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Lal Behary Basak Vs. Akhil Chandra Santra - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal469,72Ind.Cas.794
AppellantLal Behary Basak
RespondentAkhil Chandra Santra
Cases ReferredGaudna Bibi v. Jabanulla Mandul
Excerpt:
bengal, agra and assam civil courts act (xii of 1887), section 8(2) - bengal tenancy act (viii of 1885), section 153, proviso, application under--transfer to additional judge, whether competent. - .....of the rule reliance was placed on the case of gaudna bibi v. jabanulla mandul 5 c.w.n. 48 notes, (civil rule no. 1969 of 1900) reported as 5 c.w.n. short notes 48. we have referred to the record of the case in this court and we find that there the additional judge of jessore had before him an appeal described in the title as a miscellaneous appeal. the learned additional judge dealt with the matter not as an appeal but as an application under section 153 of the bengal tenancy act, and it was held by this court that he had no jurisdiction in those circumstances to deal with the case as an application, under section 153 of the bengal tenancy act. in the present case the application of the opposite party tenant was properly made to the district judge of hooghly, who appears to have.....
Judgment:

1. This Rule relates to an order dated the 3rd January 1922 made by the Additional District Judge of Howrah whereby he dismissed the application of the petitioner presented to the District Judge of Hooghly under the proviso to Section 153 of the Bengal Tenancy Act and transferred by the District Judge to him for hearing.

2. The Rule obtained by the petitioner calls upon the opposite party to show cause why the Additional District Judge's order should not be set aside for the reasons set forth in ground (a) of the petition Ground (a) of the petition is to the effect 'that the learned District Judge exercised his jurisdiction illegally and with material irregularity in transferring the case to the Additional District' Judge and the latter exercised jurisdiction not vested in him in proceeding with the trial and dismissing the motion.'

3. In support of the Rule reliance was placed on the case of Gaudna Bibi v. Jabanulla Mandul 5 C.W.N. 48 notes, (Civil Rule No. 1969 of 1900) reported as 5 C.W.N. Short Notes 48. We have referred to the record of the case in this Court and we find that there the Additional Judge of Jessore had before him an appeal described in the title as a miscellaneous appeal. The learned Additional Judge dealt with the matter not as an appeal but as an application under Section 153 of the Bengal Tenancy Act, and it was held by this Court that he had no jurisdiction in those circumstances to deal with the case as an application, under Section 153 of the Bengal Tenancy Act. In the present case the application of the opposite party tenant was properly made to the District Judge of Hooghly, who appears to have transferred it for disposal to the Additional District Judge of Howrah.

4. In so doing the District Judge no doubt acted under the general powers conferred on him by Section 8 of the Civil Courts Act, XII of 1887.

5. Sub-section (2) of that section provides 'Additional Judges...shall discharge any of the functions of a District fudge which the District Judge may assign to them, and, in the discharge of those functions, they shall exercise the same powers as the District Judge.'

6. We are of opinion that the case cited is distinguishable from the present case on the facts and that the provision in the Civil Courts Act to which we have referred is wide enough to enable an Additional Judge to near an application under the provided Section 153 of the Tenancy Act transferred to him for disposal by the District Judge No doubt the jurisdiction conferred by the proviso is conferred on the District Judge but in our view the hearing of an application under the proviso is a function of a District Judge which, under the Civil Courts Act, he may assign to an Additional Judge.

7. If that be so, the order of the learned Additional Judge to which the Rule relates was not made without jurisdiction and this Rule must be discharged with costs (hearing fee one gold mohur).


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