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Nahoum E. Nahoum Vs. Dr. (Miss) S. Mitter - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberMatter Nos. 217 and 218 of 1979
Judge
Reported inAIR1979Cal314
ActsCharter Act, 1861 - Sections 2, 9, 11 and 13; ;Government of India Act, 1915 - Sections 101, 106, 107 and 115; ;Government of India (Amendment) Act, 1935 - Sections 219, 220 and 224
AppellantNahoum E. Nahoum
RespondentDr. (Miss) S. Mitter
Appellant AdvocatePratap Chatterjee, Adv.
Respondent AdvocateBireswar Bhattacharyya, Adv.
Cases Referred(Rupendra Deb v. Ashrumati Dobi) Banerjee
Excerpt:
- .....filed before sealdah court and the other before howrah court, to this court under clause 13 of the letters patent. from the facts it would appear that series of proceedings have been taken in respect of a school named jewish girls school having its office at 63, park street, calcutta. one dr. (miss) subha mitter was appointed principal of the said school and thereafter serious allegations were made by the members of board of management of the said school against dr. (miss) subha mitter for mismanagement, defalcation of accounts and appointment of a person to post of vice-principal not properly qualified, with ulterior motive so on and so forth. ultimately dr. (miss) subha mitter was removed from the said post which entailed numerous suits and proceedings in this court and in other.....
Judgment:
ORDER

1. There are two applications before me for transfer of two suits; one filed before Sealdah Court and the other before Howrah Court, to this Court under Clause 13 of the Letters Patent. From the facts it would appear that series of proceedings have been taken in respect of a School named Jewish Girls School having its office at 63, Park Street, Calcutta. One Dr. (Miss) Subha Mitter was appointed principal of the said school and thereafter serious allegations were made by the members of Board of Management of the said School against Dr. (Miss) Subha Mitter for mismanagement, defalcation of accounts and appointment of a person to post of Vice-principal not properly qualified, with ulterior motive so on and so forth. Ultimately Dr. (Miss) Subha Mitter was removed from the said post which entailed numerous suits and proceedings in this court and in other courts. A list of the said proceedings are given in the petition itself. Ultimately the matter went up to the Supreme Court of India. An Administrator was appointed over the said school, pursuant to the order of the Appeal Court of this High Court an election was duly held and duly published on the papers and there have been six elected members to the New Board of Management. In spite of the said election there was dispute and differences and they are not allowed to function normally and properly not only because of the various proceedings taken out by Dr. (Miss) Subha Mitter in her own name but also in the name of others interested which unlawful with the normal running of the school is in the serious jeopardy (sic) and considering the facts and circumstances of the case and balance of convenience it is prayed before me that the present two suits filed in Howrah and Sealdah Courts are nothing but another move by Dr. (Miss) Subha Mitter with one Mr. Ezra Jacob and Elias Sasoon to thwart and hamper the smooth running of the said school.

2. Mr. Pratap Chatterjee appeared on behalf of the petitioner submitted that under these facts and circumstances this suit should be transferred and tried under the extraordinary civil jurisdiction of this Court under Clause 13 of the Letters Patent.

3. Mr. Bireswar Bhattacharyya appeared on behalf of the Respondents and submitted that this application is not maintainable; as such this should be dismissed. His submission before me is that I sitting singly in the Original Side have no jurisdiction to entertain such an application as it should be disposed of by a Division Bench of this Court in the Appellate Side which has only jurisdic-tiun to entertain such application. He referred to Sectionss 2, 9, 11 and 13 of the Charter Act, 1861, Sections 101, 106, 107 and 115 of the Government of India Act, 1915, Sections 219, 220 and 224 of the Government of India Act, 1935 and submitted that the Court which has superintendence over the other Courts can have such jurisdiction to transfer such suit in this High Court and according to Mr. Bireswar Bhattacharyya it is the Appellate Side of the High Court which has the superindence over the other courts so a Division Bench sitting in the Appellate Side have jurisdiction to entertain such application and no other courts. Mr. Bhattacharyya, however, conceded that there is the practice of moving such application in the Original Side of this High Court but such practice is not warranted by law; as such no order should be paased by me on this application. Mr. Bireswar Bhattacharyya also submitted that after laborious research he could not lay his hand on any case on this point decided by this High Court but he can only rely on a case reported in (1915) ILR 39 Bom 604 (FB) where the Full Bench of that High Court held 'the Appellate Side of the Bombay High Court has jurisdiction to transfer a case under Clause 13 of the Letters patent.' It would appear that the submission of Mr. Bireswar Bhattacharyya that there is no reported decision of this High Court in this point is not correct in view of the case reported in (1865) 4 Suth WR Miscellaneous Appeals 7 where a Division Bench of this High Court presided over by J. Loch and F. A. Glover JJ. which held that 'An application to the High Court to remove a case from the District Court and try it in a court of extraordinary original jurisdiction under Section 13 of the Charter Act should be made to a Judge sitting on the Original Side of the High Court and further held that the Judges sitting on the Appellate Side of High Court have no authority to pass orders under Section 13 of the Charter Act and such application should be made to a Judge sitting on the Original Side of the High Court who will determine whether the case should be cailed upon from the District Court or not.'

