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R. Ray Vs. V.G. Dalvi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberS.B. Ref. in A.F.O.D. No. 424 of 1959
Judge
Reported inAIR1963Cal380,65CWN191,[1962(5)FLR154]
ActsCalcutta City Civil Court Act, 1953 - Sections 5, 5(1), 6, 7, 9 and 9(2); ;Code of Civil Procedure (CPC) , 1908 - Section 20
AppellantR. Ray
RespondentV.G. Dalvi and ors.
Appellant AdvocateK.B. Roy and ;S.N. Samajdar, Advs.
Respondent AdvocateN.C. Sen, ;B.S. Bagchi, ;S.M. Mukherjee and ;N.C. Ganguly, Advs.
Cases ReferredBeatrice Ezekiel Jacob v. Ezekil Jacob
Excerpt:
- bachawat, j.1. this reference arises out of a dispute between an un-incorporated association, named the all india postal employees' union, having its head quarters at delhi and its west bengal circle branch. the plaintiff appellant claims to be a member as also a secretary of the west bengal circle branch. the defendant no. 1 is the general secretary and the defendant no. 2 is the deputy general secretary of the all india postal employees' union head quarters. these defendants do not reside, carry on business or personally work for gain in the city of calcutta. the plaintiff instituted a representative suit in the city civil court for a declaration that a certain order of suspension of the west bengal circle branch passed by the defendant no. 1 on the 24th june, 1958, is illegal, void and.....
Judgment:

Bachawat, J.

1. This Reference arises out of a dispute between an un-incorporated association, named the All India Postal Employees' Union, having its head quarters at Delhi and its West Bengal Circle Branch. The plaintiff appellant claims to be a member as also a secretary of the West Bengal Circle Branch. The defendant No. 1 is the General Secretary and the defendant No. 2 is the Deputy General Secretary of the All India Postal Employees' Union head quarters. These defendants do not reside, carry on business or personally work for gain in the city of Calcutta. The plaintiff instituted a representative suit in the City Civil Court for a declaration that a certain order of suspension of the West Bengal Circle Branch passed by the defendant No. 1 on the 24th June, 1958, is illegal, void and liable to be set aside and consequential injunction restraining the defendants from giving effect to the order. The plaintiff contended that part of the cause of action for the suit arose on the service of the suspension order on the plaintiff in the city of Calcutta. The defendants disputed this contention. They also urged that assuming that a part of the alleged cause of action arose in the city of Calcutta, the City Civil Court had no jurisdiction to try the suit inasmuch as prior leave of the Court to institute the suit had not been obtained. One of the issues raised was 'has the Court jurisdiction to try the suit?' The learned Judge of the City Civil Court answered the issue in the affirmative. On the merits he dismissed the suit. The plaintiff preferred an appeal to this Court. In the appeal the defendant respondents repeated their contentions that the City Civil Court had no jurisdiction to try the suit. On the assumption that a part of the cause of action arose in the city of Calcutta one of the questions debated before the Division Bench was whether Section 20 of the Code of Civil Procedure, 1908 applied to the City Civil Court or whether that Court was governed by Clause 12 of the Letters Patent of the Calcutta High Court. If Section 20 C.P.C., 1908, applied, the suit could be instituted in the City Civil Court without obtaining prior leave of the Court to institute the suit; whereas if Clause 12 of the Letters Patent applied the suit was not competent unless prior leave of the Court to institute the suit wasobtained by the plaintiff. The Division Bench acting under Chapter II Rule 1 (ii) in Part I of the Appellate Side Rules referred to a Special Division Bench the following questions :

(a) 'Whether Section 20, and Section 20(c) in particular, of the Code of Civil Procedure, apply to the City Civil Court, or whether, in such matters, the City Civil Court is governed by Clause 12 of the Letters Patent.

(b) 'If the City Civil Court is at all governed by Clause 12 of the Letters Patent, whether a suit, in which part only of the cause of action arose within the territorial jurisdiction of that Court, instituted without leave of the City Civil Court, becomes incompetently instituted and therefore, not maintainable.'

2. The City Civil Courts Act, 1953, was passed with a view to establish an additional Civil Court for the city of Calcutta. The additional Court called the City Civil Court was established by a Notification issued by the State Government under Section 3 of the Act. Section 4 provides for constitution of the Court and the appointment of its Judges. Sections 5, 6 and 7 of the Act are as follows:-

5. Jurisdiction. (i) 'The local limits of the jurisdiction of the City Civil Court shall be the City of Calcutta.'

(2) 'Subject to the provisions of Sub-sections (3) and (4) and of Section 9, the City Civil Court shall have jurisdiction and the High Court shall not have jurisdiction to try suits and proceedings of a civil nature, not exceeding rupees ten thousand in value.'

(3) 'The City Civil Court shall have jurisdiction dud the High Court shall not have jurisdiction to try any proceeding under -

(i) the Guardians and Wards Act, 1890 (VIII of 1890), and

(ii) Part X of the Indian Succession Act, 1925 (XXXIV of 1925), in respect of succession certificates.'

'(4) The City Civil Court shall not have jurisdiction to try suits and proceedings of the description specified in the First Schedule.'

(5) 'All suits and proceedings which are not triable by the City Civil Court shall continue to be triable by the High Court or the Small Cause-Court or any other Court, tribunal or authority, as the case may be, as heretobefore.'

6. Procedure. 'Save as otherwise provided in this Act, the Code of Civil Procedure, 1908 (Act V of 1908) shall apply to all suits and proceedings under this Act so far as it is consistent with this Act.'

