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Sk. Abu Bakkar and ors. Vs. Sm. Parimal Prova Sarkar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 3897 of 1958
Judge
Reported inAIR1962Cal519,66CWN43
ActsCode of Civil Procedure (CPC) , 1908 - Sections 24 and 150 - Order 39, Rule 2(3)
AppellantSk. Abu Bakkar and ors.
RespondentSm. Parimal Prova Sarkar and anr.
Appellant AdvocateMrinal Kanti Ghosh Choudhury, Adv.
Respondent AdvocateAnil Kumar Sen, Adv. for Party No. 1, ;N.C. Chakravarty and Sudhir Ranjan Khastagir, Advs. for Party No. 2
Cases ReferredIn Dagunath Saha Roy v. Biswambar Saha Roy
Excerpt:
- .....prova aich sarkar, plaintiff in title suit no. 89 of 1956 in the third court of the subordinate judge, alipore, made a prayer for transfer of title suit no. 905 of 1,955 of the first munsif's court, alipore to the third court of the subordinate judge, alipore for analogous trial as the subject-matter of the two suits was to a certain extent identical. the district judge by an order dated 9th november, 1957, allowed the prayer for transfer, and transferred title suit no. 905 of 1955 of the first court of munsif, alipore to the third court of the subordinate judge, alipore for analogous trial along with title suit no. 89 of 1956 of that court. on 29th october, 1957, the petitioners tiled an application before the first court of munsif, alipore under order 39, rule 2(3) of the code of.....
Judgment:
ORDER

S.K. Sen, J.

1. The revisional application is directed against the orders of the courts below dismissing an application under Order 39, Rule 2(3) of the Code of Civil Procedure on the ground of want of jurisdiction. The petitioners filed a title suit, being Title Suit No. 905 of 1955 of the First Court of the Munsif, Alipore, for declaration of their title to certain land and for recovery of possession therein against opposite party No. 1 Sm. Parimal Prova Aich Sarkar and one Bejoy Krishna Aich Sarkar. In the course of the suit an injunction was obtained by the petitioners restraining the defendants from making any pucca or permanent construction on the encroached lands, that is the suit lands alleged to be encroached, and also upon the admitted lands of the tenancy as shown in the plain annexed to the plaint. Sm. Parimal Prova Aich Sarkar, plaintiff in Title suit No. 89 of 1956 in the Third Court of the Subordinate Judge, Alipore, made a prayer for transfer of Title Suit No. 905 of 1,955 of the First Munsif's Court, Alipore to the Third Court of the Subordinate Judge, Alipore for analogous trial as the subject-matter of the two suits was to a certain extent identical. The District Judge by an order dated 9th November, 1957, allowed the prayer for transfer, and transferred Title Suit No. 905 of 1955 of the First Court of Munsif, Alipore to the Third Court of the Subordinate Judge, Alipore for analogous trial along with Title Suit No. 89 of 1956 of that Court. On 29th October, 1957, the petitioners tiled an application before the First Court of Munsif, Alipore under Order 39, Rule 2(3) of the Code of Civil Procedure, alleging that taking advantage of an order passed on 21st September, 1957 by the learned District Judge staying further proceedings in Title Suit No. 905 of 1955, the defendants were making permanent constructions on the northwestern portion of c. s. plot 127 which was a part of the encroached land and subjectmatter of the suit. When Title Suit No. 905 of 1955 of the First Munsif's Court, Alipore was transferred to the Third Court of the Subordinate Judge, Alipore, this application under Order 39, Rule 2(3) C.P.C. was also taken up by the Subordinate Judge and he dismissed the application by an order dated 12th April, 1958, on the ground that as the injunction order had been passed by the First Court of Munsif, Alipore, the Subordinate Judge was not competent to deal with the application for punishment for any alleged breach of the injunction; because the sub-rule provides that in case of disobedience or of breach of any such terms, the Court granting the injunction may pass the appropriate penal order. An appeal from that order was heard by an Additional District Judge, Alipore; but the learned Additional District Judge agreed with the learned Subordinate Judge in holding that the Subordinate Judge had no jurisdiction to deal with the application under Order 39 Rule 2(3) C.P.C., the injunction having been passed by the First Court of Munsif.

2. Mr. Ghosh Choudhury appearing for the petitioners has urged that the courts below erred in holding that the Subordinate Judge had no jurisdiction. Mr. Ghosh Choudhury has urged that the Title Suit having been transferred to the Third Court of Subordinate Judge, Alipore, every matter relating to the suit could be dealt with by the transferee Court in view of the provisions of Section 150 C.P.C. In support of his contention he has relied on a decision of the Madras High Court, viz. Mouna Guruswami Naicker v. Sheik Muhammadhu Rowther, ILR 46 Mad 83: (AIR 1923 Mad 92).