Moreover in the case reported in (1912) 22 Mad LJ 187 a Division Bench of the Madras High Court held 'The High Court is competent to deal with transfer application of a suit from the file of the Presidency Small Cause Court under its extraordinary original jurisdiction under Clause 13 of the Letters Patent and such application cannot be disposed of by a Division Bench sitting on the Appellate Side'. The learned Judges came to the conclusion that an application for transfer should be made to a Judge sitting on the Original Side. According to Clause 13 of the Letters Patent, the power to transfer is exercised by High Court as a court of extraordinary original jurisdiction. Moreover from the High Court Rules (Ormonds, 41st Edition, page 146) there is an observation by E. C. Qrmond that application under Clause 13 is made to a Judge sitting on the Original Side and reference has been made to Doucett v. Wise (1866) 1 Ind Jur 94; Clarke v. Brojendro Kishore Roy Chowdhury (Fletcher J.), 29th Jan., 1908 (Cal); Satyendra Chandra Ghose Moulik v. Arun Chandra Singha (Chaudhuri J.), 10th July, 1917 (Cal). The Bombay High Court has specifically framed rules for disposal of such application; as such under the said rules, only a Division Bench of the High Court in the Appellate Side has been given jurisdiction to entertain such an application. From our High Court. Rules it would appear that there is no Rule framed whatsoever in our High Court Rules for entertainment of such application save and except only it is provided that a list should be maintained for all extraordinary suits transferred under Clause 13. Clause 13 provides that in extraordinary original civil jurisdiction the High Court of Judicature at Fort William in Bengal shall have power to remove and try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Bengal Division of the presidency of Fort William, subject to its superintendence, when said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court. This clause is exactly the same as the Clause 13 of the Letters Patent of 1862. Whenever any complicated question of law is involved or that the interest of the applicant will be prejudiced unless the case is transferred or where the witnesses and parties reside in Calcutta or that it would be less expensive to try the suit here, those factors are taken into consideration while ordering for transfer of suit. When the question of transfer 'for the purpose of justice' arises it must be determined by reference to the circumstances of each case and the balance of convenience arising out of peculiar facts and circumstances of the case is one of the matters for consideration. Although except the case reported in 4 Weekly Reporter (Southern Land) there is no direct case on the point but it would appear from the cases reported in : AIR1951Cal286 ; : AIR1951Cal239 and : AIR1951Cal129 that Sambhu Nath Banerjee J., P.B. Mukharji, C. J. D.N. Sinha, C. J. sitting singly in the original side have transferred suits from the District Court to this High Court under Clause 13 of the Letters Patent. In those cases although the question did not arise whether the learned Judges sitting in the Original Side had jurisdiction to transfer suits under Clause 13 but in fact such orders were made and from the case reported in : [1953]4SCR1159 (Smt. Asrumati Debi v. Rupendra Deb) it would appear that an appeal was preferred to the Supreme Court of India. It has been held there that such order is made by a single Judge of the Original Side of the High Court under Clause13 of the Letters Patent and in that case the question of appealability of an order passed under Clause 13 of the Letters Patent was considered. In the year 1948 an application was made before Banerjee J. sitting singly in the Original Side for transfer of suit under extraordinary original civil jurisdiction from the court at Jalpaiguri to this High Court. An order was made wherefrom an appeal was preferred before a Division Bench of this High Court presided over by Harries C. J. and Das J. which was dismissed on the ground that such an order is not a judgment within the meaning of Clause 15 of the Letters Patent. Therefrom an appeal was preferred to the Supreme Court of India and the decision of the Division Bench was upheld by the Supreme Court of India. The maintainability of the application before a single Judge sitting in the Original Side under Clause 13 of the Letters Patent was not disputed nor decided. From the cases quoted above it would appear that there is an established practice of this High Court to move an application for transfer under Clause 13 before a single Judge sitting in the Original Side and in the case reported in AIR 1927 Cal 290 it was held by Rankin C.J. and C.C. Ghose J. that 'A Judge of the Original Side is not a court subordinate to the High Court but is a High Court itself and so an application for transfer of a suit before it will not lie before a Bench of the same High Court.' In that case the learned Judge declined to lay down any principle which would interfere with the settled practice of the Court. The decisions reported in AIR 1934 Mad 314 and AIR 1929 Mad 29 also held 'That an application under Clause 13 should be made to the Original Side of the High Court for transfer of suit.' In the case reported in : AIR1950Pat179 a single learned Judge entertained application for transfer of suit under the Letters Patent. In the case reported in AIR 1923 Rang 185 (Jupiter General Insurance Co. v. Abdul Aziz) a Division Bench of the said High Court held 'An application for removal of a suit to the High Court should be entertained by a Judge of the Original Side and in that respect craved reference to the case reported in (1897) ILR 24 Cal 183 (Harendra Lall Roy v. Sarvamangala Dabee decided by Ameer Ali J.) and the case also referred to the case reported in (1865) 4 Suth WR Miscellaneous Appeals 7 (Thomas Robert Doucett v. Josiah patric Wise).

