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General Council of the Church of India and anr. Vs. Niranjan Ghose and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberMatter No. 634 of 1970
Judge
Reported inAIR1971Cal471,75CWN489
ActsWest Bengal City Civil Court Act, 1953 - Section 21; ;West Bengal City Civil Court (Amendment) Act, 1969; ;Code of Civil Procedure (CPC) , 1908 - Sections 2(5), 3(2), 5, 6, 7, 9 and 24
AppellantGeneral Council of the Church of India and anr.
RespondentNiranjan Ghose and anr.
Appellant AdvocateP.C. Sen, Adv.
Respondent AdvocateBanerjee, Adv.
DispositionPetition allowed
Cases Referred(Niranjan Ghose v. The General Council of Church of India
Excerpt:
- .....this is an application under clause 13 of the letters patent, 1865 for transfer of a suit from the city civil court at calcutta to the high court.2. an important point of law has been argued in this case and it is necessary to decide the said point before the facts are gone into. the point involved relates to the high court's power to exercise its extraordinary original jurisdiction conferred by clause 13 of the letters patent 1865 over the suits filed in the city civil court in view of certain provisions being amendedby the city civil court (amendment) act 1969 being west bengal act xxxv of 1969 which came into force on 14th november 1969. by the said amendment act amongst other amendments section 9 of the city civil court act has been omitted and the pecuniary jurisdiction of the city.....
Judgment:
ORDER

Ramendra Mohan Datta, J.

1. This is an application under Clause 13 of the Letters Patent, 1865 for transfer of a suit from the City Civil Court at Calcutta to the High Court.

2. An important point of law has been argued in this case and it is necessary to decide the said point before the facts are gone into. The point involved relates to the High Court's power to exercise its extraordinary original jurisdiction conferred by Clause 13 of the Letters Patent 1865 over the suits filed in the City Civil Court in view of certain provisions being amendedby the City Civil Court (Amendment) Act 1969 being West Bengal Act XXXV of 1969 which came into force on 14th November 1969. By the said Amendment Act amongst other amendments Section 9 of the City Civil Court Act has been omitted and the pecuniary jurisdiction of the City Civil Court has been raised from Rs. 10,000/- to Rs. 50,000/-.

3. This point could not be raised earlier because under the provision of Section 9 thereof suits and proceedings could be transferred to the High Court and by Subsection (3) of Section 9, Clause 13 of the Letters Patent 1865 was expressly excluded from the purview of the said City Civil Court Act (hereinafter called the said Act). The said Sub-section (3) of Section 9 prior to its omission from the said Act provided as follows:--

'(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.'

4. It is argued that this section along with the above sub-section having been omitted by the said Amendment Act, the High Court cannot now exercise its extraordinary original jurisdiction conferred on it by Clause 13 of the Letters Patent to transfer a suit from City Civil Court to this High Court.

5. Reference has also been made to Section 21 of the City Civil Court Act which provides as follows:--

'21. Act to override other law including Letters Patent. The provisions of this Act shall have effect notwithstanding anything to the contrary in any other law, including in particular the Letters Patent of the High Court.'

The above Section 21 of the said Act has now to be construed without the provision of Section 9 and more particularly of Sub-section (3) thereof. The language of Section 21 clearly contemplates that if any provision of the Letters Patent would be in conflict with any of the provisions of the said Act then the Letters Patent in so far as such provision of the said Act is concerned will not have any effect. It is not that the Letters Patent as a whole has been excluded from the purview of the said Act but what has been sought to be excluded by the said section is in respect of any provision which may be in conflict with any provision of the City Civil Court Act. In short, if the said two statutes will be in conflict with each other then the City Civil Court Act will have the overriding effect over the Letters Patent in so far as such provision is concerned.

6. On the basis of the aforesaid construction of the said section it has to be seen whether Clause 13 of the Letters Patent has any application over suits and proceedings pending before the City Civil Court.