7. Law to be administered by the City Civil Court. 'All questions, other than questions relating to procedureor practice, which arise in suits or proceedings before the City Civil Court,shall be dealt with and determined according to the law for the time being administeredby the High Court in. the exercise of its ordinary original Civil jurisdiction''.

3. Section 5 Sub-section (1) defines the locallimits of the territorial jurisdiction of the Court.Within those limits the officers of the Court can directly serve its processes and enforce its writs. The effect of Section 5 Sub-sections (2), (4) and (5) read with Section 21 is that the City Civil Court has now jurisdiction and the High Court has now no jurisdiction to try a suit or a proceeding of a civil nature which is of a value not exceeding rupees ten thousand and which is not of the description specified in the First Schedule to the Act.

4. The City Civil Court is an inferior Court of limited jurisdiction. Section 5 prescribes the limits of its territorial and pecuniary jurisdiction and also defines the subject-matters over which it can have no jurisdiction. The section does not specially lay down the conditions upon which the Court can assume jurisdiction to entertain and try a suit. As in the case of other Civil Courts, those conditions are left to be regulated by Section 16 to 20 of the Code of Civil Procedure, 1908. The Code is made applicable to the City Civil Court by Section 6 of the Act. Section 80 of the Code, therefore, applies to the City Civil Court. By Section 20 of the Code, subject to the limitation contained in the preceding sections, a suit may be instituted in the City Civil Court if the cause of action arises wholly or in part within the city of Calcutta. The section does not require that the prior leave of the Court must be obtained in a case where the cause of action arises in part only within the local limits of its jurisdiction.

4a. Section 5 Sub-section (3) confers upon the City Civil Court jurisdiction to try proceedings under the Guardians and Wards Act, 1890 and part X of the Indian Succession Act, 1925 in respect of succession certificates and takes away the existing jurisdiction of the High Court in respect of those matters. Here again the conditions upon which the City Civil Court can assume jurisdiction to try these special proceedings are left to be determined by those special Acts. For this purpose Section 22 and the Second Schedule to the Act make suitable amendments in both the Guardians and Wards Act, 1890 and the Indian Succession Act, 1925. But for those amendments the City Civil Court could not assume jurisdiction to try the proceedings under those special Acts. It is to be noticed, however, that the City Civil Courts Act does not amend Clause 12 of the Letters Patent so as to provide that the City Civil Court must assume jurisdiction to try suits in conformity with the provisions of Clause 12.

5. But Mr. Sen contended that Clause 12 of the Letters Patent is made applicable to the City Civil Court by Section 7 of the Act and that consequently Section 20, C.P.C., is not consistent with Section 7 and cannot apply to the City Civil Court. He strenuously contended that (a) the Letters Patent which defines the ambit of the High Court's jurisdiction is a law administered by the High Court in its Ordinary Original Civil Jurisdiction, (b) that consequently Clause 12 of the Letters Patent prescribes the conditions upon which the City Civil Court can assume jurisdiction to entertain and try suits. I am unable to accept these contentions.

6. There is an ancient and well-recognised distinction between the jurisdiction of and the law administered by the High Court at Calcutta. The distinction is made in the Letters Patent itself.Clauses 11 to 12 of the Letters Patent give the High Court its ordinary Original Civil Jurisdiction whereas Clause 19 provides for the law to be administered by the High Court in the exercise of that jurisdiction. Similar distinction between its other jurisdictions and the law administered in those jurisdictions are made in Clauses 13 and 20, in Clauses 15, 16 and 21 and in Clauses 22 to 29 and 30. This distinction between the jurisdiction of and the law administered by the High Court is maintained to Sections 106 and 112 of the Government of India Act, 1915, in Section 223 of the Government of India Act, 1935 and in Article 225 of the Constitution of India. The jurisdiction of the High Court, is derived from the High Courts Act, 1861 and the Letters Patent and is continued by subsequent laws and in the exercise of its several jurisdictions the High Court administers diverse substantive laws. The Letters Patent is not a substantive law and as such is not a law within the meaning of the expression 'the law administered by the High Court.'

7. The High Court at Calcutta exercises its Ordinary Original Civil Jurisdiction as the direct successor of the former Mayor's Court and Supreme Court. The Mayor's Court was established in the city of Calcutta by the Charter dated the 24th September, 1726. This Charter introduced in the city of Calcutta the substantive common law both civil and criminal as also the statutory law as it prevailed in England in 1726 as far as those laws could properly be applied to Indian conditions, see Advocate General of Bengal v. Ranee Surnomoyee Dassee, 9 Moo Ind App 387 at p. 430 (PC). The Mayor's Court used to administer these laws as also much other laws as were made applicable to the case by the Regulations and the Statutes. Subsequently the Mayor's Court was abolished and in its place the Supreme Court was established by the Charter of 1774. The Supreme Court continued to administer substantially the same body of laws as was previously administered by the Mayor's Court. The Act of Settlement of 1781 especially provided for the administration of the Hindu and Muslim laws in certain cases. In the muffasil, outside the City of Calcutta, the Courts of Justice were the East India Company's Courts called the Dewanny and Fouzdari Adawlats from which appeals lay to the Sudder Dewany and Nizamat Adawlats. These Courts used to administer the indigenous Hindu and Muslim laws where those laws could be applied and in the absence of any special law applicable to the case, justice, equity and good conscience. The Supreme Court derived its authority from the English Crown whereas legally the Company's Courts derived their authority from the Moghul Sovereign. The Supreme Court as also the Sudder Courts were abolished and in their place the High Court was established by the High Courts Act, 1861 and the Letters Patent issued under it. But in spite of the fusion of the superior courts there was no fusion of the laws respectively administered by them. Under the High Courts Act, 1861 and the Letters Patent issued under it, the High Court inherited the jurisdiction formerly exercised by the Supreme Court. Clause 18 of the Letters Patent of 1862 provided that the High Court in the exercise of its Ordinary Original Civil jurisdiction shall continue to administer thesame laws which would have been applied by the Supreme Court to such a case if the Letters Patent had not been issued. Clause 19 of the Letters Patent of 1865 which replaced the Letters Patent of 1862 provided for the continued administration of those laws by the High Court in the exercise of its Ordinary Original Civil Jurisdiction.

