly took away the jurisdiction of this Court to deal with this application for leave to appeal. In my view, however, the jurisdiction of this Court is expressly taken away by the terms of Article 13 (1), High Courts (Bengal) Order, 1947.
24. As I have stated previously, the subject-matter of this litigation was the right of the plaintiff to levy certain tolls in respect of sales made within the confines of a village called Khankhanapur which admittedly lies within the territories of Eastern Bengal. The learned Advocate. General submitted that Article 13 (1), High Courts (Bengal) Order, 1947 could only apply to suits or claims to land or to interests in land forming part of the territories of Eastern Bengal and appeals arising out of such suits or claims, But in my view that is placing too narrow a construction on Article 13 (1). That Article provides that the Calcutta High Court shall have no jurisdiction in respect of the territories included in the Province of East Bengal. It Appears to me that it is wide enough to cover all appeals or matters connected with appeals in suits instituted in what is now Eastern Bengal and decided by Courts now within those territories. In short, if the dispute was adjudicated upon in Courts now in the territories of Eastern Bengal then this Court can have no jurisdiction by reason of Article 13 (1), High Courts (Bengal) Order, 1947. If this Court exercised jurisdiction it would be exercising jurisdiction in respect of territories for the time being included in Eastern Bengal. It would be exercising jurisdiction in respect of decisions of Courts now no longer within its jurisdiction and such jurisdiction is not reserved to this Court by any of the exceptions to Article 13, High Courts (Bengal) Order.
25. During the argument reference was made to Bench decisions of this Court in Reported in : AIR1948Cal303 in which it was held that this Court had jurisdiction to deal with the matters arising in these cases. These cases, however, are entirely different, as one was an application for extending the time to put in Use amount of paper book costs due on a supplementary estimate and the other was an application relating to the appointment of a guardian ad liter of a minor respondent. In both these cases this Court had granted leave to appeal before 15th August 1947. It was argued in those cases that the proceedings were pending, but the Bench held that this Court had jurisdiction. It was suggested that this Pull Bench should express an opinion as to the correctness or otherwise of these two decisions. But in my view the questions decided in those two applications do not arise in the present case. In the case before us, it has been held that the proceedings are not pending and the questions which arose in the applications before the Bench to which I have referred cannot arise in this case. Anything that would be said in this case concerning those Bench decisions would be purely obiter and therefore of no binding force. That being so, I prefer to express no opinion as to the correctness or otherwise of the Bench decisions on those two applications to which I have made reference.
26. For the reasons which I have given I am satisfied that this Court has no jurisdiction to deal with the application for leave to appeal and I would order the same to be returned to the proposed appellants. In the circumstances I would make no order as to costs.
27. In conclusion, I take this opportunity to thank the learned Advocate General on behalf of the Court for the exhaustive and able argument which he addressed to us as amicus curiae at the request of the Court.
28. I agree.
B.K. Mukherjea, J.
29. I agree.
S.R. Das, J.
30. I agree.
31. I agree.