7. The point has to be considered from several aspects. Firstly, when Section 21 was originally framed the legislature intended that the provisions of the City Civil Court Act should not come in conflict with the jurisdiction conferred by Clause 12 of the Letters Patent in respect of the High Court and as such it was necessary to use the expression 'including in particular the Letters Patent of the High Court' in the said section. The legislature at that time was conscious of the position that the High Court had the power under Clause 13 of the Letters Patent and did not intend to affect the said power in any way and as such expressly made the said provision by framing Section 9, Sub-section (3) of the City Civil Court Act which has been set out hereinabove. The expression 'in addition to' in Sub-section (3) of Section 9, clearly indicated and recognised that quite apart from the powers conferred to the High Court under Section 9 of the said statute the High Court had its power under Clause 13 of the Letters Patent and lest any confusion or any controversy might arise in respect of the same, the same was expressly indicated by enacting Sub-section (3) of Section 9.

8. In my opinion, Sub-section (3) of Section 9 when originally framed did not create any new right or confer any new powers either on the High Court or on the City Civil Court but merely indicated as to how the provisions of the Act should be construed. It follows that no new right can be said to have accrued to the City Civil Court by the omission of Section 9 and specially of Sub-section (3) thereof from the said statute. It further follows that prior to the said Section 9 being omitted from the said statute there could not be any scope for any argument that by Section 21 of the said City Civil Court Act the powers of the High Court in so far as the same were conferred by Clause 13 of the Letters Patent had been taken away by the language of the said Section 21.

9. Secondly, Section 21 should be construed in the light of the various other sections of the City Civil Court Act viz., Section 2 Clause (5), Section 3, Sub-section (2), Section 4, Section 5 and particularly Sub-section (5) thereof and Section 7 thereof. The said provisions are set out as follows:-

'Section 2. Definitions.-- In this Act, unless there is anything repugnant in the subject or context,--

(5) 'proceeding' includes any proceeding arising out of a suit of a civil nature (not being a proceeding on appeal, reference, revision or any application to the High Court) and any other proceeding whatsoever of a civil nature in the exercise of original jurisdiction not arising out of a suit;

Section 3. Establishment of City Civil Court-

(2) The City Civil Court shall be deemed to be a Court subordinate to and subject to the superintendence of the High Court within the meaning of the Letters Patent for the High Court and of the Code Of Civil Procedure, 1908 (V of 1908). Section 4. Appointment of Judges.--(1) There shall be appointed a Chief Judge of the City Civil Court and as many other Judges of that Court as the State Government thinks fit,

(2) Each of the Judges of the City Civil Court may exercise all or any of the powers conferred on that Court by this Act or by any other law for the time being in force.

Section 5. Jurisdiction.-- (1) 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 and the High Court shall not have Jurisdiction to try any proceeding under-

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

(ii) Part X of the Indian Succession Act, 1925 (XXXIX 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.

Section 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.'

10. By Sub-section (2) of Section 3 the High Court's power of superintendence as conferred by the Letters Patent over the City Civil Court has been expressly retained. If this provision is read along with Section 21 then the limited meaning given to Section 21 as regards Letters Patent can be well understood. In other words, the purpose why Section 21 had to be enacted is revealed; the purpose being that the powers conferred on the High Court under Clauses 12 and 17 of the Letters Patent would otherwise be in conflict with Section 5 of the City Civil Court Act. The whole purpose of Section 21 is to modify the aforesaid Clauses 12 and 17 of the Letters Patent so that suits and proceedings of the nature and value as mentioned in Section 5 of the City Civil Court Act may not come in conflict with the said provisions of the Letters Patent.

11. Section 5 of the City Civil Court Act defines the territorial and the pecuniary jurisdiction of the City Civil Court. Sub-section (5) clearly indicates that the High Court's jurisdiction was not sought to be defined by the said City Civil Court Act and accordingly, except what have been provided in Sub-sections (1), (2) and (3) of Section 5 the High Court retained its jurisdiction over all other suits upon which the High Court had its jurisdiction to try including those mentioned in Sub-section (4) thereof. All that was expressly stated in Sub-sections (2) and (3) of Section 5 was that the High Court shall not have jurisdiction to try such suits and proceedings specified therein which the High Court had been trying so long prior to the coming into force of the City Civil Court Act and the Amendments made thereunder from time to time.

12. Then again, the language of Section 7 provides that the substantive law to be administered by the City Civil Court would be the law for the time being to be administered by the High Court in the exercise of its ordinary original civil jurisdiction. It is indicative of the fact that the City Civil Court has been vested with the restricted jurisdiction as defined by the said statute itself. Apart from that the jurisdiction of this High Court remains untouched.

