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Dagu Nath Saha Roy Vs. Biswambhar Saha Roy - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in163Ind.Cas.622
AppellantDagu Nath Saha Roy
RespondentBiswambhar Saha Roy
Cases ReferredRamier v. Muthukrishna Ayyar
Excerpt:
civil procedure code (act v of 1908), section 150 - refers to change of territorial limits of court's jurisdiction and not to mere distribution of work among courts exercising same jurisdiction. - .....the practice in the court is for suits which become contested to be allocated by the court of the central munsif to the courts of the other munsiffs under the orders of the district judge.5. in pursuance of that practice this suit was allocated to the court of the 3rd munsif. later the court of the 3rd munsif, on application made to it, found that there had been a breach of the injunction and ordered the defendant to be imprisoned and his property to be attached.6. on appeal the subordinate judge upheld the finding of a breach of the injunction but held that the application under order xxxix, rule 2, should have been made to the central munsifs court which was 'the court granting the injunction' and which alone had jurisdiction to deal with the breach.7. the plaintiff in the munsifs.....
Judgment:
ORDER

McNair, J.

1. This Rule was heard ex 'parte by Mr. Justice R.C. Mitter on January 18, 1935, and was made absolute. The same learned Judge on February 25, 1935, decided that the non-appearance of the opposite party at the time of hearing bad been satisfactorily explained arid he vacated his previous order. It has now been fully argued by Advocates for both parties.

2. The facts are simple.

3. The plaintiff petitioner filed a suit to establish his right to an easement of light and air in the Central Munsifs Court at Dacca and obtained an interim injunction restraining the defendant from raising a wall during the pendency of the suit.

4. The practice in the Court is for suits which become contested to be allocated by the Court of the Central Munsif to the Courts of the other Munsiffs under the orders of the District Judge.

5. In pursuance of that practice this suit was allocated to the Court of the 3rd Munsif. Later the Court of the 3rd Munsif, on application made to it, found that there had been a breach of the injunction and ordered the defendant to be imprisoned and his property to be attached.

6. On appeal the Subordinate Judge upheld the finding of a breach of the injunction but held that the application under Order XXXIX, Rule 2, should have been made to the Central Munsifs Court which was 'the Court granting the injunction' and which alone had jurisdiction to deal with the breach.

7. The plaintiff in the Munsifs Court successfully contended that Section 150 of the Code of Civil Procedure applied and the Court of the 3rd Munsif being the Court to which the business of the Central Munsifs Court was transferred had the powers of the transferring Court within the meaning of the section. Reliance was placed on the decision in Mouna Guruswami Naicker v. Sheikh Mahommadhu Rowthar 46 M. 83 : 86 Ind. Cas. 650 : A.I.R. 1923 Mad. 92 : 43 M.L.J. 713 : 16 L.W. 748 : (1922) M.W.N. 743, and it was sought to distinguish the decision of that Court in Sheikh Jaharuddi v. Hari Charan Poddar 18 C.W.N. 470 : 22 Ind. Cas. 499 : A.I.R. 1914 Cal. 815. I am of opinion that this contention incorporates into Section 150 a meaning which it was never intended to have.

8. In my view Section 150 refers to the change of the territorial limits of a Court's jurisdiction by notification or by special order and not to a mere distribution of work among Courts exercising the same jurisdiction.

9. The distinction was noticed by this Court in Mohammad Kazemali v. Nizamuddin Ahmed 26 C.W.N. 216 : 70 Ind. Cas. 210 : A.I.R. 1922 Cal. 41, where (at page 217 Page of 26 C.W.N.-[Ed.]), it was held that an assignment of business under Section 13(2) of Act XII of 1887 (Civil Courts Act) was not the same thing as a transfer of business under Section 150 of the Code, and it may well be that this was the reason why no reference was made to Section 150 either in ' the argument or in the judgment in Sheikh Jaharuddi v. Ram Charan Poddar 18 C.W.N. 470 : 22 Ind. Cas. 499 : A.I.R. 1914 Cal. 815. It is true that Mohammad Kazemali v. Nizamuddin Ahmed 26 C.W.N. 216 : 70 Ind. Cas. 210 : A.I.R. 1922 Cal. 41, was not followed in Mouna Guruswami Naickar v. Sheikh Mahammadhu Rowther 46 M. 83 : 86 Ind. Cas. 650 : A.I.R. 1923 Mad. 92 : 43 M.L.J. 713 : 16 L.W. 748 : (1922) M.W.N. 743, but a Full Bench of the Madras High Court in Ramier v. Muthukrishna Ayyar 55 M. 801 : 137 Ind. Cas. 305 : (1932) M.W.N. 255 : 61 M.L.J. 687 : 35 L.W. 742 : Ind. Rul. (1932) Mad. 373, at page 816 Page of 55 M-[Ed.], stated its complete agreement with the reasoning in the Calcutta decision.

10. But the lower Courts have held that there has been a breach of the injunction and it is unfortunate for the plaintiff that he has hitherto pursued his remedy before the wrong tribunal. The Rule must be discharged and the petitioner must pay the costs which I assess at one gold mohur.


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