4. The result of the various provisions of law as quoted above would show that the jurisdiction of the High Court is exercisable by the High Court as a body except so far as the exercise of such jurisdiction is lawfully delegated to some or one of the Judges by the learned Chief Justice. Chap. 50 Rule 3 of the Original Side Rules provides that 'when no other provisions are made by the Code or by these Rules the present procedure and practice shall remain in force.' Therefore the existing practice of moving an application under Clause 13 of the Letters Patent in the Original Side of the High Court is to be followed by all and such a practice should not be interfered with. The High Court means Full Court and for the sake of convenience there is determination of the work to be carried out by different learned Judges of this Court. Such jurisdiction is conferred on the Court as a body and it is the Court which will have to exercise such jurisdiction granted in its favour; but inasmuch as it would be convenient for due administration of justice as all the learned Judges cannot sit together; as such necessary powers have been given to the learned Chief Justice to determine for the exercise of Court's jurisdiction by one or more Judges. 'Superintendence' does not imply that the inferior court should be subject to the appellate jurisdiction of this Court only but to court as a whole. In the case reported in (1906) ILR 30 Bom 246 (PC) it was held that 'although court of political resident at Aden was not subject to the appellate jurisdiction of the High Court at Bombay proceeding pending before it was liable to be transferred under Clause 13 of the Letters patent' and the said decision was given by the Privy Council where it has been held that 'Section 15 of the Charter Act does not limit the superintendence of the High Court which may be subject to its appellate jurisdiction.'

5. In support of that view their Lordships were asked to compare and contrast the language of Clause 13 of the Letters Patent with the language of Sections 15, 24 and 25 of the Charter Act and to notice under Section 15 the stress laid on the existence of 'appellate jurisdiction' which they ought, they said, to be imported under Clause 13 of Letters Patent, and at the same time to observe an omission from that clause of the power of transfer conferred by Section 15 of the Charter Act. 'The answer to this ingenious, though somewhat contradictory, argument is simple enough. The power of transfer contained in the Charter Act has nothing to do with the power of removal conferred by the Letters Patent and the Letters Patent make superintendence, not appellate jurisdiction, the condition of exercise of such power of removal which the High Court at Born-bay has put in force.' There in that case an order was passed for transfer of a suit to the Bombay High Court from a suit pending before the Aden Court. There the question 'subject to superintendence' arose.

6. The fact that the superintendence does not mean subject to the appellate jurisdiction of the court will also appear from the case reported in (1903) ILR 27 Bom 585 at p. 587 where it was observed 'Section 15 of the Charter Act does not, in my opinion, limit the superintendence of the High Court to the courts which may be subject to its appellate jurisdiction; it only says that over such courts HighCourt shall have superintendence, not that it shall have superintendence over those courts which are subject to its Appellate jurisdiction and over no others.'