13. The City Civil Court Act, in my opinion, has not in any way touched the extraordinary jurisdiction of the High' Court as conferred by Clause 13 of the Letters Patent. Jurisdiction of a Court cannot be taken away by a statute by implication. There must be clear, unambiguous and express words to that effect. If such words have not been used by the legislature, in its wisdom, then the Court in interpreting the statute cannot usurp the function of the Legislature to supply words therein and thereby to oust the jurisdiction of a Court.

14. Thirdly, the question of transfer of the suit from the City Civil Court to the High Court as provided under Section 24 of the Code of Civil Procedure 1908 has been expressly retained by enacting Section 6 of the City Civil Court Act which provides as follows:--

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

This section read with Sub-section (2) of Section 3 as set out above, vests this High Court with jurisdiction to transfer to itself and to try the same if the circumstances would so permit under Section 24 of the Code of Civil Procedure. In my opinion. Section 24 applies to the Original Side of this Court and the power conferred under Section 24 has not been taken away by the City Civil Court Act. On the contrary, that power has been expressly retained by the said Section 6 read with Sub-section (2) of Section 3 of the City Civil Court Act.

15. In this connection reference may be made to the judgment of B.C. Mitra J. in Re : Emerald Printing Works Ltd. reported in (1963) 67 Cal WN 1059 where also the application was made both under Clause 13 of the Letters Patent as also under Section 24 of the Code of Civil Procedure for transfer of a suit from the Alipore Court to this Court. The same would appear from the opening sentence of the judgment. Although in that case the order was made under Clause 13 of the Letters Patent but nothing was argued or decided specifically about the effect of Section 24 of the Code of Civil Procedure. In my opinion, an application for transfer under Section 24 of the Code of Civil Procedure is also maintainable if it is so made along with Clause 13 of the Letters Patent in the Original Side of this Court.

16. Before I leave this topic it is necessary to consider the case of P.K. Ghosh v. Mrs. K. Dutt, reported in : AIR1953Cal589 where the effect on the provision of Clause 13 of the Letters Patent was considered in view of Section 16 of the West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950). In Section 16 of the said Act 17 of 1950 the language used was, inter alia, to the following effect:--

'Notwithstanding anything contained in any other law'.......... and 'no other court shall be competent to entertain or try such suit.'

It was hold by this Court that such a clause deprived the Calcutta High Court of the jurisdiction. It was observed that the section did not say whether it was the original jurisdiction or the extraordinary original jurisdiction which was intended to be affected and that the section was unqualified on that point. It was held that the intention of the legislature was clear that the High Court should not entertain or try such suits and accordingly there would be, no point in transferring such a suit under Clause 13 of the Letters Patent when the Act had deprived the High Court of any power to try such a suit. In my opinion, that case is distinguishable from the facts of the case before me in view of the specific reservations to that effect being provided in the City Civil Court Act as indicated above. Sub-section (2) of Section 3 has expressly reserved the powers of the High Court to exercise its power of superintendence within the meaning of the Letters Patent. Furthermore, there is another saving by the same sub-section in so far as Section 24 of the Code of Civil Procedure is concerned which was not argued or considered in the said case reported in : AIR1953Cal589 .

17. Another line of argument was advanced before me on behalf of the petitioner for transfer by drawing the Court's particular attention to the word 'proceeding' as defined in Section 5 of Sub-section (2) of the said City Civil Court Act. From the said definition it will be seen that the utmost that the word 'proceeding' can include is a proceeding independent of the suit but in the exercise of original jurisdiction. It will under no circumstances include an application in the exercise of extraordinary original jurisdiction of this Court and if that be the meaning of the word 'proceeding' then such an application for transfer in the exercise of the extraordinary original jurisdiction of this Court cannot be attracted by Section 5 of the said Act, more so when Section 5 specifically enumerates two such independent proceedings in Sub-section (3) thereof. In other words, had the intention of the legislature been that this extraordinary original jurisdiction of this Court should be taken away then the same would surely have been mentioned in the said Sub-section (3) along with the other independent proceedings referred to therein. Accordingly, wherever the word 'proceeding' has been mentioned in the said Act that would not include an application under Clause 13 of the Letters Patent. It was also argued that in taking away the jurisdiction of the High Court in respect of the said two proceedings as enumerated in Sub-section (3) of Section 5 the second schedule to the Act made suitable amendments in both the Guardians and Wards Act, 1890 and the Indian Succession Act, 1925 whereas that was not done in this respect.