8. It is plain enough that the object of Clause 19 of the Letters Patent of 1865 was to preserve the substantive laws hitherto administered in that jurisdiction. The point is emphasized in paragraph 24 of the despatch from the Secretary of State accompanying the Letters Patent of 1862. The law for the time being administered by the High Court in the exercise of its Ordinary Original Civil Jurisdiction is the substantive law preserved by Clause 19 of the Letters Patent and all subsequent laws which of their own force are required to be so administered. The expression 'the law for the time being administered by the High Court in the exercise of its Ordinary Original Civil Jurisdiction' in Section 7 of the City Civil Court Act, 1953 is used in the same sense and means the substantive laws administered in that jurisdiction. Clause 12 of the Letters Patent is not such a law and is not therefore made applicable to the City Civil Courts by Section 7 of the City Civil Court Act, 1953.

9. The contention that Clause 12 of the Letters Patent prescribes the conditions for the assumption of jurisdiction by the City Civil Court to try suits' is baseless. Clause 12 of the Letters Patent defines the conditions upon which the High Court is empowered to receive, try and determine suits of every description. That clause does not speak of the condition upon which the City Civil Court may assume jurisdiction to entertain and try suits before it. The City Civil Courts Act has not amended the Letters Patent so as to provide that suits must be instituted in the City Civil Court in accordance and in conformity with the Letters Patent. By its own language the Letters Patent cannot apply to the City Civil Court.

10. The contention that Section 7 of the City Civil Court Act applies the Letters Patent of the High Court to the City Civil Court makes Section 5 Sub-section (1) of the City Civil Court Act, 1953 redundant. If this contention were accepted Clause 11 of the Letters Patent would fix the local limits of the jurisdiction of the City Civil Court. But this is an impossible contention. By its own language Clause 11 fixes the local limits of the jurisdiction of the High Court and not of the City Civil Courts. For this reason Section 5 Sub-section (1) expressly defines the territorial limits of the jurisdiction of the City Civil Court.

11. Mr. Sen contended that Section 9 Sub-section (2) (a) shows that Clause 12 of the Letters Patent applies to the City Civil Court. This contention is baseless. Section 9 confers upon the High Court the power to remove to itself a suit or proceeding instituted in the City Civil Court. By Section 9 Sub-section (2) (a) the suit so removed may be commenced de novo or from such stage as the High Court thinks fit as if it were a suit instituted in the High Court. This provision in no way indicates that the suit removed to the High Court must be instituted in the City Civil Court in conformity with the provisions of Clause 12 ofthe Letters Patent. The sub-section creates a legal fiction and no more. The suit although not originally instituted in the High Court may be proceeded with as if it were a suit instituted in the High Court.

12. The City Civil Court Act, 1953 follows the familiar pattern of legislation relating to Civil Courts. The Bengal Agra and Assam Civil Courts Act, 1887 (Act XII of 1887) is the basic law relating to Civil Courts in this State. By Section 13 of that Act the State Government is authorised to fix and alter the local limits of the jurisdiction of the Civil Courts. By Section 18 the District Judges and Subordinate Judge have jurisdiction to try all original suits and by Section 19 the Munsif has jurisdiction to try suits of a value not exceeding, the prescribed pecuniary limits. Section 37 prescribes the laws which are to be administered by the Civil Courts. The place of suing and the conditions upon which the Civil Courts may entertain suits are left to be regulated by the Code of Civil Procedure, 1908.

13. Incidentally it may be noticed that the same system of civil laws as were administered by the Company's Courts continue to be administered by the Civil Courts and by the High Court in its Appellate Jurisdiction as also in its Extraordinary Original Civil Jurisdiction by force of Section 37 of Act XII of 1887 and Clauses 21 and 20 of the Letters Patent.

14. The scheme of legislation in the Presidency Small Cause Courts Act XV of 1882 may also be noticed. Section 16 provides that the Court of Small Causes shall administer the same laws as are administered by the High Court in the exercise of its Ordinary Original Civil Jurisdiction. Section 18 limits its pecunary jurisdiction and Section 19 restricts the subject-matters over which it can have jurisdiction. Section 18 also expressly defines the conditions upon which the Court can assume jurisdiction to entertain and try suits. It is to be noticed that by Section 8 of the Code of Civil Procedure, 1908, Section 20 of the Code is made inapplicable to the Presidency Small Cause, Courts whereas by Section 6 of the City Civil Courts Act, Section 20 of the Code is made applicable to the City Civil Court.

15. I propose that the questions referred to this Bench be answered as follows:

Question (a): Section 20 including Section 20(c) of the Code of Civil Procedure applies to the City Civil Court. Subject to the limitations mentioned in Section 20 of the Code a suit may be instituted in the City Civil Court when the cause of action wholly or in part arises in the city of Calcutta. Leave of the Court to institute the suit in such a case is not required. Clause 12 of the Letters Patent of the High Court does not Apply to the City Civil Court.

Question (b): In view of the answer given above this question does not arise.