7. Clause 2 of the Letters Patent of 1865 expressly provides 'That Court established under the Letters Patent of 1862 is being continued' and Acts of 1915 and 1935 including the Constitution of India maintain the same powers and jurisdiction of the High Court. Chapter 5 Rule 1 of the Original Side Rules provide that 'Any Judge of the High Court may exercise whole or part of the jurisdiction vested in its original side', as such although it is not specifically mentioned in the list that such power is to be exercised by me sitting as an interlocutory Judge I am of the opinion and hold that I have ample jurisdiction to entertain this application and order for transfer of the suits under Clause 13 of the Letters Patent.

8. From the facts stated above it would appear that more than dozens of suits have been filed in some form or other and applications have been taken out under Article 226 of the Constitution in the High Court as also the suits have been filed in the City Civil Court centering around the management, election and removal of Dr. (Miss) Subha Mitter from the Jewish Girls School and most of the suits have been either dismissed or withdrawn. Ultimately the matter went up to the Supreme Court of India and the Supreme Court has been pleased to direct that the election be held, the result of the election be published and also management be handed over by the Administrator to the newly elected members. Having failed in the endevaour of creating stoppage in the smooth running of the school by the newly elected members the said Ezra Jacob and Sasoon alias Sasoon either in his own name or in the name of Dr. (Miss) Subha Mitter or borrowing the name of others are filing suits one after another which amounts nothing less than harassment to the petitioner before me. Even an originating summons was taken out for construction of the rules and provisions of the said school on which no order was passed by me. It is only when an order was passed for handing over school to the new Board of Management apprehending that the newly elected members of the Board of Management will be carrying out the function of the school, various attempts have been made to thwart the smooth running of the school by the said newly elected Board of Management.

9. In the case reported in : AIR1951Cal129 Sinha, J. held that 'The existence of difficult questions of law or mala fides are only some of the objective tests upon which the Court has only in the past made orders of transfer. These tests are, however, neither fixed nor immutable and must of necessity constantly change with the change of times and the learned Judge laid down some of the objective and subjective tests which the Court will apply in determining whether a given case comes within the ambit of Clause 13. It further held that 'Where questions of sufficient public importance are involved, especially if they relate to the affairs of a public institution, such as, a school, in which a great many persons are interested, the purposes of justice demand that the questions should he decided swiftly and decisively. One way of doing so would be to make available to the litigants who pray for it, the machinery of the High Court which is so constituted as to ensure a speedy trial, and so minimise the number of appeals'. In that case disputes arose involving a fight between the rival committees and the learned Judge felt 'that a large body of students as a result find themselves in an unfortunate predicament and could not carry on their studies and any delay in deciding the matter will not only prejudice the interests of a large number of innocent students but will result in the destruction of the subject-matter of the litigation and under those circumstances the learned Judge considering the balance of convenience transferred a suit from the Alipore Court to this High Court.

10. In the case reported in : AIR1951Cal286 (Rupendra Deb v. Ashrumati Dobi) Banerjee, J. held that 'The Court in the past has removed suits on the ground of (i) balance of convenience and (ii) when the plaintiff commences an action in a Court not on account of any legitimate advantage which a trial in the Court will give him but for purposes entirely foreign to the legitimate purpose, High Court will remove a suit whenever it thinks fit and proper to do so in the interest of justice' and in that case a suit from the Jalpaiguri Court was transferred from the Jalpaiguri Court to this High Court.

11. In both the cases as quoted above D. N. Sinha, J. and Banerjee J. sitting singly transferred the suits from the Alipore and Jalpaiguri Courts to this Court, in both the cases stated above the questions of maintainability of an application under Clause 13 before a single Judge sitting in the Original Side was not mooted and in fact although an appeal was preferred from the judgment of Banerjee, J. the Supreme Court of India in the case reported in : [1953]4SCR1159 had to consider whether an order passed by a Judge on the Original Side of the High Court under Clause 13 of the Letters Patent is a judgment and whether it is appealable or not and their Lordships came to to the conclusion that such order is not a judgment, as such it is not appealable.

12. In view of the facts and the law as indicated above, and considering the balance of convenience and for the ends of justice I make the Rules absolute.


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