3. Before dealing with the point, I should point out that the application under Order 39, Rule 2(3) C.P.C. for taking penal steps against the defendants was filed not against the two principal defendants who were parties to the suit, but against defendant No. 1 Sm. Parimal Prova Aich Sarkar and one Benoy Krishna Aich Sarkar, who is a brother of defendant No. 2 Bejoy Krishna Aich Sarkar. Since opposite party No. 2 Benoy Krishna Aich Sarkar was not a party in Title Suit No. 905 of 1955, it is clear that no action under Order 39, Rule 2{3) C.P.C. could be taken against him. Therefore, as against opposite party No. 2 the proceeding was in any case bound to be infructuous.

4. Further, I may observe that the learned Subordinate Judge, who dealt with the application under Order 39, Rule 2(3) C.P.C. when the main suit was transferred to him, appointed a Commissioner for holding local inspection on the application of the plaintiffs-petitioners, and the report of the pleader commissioner does not show that there was any encroachment, because the only thing that the pleader-commissioner found is that three spaces for windows in the boundary wall of an existing structure had been recently plastered over, as some bricks had fallen out of the same; and that apart from that recent plastering there had been no new construction. It is clear that recent plastering at a place where bricks had fallen from an old existing structure does not amount to new construction and, therefore, on merits the petitioners' application could not succeed.

5. That being so, it is hardly necessary to go intothe question of law. But as the point has been raised, I shall deal with it briefly. In the Madras case referred to above, a newly created court had been given territorial jurisdiction to try all cases arising out of a part of the area over which another court had jurisdiction previously. It was held that in view of the terms of Section 150 C.P.C. the newly created court had jurisdiction to punish breach of temporary injunction granted by the court which had jurisdiction formerly. It appears, however, that this view of the Madras High Court has not been followed by the Calcutta High Court. Moreover, we are not concerned here with a change of territorial jurisdiction. In Dagunath Saha Roy v. Biswambar Saha Roy, 61 Cal LJ 543, it was held by a Bench of this Court that Section 150 C.P.C. referred to the change of territorial limits of a court's jurisdiction and not to a mere distribution of work among courts exercising the same jurisdiction and that accordingly where a temporary injunction was pass-ed by the Central Munsif, Dacca but the suit was transferred for trial to the Third Munsif, Dacca, the Third Munsif had no jurisdiction to deal with the application for punishing a violation of the temporary injunction even though the suit had been transferred to him, Mr. Ghosh Choudhury has sought to distinguish this ruling by urging that in the present case the application for taking penal steps against the defendants under Order 39, Rule 2(3) C.P.C. had been filed on 29th October, 1957, before the first Munsif, the Court which passed this injunction, before the order for transferof the suit had actually been passed, and that this application under Order 39, Rule 2(3) C.P.C. was transferred along with the suit itself to the Third Subordinate Judge, and as the application itself was transferred, Section 150 C.P.C. would apply and, therefore, the transferee court would have jurisdiction. As to this argument I may point out that there was really no order passed by the learned District Judge transferring the proceeding under Order 39, Rule 2(3) C.P. Code to the Third Court of the Subordinate Judge. The order of transfer under Section 24 C.P.C. related only to the main suit, viz. Title Suit No. 905 of 1955, as shown by the Order dated 9th November, 1957. Moreover, the principle on which the decision in 61 Cal LJ 543 proceeded was that Section 150 C.P.C. refers to a change of territorial limits of the court's jurisdiction and not to a mere distribution of work among the courts. Accordingly, when there is a mere distribution of work among courts by transfer of a suit or proceeding from one court to another, Section 150 C.P.C. cannot apply. I must, therefore, agree with the view taken by the courts below that the Third Court of Subordinate Judge did not have jurisdiction to deal with the proceeding under Order 39, Rule 2(3) C.P.C. The proceeding should have been continued in the First Court of Munsif where it was filed.

6. Mr. Ghosh Choudhury has finally urged that the learned Subordinate Judge, having found that he had no jurisdiction, should have returned the application under Order 39, Rule 2(3) C.P.C. to the First Court of Munsif, Alipore for continuing the proceeding. Mr. Ghosh Choudhury has urged that an order should now be passed for the Munsif, First Court taking up the proceeding. But as on the merits I find that the petitioners have no case, it is not necessary for me to pass any order at this stage that the proceeding should be decided on merits after being sent back to the First Court of Munsif.

7. This Rule is, therefore, discharged with costs.


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