16. There will be no order as to the costs of the reference.

Sinha, J.

17. The facts in this case are shortly as follows : There is a Trade Union called the Nationals Federation of Posts and Telegraphs Employees. Aconstituent body of the said Union is the All India Postal Employees' Union, the membership of whichis open to all postmen and class IV postal employees, etc. The All India Postal Employees' Union has various branches or circles, having its head office in Calcutta. The plaintiff appellant, R. Roy claims to be the Secretary of the same. The defendant No. 1, P.G. Dalvi, is the General Secretary of the All India Postal Employees' Unionand the defendant No. 2, J. Akhtar, is the DeputyGeneral Secretary. By a letter dated June 24, 1958 addressed to Roy, Akhtar purported to suspend the West Bengal Circle Branch and appointedan ad hoc committee. Roy protested, without any result. Thereupon, he instituted a suit in theCity Civil Court of Calcutta, being Title Suit No. 158 of 1959, for a declaration that the purportedorder of Akhtar was without jurisdiction, ultra vires, illegal and void and asked for a perpetual injunction restraining the defendant from givingeffect to the same. The suit was framed as a representative suit under the provision of Order 1Rule 8 of the Code of Civil Procedure. One of the issues framed was whether the Court had jurisdiction to try the suit. It was held by the learned Third Judge, City Civil Court, on the 22nd August,1959 that the real cause of action arose on the service of the suspension order on the plaintiff, within the jurisdiction of the City Civil Court, Calcutta and the provisions of Section 20(c) of the C.P.Code applied and the Court had jurisdiction. There was an appeal to the High Court. A Division Bench presided over by Guha, J., was of the opinion that two points should be referred to a Special Division Bench. These points have beenset out in the judgment of Bachawat, J., and neednot be repeated here.

18. These questions have now come before us,and must be answered. The questions are in the general form, and the facts stated above are onlyset out for the purpose of showing how the question's arose in this case. Before us, it is concededthat if the Code of Civil Procedure applies, thenwhat would apply is Section 20(c). In otherwords, that a part of the cause of action hagarisen within the territorial limits of the City Civil Court, Calcutta. It is however contended that it is not the Code of Civil Procedure that is applicable, but Clause 12 of the Letters Patent. Under Clause 12 of the Letters Patent, if a part of thecause of action arises within the local limits of theordinary original civil jurisdiction of theHigh Court, then a suit may be filed in the said Court, provided that leave of the Court shall have been first obtained. This has been held to be acondition precedent to the assumption of jurisdiction. It is argued that Clause 12 of the Letters Patent applies to this case and as leave had not been obtained prior to the institution of this suit, the City Civil Court had no jurisdiction to entertain it. In other words, assuming that only a part of the cause of action arose within the jurisdiction,the Code of Civil Procedure does not require prior leave under Section 20(c), whereas if the matter is governed by Clause 12 of the Letters Patent, prior leave is a condition precedent, and it is admitted that prior leave had not been obtained. Howthis contest between the Code of Civil Procedure and the Letters Patent arises will appear from aconsideration of Sections 5, 6 add 7 of the City Civil Court Act (West Bengal Act XXI of 1953). The preamble to the Act says that it is an Act to establish an additional Civil Court for the City of Calcutta. Section 5 deals with 'jurisdiction'. Sub-section (1) lays down the territorial jurisdiction, being the area comprised within the local limits for the time being, of the ordinary original civil jurisdiction of the High Court. Sub-section (2) lays down the pecuniary jurisdiction. It has reference to Sub-sections (3) and (4) of Section 9. Sub-section (3) excludes the jurisdiction of the High Court in proceedings under the Guardians and Wards Act 1890 and Part X of the Indian Succession Act 1925, in respect of succession certificates, and confers the same upon the City Civil Court. Sub-section (4) excludes certain suits and proceedings from the jurisdiction of the City Civil Court and Sub-section (5) lays down that all suits and proceedings which are not triable by the City Civil Court shall be continued to be triable by the High Court or the Small Cause Court or any other Court which had been exercising jurisdiction. Sections 6 and 7 of Act XXI of 1953 are set out below:

'6. Save as otherwise provided in this Act, the Code of Civil Procedure 1908 shall apply to all suits and proceedings under this Act so far as it is consistent with this Act.

7. All questions other than questions relating to procedure or practice, which arise in suits or proceedings before the City Civil Court, shall be dealt with and determined according to the law for the time being administered by the High Court in the exercise of its ordinary original civil jurisdiction.'

19. Before I proceed further, I have to mention that the marginal note against Section 5 is 'jurisdiction' that against Section 6 is 'procedure' and that against Section 7 is 'law to be administered by the City Civil Court'.

20. Mr. Sen appearing on behalf of the respondent, has argued as follows: He says that questions of jurisdiction cannot be called either procedure or practice. On the other hand, it is to be considered as substantive law. Section 6 of the Act attracts the Code of Civil Procedure, but read with Section 7, it is clear that the Code of Civil Procedure would apply only to questions relating to procedure or practice. Since the question of jurisdiction is not a question of procedure or practice. Section 7 makes the appropriate law as administered by the High Court in the exercise of its ordinary original civil jurisdiction, relating to its own jurisdiction, applicable to the City Civil Court. In other words, Clause 12 of the Letters Patent is attracted. Upon a plain reading of Sections 6 and 7, it is clear that Section 6 attracts the whole of the Code of Civil Procedure unless it is excluded by any other provision in the Act. Under Section 7, the law for the time being administered by the High Court in the Exercise of its ordinary original civil jurisdiction would apply, but not on the question of procedure or practice. Therefore, that part of the Code of Civil Procedure applies, which relates to procedure or practice. We have now a competition between Section 20(c) of the Code of Civil Procedure and Clause 12 of the LettersPatent. If Section 20(c) relates to procedure or practice, then it would be attracted by Section 6 and will not be affected by Section 7. Even if Clause 12 relates to procedure or practice, still it would be excluded, because under Section 6 of the Act, Section 20(c) of the Code of Civil Procedure would be attracted. It, therefore, follows that we have to decide the following questions :-

1) What is meant by the expression 'procedure or practice'?