18. It was observed by the Special Bench of this Court in the case of R. Ray v. V. G. Dalvi, reported in : AIR1963Cal380 at p. 382 that 'but for those amendments the City Civil Court could not assume jurisdiction to try the proceedings under those special Acts . On that basis it was observed by the Special Bench that the City Civil Court Act did 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.

19. That being the position, in my opinion, this application is clearly maintainable both under Clause 13 of the Letters Patent as also under Section 24 of the Code of Civil Procedure and the Suit can be transferred to try and determine the same by exercising the jurisdiction conferred by Clause 13 of the Letters Patent 1865 and/ or under Section 24 of the Code. An application under Clause 13 alone will also be maintainable for transfer of suits from the said City Civil Court.

20. That disposes of the important point of law. I now proceed to deal with the merit of this application to consider whether the facts are such that the suit should be transferred by exercising the extraordinary original jurisdiction of this Court under Clause 13 of the Letters Patent and also by exercising the powers conferred by Section 24 of the Code of Civil Procedure.

21. On behalf of the petitioner Mr. P. C. Sen contends that this very plaintiff has already filed a suit in this Court being suit No. 2245 of 1960 (Niranjan Ghosh v. Bev. H. L. J. De Mel). That suit is for a declaration that the defendant is holding the office of Metropolitan Bishop of Calcutta illegally and in violation of the constitution, canons and rules of the Church of India; for permanent injunction restraining the defendant from usurping the office of Metropolitan Bishop of Calcutta and remaining in the said office and holding and using the said office and drawing and receiving the emoluments for the said office; interim injunction; costs and further and Other relief and reliefs. The suit which has been filed before the City Civil Court by this plaintiff in January 1970 contains the following prayers:--

1. for a declaration that the alleged ordinary Session of the General Council of the Church of India held on 2nd to 4th January, 1970, is not a legal and valid session and held with illegal members and convened in breach of the provisions of the Constitution, Canons and Rules etc. of the Church of India and that the decisions and resolutions passed in the said session shall have no effect and shall not be binding upon the General Council of the Church of India and they are liable to be set aside;

2. for setting aside the minutes of the session incorporating the decisions resolutions etc. passed in the session, as illegal and invalid;

3. for a permanent injunction restraining the defendants and/or their agents from giving effect to the decisions etc. made and resolutions passed in the said session;

4. for costs of the suit;

5. for any other relief or reliefs as the Court may deem fit and proper.

22. Mr. Banerjee appearing on behalf of the plaintiff Niranjan Ghose realises the weakness of his client s case in this application and volunteers and wants to have it recorded that his client is prepared to withdraw the suit from this Court. On the second day of the argument Mr. Baner-fee's client appears in Court and Mr. Banerjee contends that his client is prepared to give an undertaking not to proceed with the guit pending in this Court.

23. Mr. P. C. Sen contends that the nature of the two suits is very similar to each other and that fact can hardly be disputed by the respondent. He contends that in view of the pendency of the suit in the High Court, the suit pending before the City Civil Court should be transferred to this High Court for being disposed of together or one after another. The petitioners allege that the said Niranjan Ghose and his supporter and henchman one C. A. Biswas are in the habit of instituting suits and proceedings against Church of India, Calcutta Diocesan Council and the various other bodies under the Church of India only to harass the said institutions and not for adjudication of any bona fide rights of the parties on merits. In paragraph 4 of the petition the entire list of suits and proceedings have been set out. From the list it will appear that various suits and proceedings have been filed from time to time in the City Civil Court and by various orders made from time to time therein this High Court has exercised its powers under the extraordinary original jurisdiction and also under Section 9 of the City Civil Court Act and has transferred such suits pending before the City Civil Court to this Court. It will also appear from the said list that the said C. A. Biswas after the transfer of the suits to this Court either caused their dis missal for default of appearance or did not proceed with the hearing of the said suits after the same were part-heard by this Court or withdrew such suits. This reveals mala fides of the plaintiffs and harassment of the defendants in respect of the several suits and proceedings filed and initiated against the defendants,

