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Bhoja Hari Paria Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.569
AppellantBhoja Hari Paria
RespondentThe Secretary of State for India in Council
Excerpt:
civil procedure code (act v of 1908), section 24 - withdrawal of suit by district judge--when should be made--scope of section 24--erroneous view of law. - .....they had not been joined as parties. subsequently, the matter was brought to the notice of the district judge, in what manner it has not been explained, and on the 15th april 1912, he made an order for transfer of the pending suits to his own file: this is the order now assailed on behalf of the petitioner.2. the district judge states explicitly that in his opinion the order of the subordinate judge in the cases already finally tried by him, was contrary to two decisions of this court and that he transferred the pending cases to his own file as otherwise the subordinate judge might erroneously hold that the suits were properly constituted and could be heard in the absence of the under-tenants. the district judge thereupon proceeded to hear the cases which he had transferred to his.....
Judgment:

1. We are invited in this Rule to set aside an order made by the Court below on the 15th April 1912, under Section 24 of the Civil Procedure Code of 1908. It appears that thirty-one suits were instituted under Section 104H of the Bengal Tenancy Act; four of them were instituted in the Court of the Munsif, twelve in the Court of the first Subordinate Judge and the remaining fifteen in the Court of the second Subordinate Judge. Upon the application of the plaintiff, the cases were, shortly after their institution, transferred to the Court of the second Subordinate Judge. On the 19th September 1911, an application by the defendant, the Secretary of State for India in Council, praying that the under-tenants ought to be joined as parties defendants, was refused by the Subordinate Judge. On the 26th March 1912, the Subordinate Judge tried a group of eight cases and decreed the suits. One of the issues raised before him was whether the under-tenants were necessary parties; he held that although it might be desirable to have them on the record, the suits could not be dismissed on the ground that they had not been joined as parties. Subsequently, the matter was brought to the notice of the District Judge, in what manner it has not been explained, and on the 15th April 1912, he made an order for transfer of the pending suits to his own file: this is the order now assailed on behalf of the petitioner.

2. The District Judge states explicitly that in his opinion the order of the Subordinate Judge in the cases already finally tried by him, was contrary to two decisions of this Court and that he transferred the pending cases to his own file as otherwise the Subordinate Judge might erroneously hold that the suits were properly constituted and could be heard in the absence of the under-tenants. The District Judge thereupon proceeded to hear the cases which he had transferred to his own file by what he himself characterises as an unusual procedure' and came to the conclusion that the under-tenants ought to be joined as parties defendants. He accordingly directed the plaintiff to join the undertenants as defendants within a week and added that if his order was not carried out, the suits would be dismissed on the ground that they were improperly constituted. The District Judge further stated that should it be ultimately held by the High Court that his view of the law was erroneous, the Cases would have to be re-transferred to the Subordinate Judge because he had no time to hear original suits of this description. In oar opinion, upon the circumstances stated in the order of the District Judge, the order for transfer ought not to have been made.

3. Section 24 of the Code of 1908 authorises a District Judge to withdraw a suit pending in any. Court subordinate to his and to try and dispose of the same. The object of the Legislature is obvious; it was never intended that a District Judge should withdraw a suit merely because in an analogous case a Subordinate Judge had taken what in his opinion was an erroneous view of the law. If the District Judge does not intend to try the suit finally, the case ought not to be transferred merely to enable him to dispose of it on a preliminary ground. We may add that the motive of the District Judge has not been called in question before us, and it has not been disputed that he acted with a view to prevent what, he thought, might otherwise involve a waste of public time. It has only been argued and, in our opinion, correctly, that, in the admitted circumstances, the order for transfer should not have been made. The Rule will, consequently, be made absolute and the order of the 15th April 1912 discharged, in each of the cases. The result will be that the cases will be re-transferred to the file of the second Subordinate Judge. The Secretary of State will be at liberty to prefer appeals against the decrees of the Subordinate Judge in the cases decided on the 26th March 1912; if such appeals have already been preferred, the Secretary of State may apply to the Subordinate Judge to defer the trial of the other suites pending the result of the appeals. The Subordinate Judge will make such order as he considers appropriate; if he refuses to stay the hearing of the suits, the Secretary of State will be at liberty to apply to this Court.

4. The Rules are made absolute with costs, hearing fee one gold mohur in each case. All orders of the District Judge subsequent to the order of the 15th April will necessarily stand discharged.


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