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Union of India (Uoi) Vs. Manmul Jain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. Nos. 93 to 95 of 1952
Judge
Reported inAIR1962Cal635,66CWN970
ActsBengal, Agra and Assam Civil Courts Act, 1887 - Section 21(1); ;Chandernagore (Application of Laws) Order, 1950; ;Code of Civil Procedure (CPC) , 1908 - Sections 9, 11 and 96
AppellantUnion of India (Uoi)
RespondentManmul Jain
Appellant AdvocateS.M. Bose, Adv. General and ;Smriti Kr. Roy Choudhury, Adv.
Respondent AdvocateNalini Ch. Banerjee, ;Dhruba Kr. Mukherjee, ;Surathi M. Sannyal, Advs. and ;Nirmal Ch. Chakravartty, G.P.
Cases ReferredSee Sachindra Nath v. Lilabati Dasi
Excerpt:
- .....judge appointed under section 4 of the bengal, agra and assam civil courts act, 1887. the district judge chandernagore also appointed under that act assumed jurisdiction to hear appeals from the decisions of the subordinate judge in those cases. the appellate jurisdiction of the district judge is derived from section 21(1) of the bengal, agra and assam civil courts act, 1887 which is as follows:'save as aforesaid, an appeal from a decree or order of subordinate judge shall lie (a) to the district judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees and (b) to the high court in any other case.'3. the learned advocate general contended that the district judge was not competent to hear.....
Judgment:

Bachawat, J.

1. The City of Chandernagore was until lately a French territory. On November 18, 1949, the municipal assembly of Chandernagore passed a resolution imposing duty on the consumption of petrol at the rate of one anna six pies per gallon. On May 1, 1950 the Central Government of India in exercise of its powers under Section 4 of the Foreign Jurisdiction Act, 1947 promulgated the Chandernagore (Application of Laws) Order, 1950 and appointed an Indian administrator of Chandernagore with effect from May 2, 1950. De facto power with regard to the territory was transferred by the French Republic to the Government of India on May 2, 1950. On December 23, 1950 the municipal assembly of Chandernagore passed a resolution imposing a duty on the consumption of petrol at the rate of four annas per gallon with effect from January 1, 1951. The percepteur and receveur municipal of Chandernagore issued 'commandments' upon the respondents commanding them to pay the moneys said to be due from them on account of the duty on petrol since January 1, 1951 whereupon notices of 'opposition' to the commandments were issued at the instance of the respondents calling upon the percepteur to appear before the Subordinate Judge, Chandernagore. The oppositions challenged the validity and legality of the imposition of duty and of the commandments and prayed for consequential declaration and injunction. The respondents to appeal No. 93 of 1953 also filed a petition under article 808 of the French Civil Procedure Code praying for stay of the 'commandment' proceedings. By several orders passed in August, 1951 the subordinate Judge dismissed this petition as also the oppositions in the other cases on the ground that they were not maintainable. On appeal on November 10, 1951, the District Judge of Chandernagore set aside these orders, sent back the opposition cases to the Subordinate Judge for decision according to law; held that the oppositions were maintainable in the Civil Courts as summary cases. Thereafter by orders dated March 10, 1952 the subordinate Judge dismissed the opposition cases; he held that the impositions of duty as also the commandment proceedings were lawful and valid. On fresh appeal on June 16, 1952 the District Judge set aside these orders. He held that the impositions of duty were not lawful and valid and granted a declaration that the commandments in each case were illegal, ultra vires and incapable of execution. In the meantime on June 9, 1952 the city of Chandernagore was transferred in full sovereignty to India. On June 30, 1952 the President of India in exercise of his powers under Article 243(2) of the Constitution promulgated the Chandernagore Administration Regulation, 1952. On September 9, 1952 the Union of India preferred these appeals from the order of the District Judge dated June 16, 1952 and also filed alternative revision petitions under Section 115 of the Code of Civil Procedure. On the same day the Union of India filed applications for leave to present and prosecute the appeals in place of the percepteur and municipal receveur of Chandernagore; those applications were allowed by an order of this Court dated August 11, 1954. The Calcutta High Court (Extension of Jurisdiction) Act, 1953 was passed on December 18, 1953 extending the jurisdiction of the High Court at Calcutta to Chandernagore as from May 2, 1950. The Chandernagore (Merger) Act passed on September 24, 1954 came into force on October 2, 1954. All these appeals and revision petitions have been referred to this Bench under chapter II Rule 1 proviso (ii) of the Appellate Side Rules.