2) Does Section 20(c) of the C.P.Code relate to a question of 'procedure or practice', or to substantive law?

3) The nature of Clause 12 of the Letters Patent.

21. Under Section 7, the words used are --'the law for the time being administered by the High Court'. The word, 'substantive law' has not been used. It is, therefore, necessary to clear the air by deciding as to whether the words used refer to substantive law. We have found that the arrangement of Sections 5, 6 and 7 has been made in such a way that Section 5 deals with jurisdiction. Section 6 with procedure and Section 7 with the law to be administered. This arrangement is not a new one. In the Letters Patent, we find that Clause 11 defines the local limits of the ordinary original jurisdiction of the High Court. Clause 12 lays down the original jurisdiction as to suits. Clauses 19 to 21 lay down the law to be administered' by the High Court. Clause 19 lays down the law to be administered by the High Court in the exercise of its ordinary original civil jurisdiction. The meaning of the expression, 'law to be administered', may be discovered from the despatch from the Secretary of State, being a despatch accompanying the first Letters Patent of 1862. In this despatch, Sir Charles Hood, the then Secretary of State for India, explained the provisions of the Letters Patent. In paragraph 24 of the despatch, it has been stated that Clauses 18, 19 and 20 of the Letters Patent contained substantive civil law to be administered by the High Court. We thus find that the expression 'law to be administered' by the High Court under Clause 19 refers to substantive law. A similar arrangement is to be found in other Acts, e.g., in the Presidency Small Cause Courts Act. Section 9 of that Act lays down the procedure and practice of the Small Cause Court. Section 16 lays down that all questions, other than questions relating to procedure or practice, shall be dealt with and determined according to the law for the time being administered by the High Court in the exercise of its ordinary original civil jurisdiction. This again refers to substantive law. The wordings in Sections 5, 6 and 7 of the City Civil Court Act follow the same pattern, and therefore, it is obvious that what is meant by the 'law for the time being administered by the High Court etc.,' is the substantive law. It is therefore clear that Section 7, read with Section 6 of the Act, lays down that with regard to substantive law what will apply is the law which is administered by the High. Court in its ordinary original civil jurisdiction, and as regards procedure or practice, the Civil Procedure Code-will apply. The next enquiry to be made is as to whether Section 20(c) of the C.P.Code relates to procedure or practice or substantive law. Forthat, we must first of all find out what is the meaning of the words 'procedure' and 'practice'. According to Holland's jurisprudence (Chapter XV) 'practice' and 'procedure' may be called adjective law, as opposed to substantive law. According to the learned author, 'adjective law', that is to say the law of practice and procedure, comprises of rules for:-

1) selecting the jurisdiction which has cognizance of the matter in question,

2) ascertaining the Court which is appropriate for the decision of the matter,

3) setting in motion the machinery of the Court so as to procure the decision; and

4) setting in motion the physical force by which the judgment of the Court is, in. the last resort, to be rendered effectual.