24. It is argued by Mr. Banerjee that the said C. A. Biswas has no connection whatsoever with his client Niranjan Ghosh and the suits filed by the said C. A. Biswas have no connection whatsoever with the suits filed by Niranjan Ghosh. In my opinion, in respect of both sets of suits and proceedings of both those plaintiffs viz., C. A. Biswas and Niranjan Ghose, the Constitution, Canons and Rules of the Church of India would have to be gone into and would require interpretation. The holding of the meeting of the General Council of the Church of India is the subject-matter of dispute in the present suit and in deciding that question the Constitution, Canons and Rules of the Church of India would require construction and interpretation. In deciding that suit the question of nominated members viz., Rev. S. K. Biswas and Mr, J. M. Das from Calcutta Diocese and the validity thereof in accordance with the Constitution, Canons and Rules of the Church of India have necessarily to be considered. Important questions like the effect of the resignation of the Metropolitan with effect from 24th March 1967 on the authority of the nominated members has to be gone into with reference to the said special Canon laws.

25. The petitioner herein has alleged collusion and conspiracy by and between the said Niranjan Ghose and the said C. A. Biswas to harass the said General Council of India. These proceedings, it appears, will obviously have great bearing and impact on the Christian Community at large and the Christian Community at large will be interested in them.

26. In my opinion, although the plaint appears to be a simple one yet at the trial the provisions of the English Canon Law has got to be considered in deciding the various points involved in this suit. The provisions of the Constitution, Canons and Rules of the Church of India which are based upon English Canon Law would require construction and would have to be considered at the trial. This matter would no doubt be of great public importance and specially to the Christian Community in India as a whole.

27. The pending suit No. 2245 of 1969 (Niranjan Ghose v. Rev H. L. J. De Mel) in this Court involves identical issues as that of the suit which has been filed before the City Civil Court. The nature of the evidence likewise is likely to be identical in both the suits. The question of nomination and election of the representatives to the General Council of the Church of India and evidence in connection thereto would be identical in extraordinary suit No. 13 of 1969 filed by the said C. A. Biswas and in the Title Suit No. 114 of 1970 herein would almost be identical in nature. In conclusion it is to be stated that there could be no reason why the pending suit before the City Civil Court should not be transferred over to this High Court when so many other suits which are identical in nature and, as stated above, have been transferred to this Court from time to time, by various orders made in the said respective suits which have been referred to in Paragraph 4 of the petition. On the contrary there is every possibility of there being conflicting decisions and multiplicity of proceedings in the said two Courts and by this transfer such a possibility can be avoided. Moreover, since all the said suits may be disposed of one after another it would save both the time and costs if this suit is transferred to this Court and heard along with the other transferred and pending suits before this Court as stated above. In my opinion, the balance of convenience is overwhelmingly in favour of this suit being transferred and tried in this Court along with the other suits pending in this Court or transferred to this Court as mentioned hereinabove.

28. Mr. Banerjee has argued before me that the petitioners herein entered appearance in the suit filed before the City Civil Court and also filed their written statements sometime in the middle of the year 1970. Accordingly, they are guilty of gross delay in making this application and at this stage this Court should not make an order for transfer of the suit to this Court. Mr. Sen has explained the position. The suit as originally filed did not disclose any cause of action and as such the point was taken In the written statement with the idea that the matter would be finished on the preliminary point alone. After the said written statement was filed and the point was known to the plaintiff, an application was made by the plaintiff for amendment of the plaint and for converting the suit to that of a representative character and thereby the defect was cured by obtaining the order for amendment. After the amendment was effected the petitioner made this application for transfer inasmuch as these points have now to be gone into at the trial of this suit, Accordingly, I am satisfied that the petitioners are not guilty of any delay or laches on their part.

29. Considering all these points I hold that this is a fit case where the Extraordinary powers of this Court should be exercised under Clause 13 of the Letters Patent and an order should be made for transfer of the suit from City Civil Court to this Court, I am satisfied that along with the said order an order under Section 24 of the Code of Civil Procedure, the scope whereof is wider than that of the scope of Clause 13, should also be made and I make an order accordingly.

30. The result, therefore, is that the Title Suit being suit No. 114 of 1970 (Niranjan Ghose v. The General Council of Church of India) pending before the City Civil Court at Calcutta be and the same is hereby transferred from the said Court to this Court for being tried and disposed of in the Extraordinary Original Jurisdiction of this Court. The petitioners are entitled to the costs of this application.


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