2. The Bengal, Agra and Assam Civil Courts Act, 1887 subject to a specified modification of section 4 thereof and the Code of Civil Procedure, 1908 were by paragraph 3 of the Chandernagore (Application of Laws) Order, 1950 applied & extended to the free city of Chandernagore and by paragraph 7 of this order all laws then in force in Chandernagore corresponding to those enactments ceased to have effect, save in respect of things done or omitted to be done before May 2, 1950. By a notification dated May 1, 1950 issued under the modified Sec. 4 of the Bengal, Agra and Assam Civil Courts Act 1887 the Central Government appointed the District Judge, Hooghly ex-officio to be the District Judge, Chandernagore and Shri K. M. Roy to be the Munsif with jurisdiction extending to the whole of Chandernagore and by another notification dated October 21, 1950 and published in the Chandernagore Gazette dated November 25, 1950 appointed Shri K. M. Roy as Subordinate Judge, Chandernagore. The opposition cases were heard and decided by Shri K. M. Roy as a Subordinate Judge appointed under section 4 of the Bengal, Agra and Assam Civil Courts Act, 1887. The District Judge Chandernagore also appointed under that Act assumed jurisdiction to hear appeals from the decisions of the Subordinate Judge in those cases. The appellate jurisdiction of the District Judge is derived from Section 21(1) of the Bengal, Agra and Assam Civil Courts Act, 1887 which is as follows:

'Save as aforesaid, an appeal from a decree or order of subordinate Judge shall lie (a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees and (b) to the High Court in any other case.'

3. The learned Advocate General contended that the District Judge was not competent to hear appeals from the orders passed by the Subordinate Judge in the opposition cases. This contention is sound and must be accepted. The Orders passed by Shri K. M. Roy as Subordinate Judge in the opposition cases were not decrees or orders passed in suits or in proceedings arising out of suits. Consequently no appeal from these orders lay to the District Judge. The appellate decision of the District Judge must be set aside on the ground that the District Judge was not competent to hear the appeals.

4. On behalf of the respondent Mr. Banerjee argued that the Subordinate Judge heard and decided the opposition cases in exercise of the powers vested in him by the French Financial Decret December 30, 1912, that under the French Laws appeals from these orders lay to a higher French Court of Appeal and that under those laws read with suitable adaptations by virtue of paragraph 6 of the Chandernagore (Application of Laws) Order 1950, appeals from those orders lay to the District Judge, Chandernagore since May 2, 1950. This contention is baseless. We have not been shown the French Laws under which orders passed in opposition cases were appealable. Assuming that such orders were appealable, we do not know the forum to which the appeals lay. Besides paragraph 6 of the Chandernagore (Application of Laws) Order 1950 does not empower the Court to construe the French Laws with necessary adaptations. The effect of that paragraph is to empower the Court to read the Indian Laws with such modifications not affecting the substance as may be necessary or proper in the circumstances.

5. Mr. Banerjee next contended that the District Judge had entertained the appeals from the final order passed by the Subordinate Judge as also from the previous orders passed by him disposing of the case upon the preliminary point without any objection by the appellants and that therefore the point as to the maintainability of the appeals before the District Judge are barred by waiver and acquiescence and by res judicata. I am unable to accept these contentions. The District Judge lacked inherent jurisdiction to hear the appeals. No appeal could lie to the District Judge from these orders in any circumstances. The inherent incompetency of the District Judge to hear the appeals cannot be cured by consent, waiver or acquiescence of the parties, see Ledgard v. Bull, 13 Ind App 134 (PC); Meenakshi Naidu v. Subramania Sastri, 14 Ind App 160 (PC). The defect of jurisdiction is not cured by Section 11 of the Suits Valuation Act as in Karan Singh v. Chaman Paswan : [1955]1SCR117 . Nor is the point as to defect of jurisdiction of the appellate court concluded by res judicata. The previous orders of remand passed by the District Judge on November 10, 1951 were not appealable and the appellant is therefore not precluded by Section 105(2), C. P. C. from disputing their correctness. The jurisdiction of this Court did not then extend to Chandernagore. And though the jurisdiction of this Court is by the Calcutta High Court (Extension of Jurisdiction) Act, 1953 deemed to extend to Chandernagore as from May 2, 1950 those orders were not thereby made appealable under Order 43 Rule 1(u), C. P. C. for they were passed on appeals from orders in opposition cases and not from decrees in suits.