22. In Poyser v. Minors, (1881) 7 QBD 329 (333) Lush, L. J., has held that 'procedure' denotes the mode of proceeding by which a legal right is enforced, as distinct from the law which gives or defines the right, and which by means of the proceedings the Court is to administer the machinery, as distinct from its product. The learned Judge points out that the words 'practice' and 'procedure' as applied to this subject were convertible terms. As pointed out in Behram v. Ardeshir, ILR 27 Bom 563 (569), 'procedure', by repetition eventually develops into 'practice', Section 20(c) of the C.P.Code lays down the rules as to where a suit shall be instituted. So far as the Courts are concerned, the Civil Procedure Code does not establish them or define their pecuniary jurisdiction. That has been done by other Statutes like the Bengal Agra and Assam Civil Courts Act, 1887 (Act XII of 1887). Section 20 of the C.P.Code lays down the rules as to where a suit shall be instituted. It relates to a form of action known as 'personal action', 89 distinct from a 'real action' and gives a choice of forum to be selected by the plaintiff. Such rules are rules of procedure and not of substantive law. This has been pointed out by Sulaiman, C. J., in Bunni Pandy v. Brahmadeo Pandy : AIR1931All735 where the learned Chief Justice points out that the rule as to the appropriate forum for a particular kind of suit is one of procedure and not substantive right. In Attorney-General v. Sillem, (1864) 10 L.T.N.S. 434 the Lord Chancellor states that the right to bring an action is very distinct from the regulations that apply to the action when brought, and which, constitute the practice of the Court in which it is instituted. Whether a particular provision of law creates the right or is merely the 'cursus curiae' or regulation of the proceedings, is often a question of verbal nicety depending on the nice shape or meaning of a word. As has been stated above, Holland lays down that the selection of the proper forum to file an action, itself constitutes a matter of procedure or practice. Section 20 gives a choice of alternative forums to the plaintiff in the case of a personal action. Under Section 20(c), a suit may be brought, where the cause of action wholly or in part arises. It will be observed that this provision of law does not create or regulate the cause, of action itself. All it lays down is that, provided the cause of action arises wholly or in part within the local limitsthen, a suit may be instituted. The plaintiff may wholly ignore this provision of law and choose to institute his suit in a Court where the defendant resides or carries on business. In short Section 20(c) does not by itself create the right to sue but tells the litigant where to institute a suit, that is to say, lays down the mode of its exercise. This, in my view, relates to procedure and practice and not to substantive law. Sections 15 to 20 of the C.P.Code have been grouped under the heading 'place of suing'. These rules, which regulate the forum for the institution of suits, have always been considered as laying down rules of proceeding. See Bhamboomal v. Ram Narain, AIR 1928 Lah 297, Thus, the rule laid down in Section 15, that every suit shall be instituted in the Court of the lowest grade competent to try the same, is only a rule of procedure and not of jurisdiction. Therefore, although as a matter of practice a suit below a certain value ought to be instituted in the Court of the munsif, the subordinate Judge still has jurisdiction to try it. Matra Mondal v. Hari Mohun, ILR 17 Cal 155. If, however, the rule is violated, then as a matter of procedure the subordinate Judge should not entertain the suit, but should return the plaint to the plaintiff, to be presented to the Munsif as provided by Order 7, Rule 10, Nidhilal v. Mazhar, ILR 7 All 230 (FB). So far as Section 20 is concerned, it has been held that the rules stated in the various portions are alternative and give a choice of forum to the plaintiff. This is based on the general principle of law that where a suit can be instituted in more Courts than one, the plaintiff has a right to select his own forum. Zamiran v. Fateh Ali, ILR 32 Cal 146 (150). I now come to the word, 'jurisdiction'. In Wharton's Law Lexicon, we find that the word, 'jurisdiction' means, legal authority, extent of power. 'Jurisdiction', said West, J., in Amritrav v. Balakrishna, ILR 11 Bom 488 (490) 'consists in taking cognizance of a case involving some determination of some jural relation, in ascertaining art essential point in it, and pronouncing upon them'. In other words, it means the legal authority to administer justice according to the means which the law has provided and subject to its limitation. Har Prasad v. Jafar Ali ILR 7 All 345 (350). There is however a difference between the existence of jurisdiction and the exercise of jurisdiction. Cawashah Bomanji v. Prafulla Nath, AIR 1941 Nag 364 (367). The jurisdiction of a Court to try a suit is of three kinds, viz., jurisdiction with reference to the nature of the suit, pecuniary jurisdiction and territorial jurisdiction. A fourth kind can be said to be a jurisdiction with reference to a person. Misir Raghubardial v. Sheo Baksh Singh, ILR 9 Cal 439. In a sense, Section 20 of the C.P.Code does relate to jurisdiction. It might be argued that the City Civil Court has a limited territorial jurisdiction, namely the City of Calcutta within which the High Court exercises its ordinary original civil jurisdiction. Where a cause of action arises outside the said jurisdiction, then apart from any provision of law, the Court would have prima facie no jurisdiction to entertain a suit in respect thereof. Section 20 however says that if the defendant voluntarily resides or parries on business or works for personal gain within the jurisdiction then a suit may be filed in that Court. Similarly it saysthat if even a part of the cause of action arises within the territorial limits of a Court, the plaintiff may institute a personal action in that Court. So far as the plantiff in a suit is concerned, the provisions of law which tell him where to file his action, giving him a choice of several forums, cannot, from his point of view, be called a matter of substantive law. The particular rule which tells him where to file his action, that is to say, which grants him a forum, with possibly a power of selection between a number of forums, has always been considered a matter of procedure or practice and from this point of view. Section 20(c) of the C.P.Code is nothing but a provision relating to procedure and practice. Once this is accepted, then by virtue of Section 6 of the Act, it is the Code of Civil Procedure that is attracted and not the Letters Patent, and Clause 12 of the Letters Patent is excluded. It is clear that Clause 12 of the Letters Patent and Section 20(c) of the C.P.Code cannot simultaneously be applied. Coming now to Clause 12 of the Letters Patent, I am aware that it is possible to say that part of the provisions of Clause 12 is jurisdictional. For example, in Beatrice Ezekiel Jacob v. Ezekil Jacob, 48 Cal WN 513 at p. 528, Das, J., stated that this High Court in the exercise of its ordinary original civil jurisdiction has to receive, try and determine suits of every description as provided in Clause 12 of the Letters Patent. But let us consider whether Section 7 of the Act, when it refers to the 'law for the time being administered by the High Court to the exercise of its ordinary original civil jurisdiction' refers to the law which creates jurisdiction. Jurisdiction has two aspects; one, the creation of the jurisdiction and the other, its exercise. What is argued before us is that Section 7, while referring to the 'law for the time being administered by the High Court etc.,' refers to the law which creates jurisdiction. I have already set out above, the connotation of Sections 5, 6 and 7. Section 5 is expressly stated to be dealing with jurisdiction, 6 with procedure and 7 with the substantive law. This arrangement is also to be found in the Government of India Act 1935 and in our present Constitution. Section 223 of the Government of India Act, 1935, speaks about 'jurisdiction of, and the law administered in any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court.' I have already pointed out that so far as the 'law administered in any existing High Court' is concerned, that has inter alia a reference to Clause 19 of the Letters Patent and relates to substantive law. Here, therefore, we find that a clear distinction has been made between the jurisdictional law and the substantive law administered by the High Court, Article 225 of the Constitution is also in a similar form. It speaks about 'jurisdiction of, and the law administered in any existing High Court'. Here also, the jurisdictional law and the substantive law as administered in the High Court are clearly distinguished. In my opinion, the same arrangement has been followed in the City Civil Court Act 1953 and we must come to the conclusion that Section 5 of the Act prescribes the jurisdiction and Section 6 the procedure, so that while talking about the 'law for the time being administered by the High Court in the exercise of its ordinary original civil jurisdiction' in Section 7, it was not intended to refer to any jurisdictional law but to the substantive law other than jurisdictional. Otherwise, the provisions of Section 7 would not have been framed in the manner in which we find it. While it expressly excludes all laws relating to procedure and practice, if it was intended to attract jurisdictional law, then it would have either expressly excluded the provisions already made in Section 5, which are not in accord with Clause 12 of the Letters Patent, or at least contained some reference to it. In my opinion, it did not do so, because it was not intended to deal with jurisdictional law under Section 7. In other words, Section 5 lays down the jurisdiction, Section 6 lays down the procedure and practice and Section 7 deals with the substantive law, but does not deal with the law relating to jurisdiction, procedure and practice. So far as Clause 12 of the Letters Patent is concerned, at the highest, it can be said that it consists partly of procedure and practice and partly of jurisdictional law. Therefore, in accordance with the above interpretation, both will be excluded. I therefore, agree with the answers given to the questions, by my lord Bachawat, J.