6. The appellate orders of the District Judge must be set aside on the further ground that the District Judge assumed jurisdiction not vested in him to grant declaratory relief in the opposition cases under the French Financial Decret of December 30, 1912. Extracts from the Decret are quoted in the previous judgment of the District Judge, but the entire Decret was not made available to us. The District Judge held that the Decret gives the aggrieved assessee the right to lodge an opposition in the ordinary civil court questioning the legality and validity of the tax imposed upon him and that the opposition cases were maintainable in the civil court as summary cases. Now as a result of the promulgation of the Chandernagore (Application of Laws) Order 1950, the French courts as also the corresponding French Laws regulating the procedure of the French courts ceased to exist See Sachindra Nath v. Lilabati Dasi : AIR1953Cal580 . The Judges of Chandernagore appointed by the Government of India under the Bengal, Agra and Assam Civil Courts Act, 1887 could exercise the jurisdiction vested in them by the Indian Laws only. They could not assume Jurisdiction to decide cases under French Financial Decret of December 30, 1912. The Indian Laws did nut empower them to entertain summary opposition cases under the French procedural laws and to give declaratory relief in those cases and the orders passed by them in those cases must be pronounced to be null and void. The assessees are at liberty to challenge the legality and the validity of the taxes and of the commandments by regular suits.

7. In my judgment, in the exercise of our jurisdiction under Section 115 of the Code of Civil Procedure, we should set aside not only the orders of the District Judge dated June 16, 1952, but also all other orders passed by the Subordinate Judge and the District Judge in the opposition cases. In these references we cannot adjudicate upon the validity and the legality of the imposition of duty on consumption of petrol and of the commandment proceedings.

8. We pass the following order:

The miscellaneous appeals Be dismissed but the alternative applications under Section 115 of the Code of Civil Procedure be allowed and the orders, passed by the learned District Judge on September 10, 1951, in Misc. Appeals Nos. 4, 5 and 6 of 1951, as also his orders, dated June 16, 1952, in Misc Appeals Nos. 1, 2 and 3 of 1952, and the orders of the learned Subordinate Judge, dated March 10, 1952, in Misc. Cases Nos. 38 of 1951, 39 of 1951 and 41 of 1951, are set aside and the orders of the learned Subordinate Judge, dated respectively August 7, August 8 and August 14, 1951, in the above Misc. Cases (so far as they dismissed the same as not maintainable in law) are affirmed and restored and the said Misc. Cases are dismissed in limine on the ground that they are not maintainable in law. All observations of the courts below on the merits (including those on the rights and liabilities of the parties and the pre-requisites, if any, of suits) are deleted. The respondents will be at liberty to institute regular suits according to law in the appropriate forum, challenging inter alia the legality and validity of the commandments and other processes, issued against them. This Court does not think it fit or necessary to make any pronouncement on those questions. All parties be at liberty to urge hereafter all their respective contentions with regard to those questions and they will not be bound in any way by any expression of opinion thereon in any of the judgments or orders of the courts below. The interim order for security, passed by this Court on September 9, 1952 in S. M. A. No. 93 of 1952, lapses by reason of the present disposal of the said appeal and the respondent therein is permitted to withdraw the cash security, deposited thereunder, that is, the amount of cash money, deposited thereunder as security, which security automatically stands discharged. Each party will pay and bear his or its own costs in this Court and in the courts below.

Sinha, J.

9. I agree with the judgment delivered by my Lord Bachawat J. I would only like to add a few words on an aspect of the case noticed by me during the hearing, but which fortunately turned out to be of no consequence in this particular case as will be apparent from the judgment delivered by my Lord. In this case, had we to go into the merits, it would have been necessary to consider the law applicable in Chandernagore, which was at one time a French colony and has now become a part of India, and has been merged into the State of West Bengal. Briefly speaking, at the present moment the laws applicable to the State of West Bengal arc applicable to Chandemagore. But the French law has remained applicable upto a certain date, and in certain respects. This law depends on innumerable 'decrees' or 'decrets' as they are called, promulgated either in France or in French territories together with 'Deliberations' and 'Arrets', all made under and in accordance with the French law. These decrets, deliberations, arrets, etc., and in general the French law, are not available to the court. Normally speaking, it is, of course, the duty of the litigant to place the law before the Court. In this instant case and in a number of cases dealing with the French law in respect of Chandernagore, lawyers appearing before us have frankly confessed that they are unable to lay their hands on the French law. There are one or two printed books and a 'Dalloz' publication was produced before us and to a certain extent met the demand. But they were wholly inadequate. The relevant decrets ranged from 1911 and even earlier, to 1952. All that learned counsel could do was to produce certain typed copies. Naturally, we enquired as to the authenticity of these copies. Some bore a rubber stamp of the Nazir of some French Court, bearing an illegible signature. Not unnaturally, I asked, as to how reliance could be placed upon such documents. Some of the typed copies, produced were without any signature at all. In one instance we required to look into the French law of some antiquity. With great industry a particular volume was produced, which upon being opened was found to be almost eaten up by white ants. We had thus a glimpse of the law but a very incomplete one. As I said, in this particular case, as it emerged finally, we were spared the task of considering the French law to any great extent. But it is evident that, inasmuch as the French law is applicable in certain cases, serious questions like title to immoveable property must rest on the French law, which is not available to the courts. I do not see how the courts can possibly discharge their duty under the circumstances and protect the rights of the citizen. I think that the defect should be remedied by bringing out an official publication of the relevant French law, including the decrets deliberations, arrets, etc. which are likely to be reasonably required for such purposes. There must be some archive, either at Chandernagore or at Pondichery, where these are to be found. If not, the relevant laws should be collated from the original source in France. It oppresses me to think that we may soon be called upon to decide a question of French law, upon insufficient materials, or upon materials that are not authentic and it be found later on that the materials placed before us were either incorrect or incomplete, and that justice was accordingly not done.

P.N. Mookerjee, J.

10. These three references arise out of three appeals from appellate orders. The references were made for determination of the validity or otherwise of certain taxes or duties at Chandernagore. That determination would nave required interpretation of the laws of that territory during the transitional period, following its de facto transfer to the Union of India, and consideration of the French Law including the French Code of Civil Procedure and several French Decrets, the Foreign Jurisdiction Act, the Chandernagore (Application of Laws) Order 1952 etc. Before the Special Bench, however, the cases took a new turn and, in view of the arguments before us and certain earlier chapters of the present litigations, as revealed by the records, it has now become unnecessary to pronounce upon the validity or otherwise of the taxes or duties in question, as it now appears that the original proceedings before the Civil Court, which have eventually given rise to these references, were themselves incompetent and should have Been thrown out in limine, leaving the aggrieved parties, who are the respondents here, to the regular remedy by way of suits. This conclusion is irresistible as the 'opposition', which was registered by the trial Court, was a peculiar procedure under the French Law and had to be tried as a summary case, obviously under the French Code of Civil Procedure. On and from May 2, 1950, however, in the territory concerned, the French Code of Civil Procedure was replaced by our Code of Civil Procedure with the necessary consequence that the above special procedure under the French Law was replaced by the procedure of suit under the Indian Code. There was thus no further scope for the old 'opposition' and the remedy of a regular suit was the only remedy, available against the 'commandment', in which of course, all objections, questioning the validity of the said commandment including validity of the disputed taxes or duties could be raised. It thus appears that the instant proceedings were misconceived and the learned trial judge was initially right in dismissing them on the ground that they were not maintainable in law and that the aggrieved assessees had only the remedy of regular suits against the impugned commandments and taxes or duties. In this view, it must be held that the present proceedings were, from the very beginning without jurisdiction and the orders of the learned District Judge, in the first instance, holding that the present proceedings were maintainable, were erroneous and it is, upon that error or erroneous decision of the learned District Judge, that his ultimate orders, against which the present appeals are directed, are founded. Before us, again, the competency of the appeals before the learned District Judge could not be supported by reference to any relevant provision of law. In such circumstances, the aforesaid erroneous decision and ultimate orders of the learned District Judge are liable to be revised under Section 115 of the Code of Civil Procedure, although appeals against them may not, strictly speaking, be maintainable in law. I agree, therefore, that the instant appeals should fail but the orders impugned therein, be set aside in the alternative applications under Section 115 of the Code on the ground that the instant proceedings are not maintainable in law and the respondents (opposite parties) should seek redress by appropriate suits in the Civil Court. This will, of course, have the effect of setting aside the several orders, set out by my Lord Bachawat J. in the ordering portion of his judgment. In the circumstances, I concur in the order, proposed by my Lord.

(The order portion is omitted as being merely a repetition of the order given in para 8 of the judgment).


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