P.N. Mookerjee, J.

23. I agree that this Reference should be answered as proposed by my Lords, but I would like to state, in brief, my own reasons for my aforesaid conclusion. The points raised are of considerable importance and they may frequently arise in suits before the City Civil Court. Happily, however, our answers have been unanimous and they are perfectly clear and categorical and no difficulty is likely to be experienced in practice in applying them to concrete cases.

24. Of the two questions, framed by the referring Bench namely,

1. Whether Section 20 and Section 20(c) in particular, of the Code of Civil Procedure, apply to the City Civil Court, or whether, in such matters, the City Civil Court is governed by Clause 12 of the Letters Patent; and

2. If the City Civil Court is at all governed by Clause 12 of the Letters Patent, whether a suit, in which part only of the cause of action arose within the territorial jurisdiction of that Court, instituted without leave of the City Civil Court, becomes incompetently instituted and, therefore, not maintainable;the second, is, obviously, dependent on the first and, indeed, the particular answer, which we propose to give to this latter question, actually renders the other question unnecessary. In the relative analysis, therefore, the first question under reference has assumed paramount importance and I would just briefly indicate my reasons for answering the same, as suggested by my Lords.

25. In plain terms, this question raises a contest between Clause 12 of the Letters Patent and Section 20(c) of the Code of Civil Procedure in the matter of their application to suits before the City Civil Court. That Court is a recent creation of the new Statute, the City Civil Court Act, and its constitution, jurisdiction, functions and procedure as also the laws, that it will administer are all carefully provided and are to be found in the saidAct. That Act, indeed, is its life-blood and the City Civil Court owes its entire strength, status and stature to the said new statute and its activities and sphere of action are all controlled, regulated and circumscribed by the provisions of the said Act, which supplements itself, in certain matters, by reference to other laws or statutes, and, to that extent, makes those laws or statutes, applicable to suits or proceedings before the City Civil Court. In this perspective, I have to examine the material question before me.

26. The preamble of the Act recites the necessity of an additional Civil Court for the City of Calcutta and gives promise of its creation or establishment. Section 3 (1) empowers the State Government to establish the Court. Sub-section (2) of that section defines its status vis-a-vis, or, in relation to, the High Court under the Letters Patent and the Code of Civil Procedure. Section 4, in Sub-section (1), provides for appointment of Judges of the Court and Sub-section (2) of that section defines and limits their power. Sub-section (1) of Section 5 lays down the local limits of the jurisdiction of the Court and confines it (such jurisdiction) to the City of Calcutta as defined in the definition Section 2 (3). Sub-section (2) of Section 5 prescribes broadly the limits of the pecuniary jurisdiction of the City Civil Court and Sub-sections (3) and (4) define its jurisdiction in regard to subject-matter, the former by vesting it with exclusive jurisdiction in regard to some matters and the latter by excluding from its ambit certain types of suits. In short, Section 5 is the jurisdiction section in regard to the City Civil Court and it seeks to define its (the City Civil Court's) jurisdiction under the three broad divisions, namely, territorial, pecuniary and subject-matter. Sub-section 5 of Section 5 is in the nature of a residuary saving provision, preserving or seeking to preserve the jurisdiction of the other Calcutta Courts for the area (the City of Calcutta) over matters, not assigned to the new City Civil Court. Section 6 deals with the procedure to of observed in the City Civil Court and it runs as follows :

'6. Procedure.--Save as otherwise provided in this Act, the Code of Civil Procedure, 1908 shall apply to all suits and proceedings under this Act so far as it is consistent with this Act.'

Then comes the controversial Section, 7, which I set out here without comment:

'7 Law to be administered by the City Civil Court.--All questions, other than questions relating to procedure or practice, which arise in suits or proceedings before the City Civil Court, shall be dealt with and determined according to the law for the time being administered by the High Court in the exercise of its ordinary original civil jurisdiction.'

only drawing attention, in pasting, to its marginal note 'Law to be administered by the City Civil Court'.

27. Four other sections of the Statute need mentioning. They are Sections 9, 14, 20 and 21. Section 9 empowers the High Court to remove from the City Civil Court a suit for trial by itself and, as it has been frequently referred to by Mr. Sen, I quote it in extenso:

(9) 'Power of High Court to remove suit or proceeding to itself.

(1) The High Court, in the exercise of its original civil jurisdiction, may of its own motion or on the application made to it by any party to a suit or proceeding instituted in the City Civil Court, at any stage remove such suit or proceeding for trial by the High Court, if the High Court is satisfied that by reason of the complexity of the case or in the interest of justice or for any other sufficient cause such suit or proceeding should be tried by the High Court.

(2) Where a suit or proceeding is removed for trial to the High Court under Sub-section (i), --

(a) it shall be commenced de novo or from such stage as the High Court thinks fit, as if it were a suit or proceeding, instituted in the High Court;

(b) Court-fee and other fees on the scale for the time being in force in the High Court as a Court of original jurisdiction shall be payable in respect of the suit or proceeding: Provided that the High Court shall in the order removing the suit or proceeding to itself direct that in the levy of any court-fee payable in connection with the suit or proceeding by a party thereto, credit shall be given for any court-fee, already paid by such party in connection with the suit or proceeding and that any excess shall be refunded.

(3) The provisions of this section shall be in addition to and not in derogation of the powers conferred on the High Court under Clause 13 of the Letters Patent.'

Section 14 provides for return of plaint by the High Court and the City Civil Court in suits, triable by the one Court but filed before the other, with provisions for adjustment and refund of court-fees. It is analogous to Order 7 Rule 11 of the Code of Civil Procedure but with those added provisions. Section 20 saves pending proceedings in the High Court, which, but for the said section, might have been triable by the City Civil Court, and Section 21 gives overriding effect to the new Act over other laws, -- in particular, over the Letters Patent, -- the consequence being that all other laws (including the Letters Patent), in the matter of their application to the City Civil Court or to suits and proceedings before it, are expressly subordinated to the provisions of this new statute. In this context, the provisions of this Act acquire a special significance and, upon them and their interpretation, depend the entire structure, functions and sphere of action, -- and, indeed, the very life, -- of the City Civil Court.

28. The Act follows and adopts the familiar pattern of distinction, in the matter of Courts, between 'jurisdiction' 'procedure' and 'law to be administered', -- or, more precisely, between 'jurisdiction' and 'law to be administered', -- and its relative provisions are entirely based upon that traditional distinction.

29. The distinction, indeed, is fundamental and it is of ancient origin. It is to be found in the Letters Patent (with just a slight difference, to be explained hereinbelow) and preserved and maintained in the constitutional enactments, the Government of India Acts, 1915/1919 (Sections 106 and 112) and 1935 (Section 223) and in our present Constitution (Article 225). In view of the aforesaid scheme and structure of the Act, its three sections, which are immediately relevant for our present purpose, namely. Sections 5, 6 and 7, alt quoted or sufficiently set out hereinbefore, have to be interpreted in the light of the above distinction.

30. In the aforesaid context, 'law to be administered' would be the substantive law as in Clause 19 of the Letters Patent and they would not include matters, falling within the jurisdictional Clauses 11 and 12 of the Letters Patent. The exclusion of laws, relating to practice and procedure, -- and of that only, -- in Section 7 of the City Civil Court Act would not, in my opinion, militate against the above view, if only 'practice and procedure' be read comprehensively so as to include also that part of the jurisdictional law which selects or aids the selection of the forum or venue of suits but which is not covered by the express jurisdiction (Section 5). Such a view of the adjective or procedural law would be well supported on authorities (Vide Holland's Jurisprudence, 13th Edition, Ch. XV, pp. 358-60. See also : AIR1931All735 . I do not deem it necessary to refer to the other cases on the point, cited during argument, as this broad position is sufficiently borne out on principle. I would only add that this point of view will be broadly supported by (1881) 7 QBD 329 (Vide in particular, per Lush, L, J., at pp. 333 and 334, stressing the distinction between 'practice and procedure' and substantive law and it will not be contrary to or contradicted by the decision of the English House of Lords in the case of (1864) 10 LTNS 434, which was concerned with a right of appeal, that is, a substantive right, as acknowledged on all hands, and, therefore, with substantive law).

31. In the above view, Clause 12 of the Letters Patent, -- to the requisite extent and in its relevant part, -- would be procedural law or law relating to practice and procedure, -- this view slightly differing from the Letters Patent, -- within the meaning of Section 7 of the City Civil Court Act, which, quite consistently with the aforesaid approach, would cover only 'substantive law' under the expression 'law to be administered', or 'law for the time being administered', and, therefore, on the very terms of the said section, that clause (Clause 12) would not be attracted to the City Civil Court but would be excluded, so far as that Court is concerned.

32. If, then, Section 7 refers to substantive law as discussed above, it will not attract Clause 12 of the Letters Patent and will not affect the Civil Procedure Code, nor will it restrict the application of the Code, sanctioned and enjoined by Section 6. There is no other section of the Act, to which our attention was drawn on the point, and, accordingly, Section 20(c) of the Code, -- and not the corresponding Clause 12 of the Letters Patent, -- would apply to suits before the City Civil Court. The field thus is left. -- and left clear, -- to the Code, that is, for Section 20, or, to be more to the point, Section 20(c), thereof.

33. There is, also as pointed out by my Lord (Bachawat, J.) during argument, considerable difficulty in applying Clause 12 of the LettersPatent to the City Civil Court on its own terms and, as the statute does not contain or indicate any mention, sanction, power or authority to modify or amend it (Clause 12 of the Letters Patent) for application to the City Civil Court and does not speak of such application mutatis mutandis, it is, strictly speaking, hardly possible to apply it to that Court.

34. In the above view, I agree that question No. 1 should be answered, as suggested by my Lords, and the second question need not be answered, as, quite obviously, upon the aforesaid answer, the second question does not require to be answered. I accordingly, concur in the answer or answers and the order proposed by my Lords.


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