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Ramji Dass Vs. Inder and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 84 of 1975
Judge
ActsPunjab Courts Act, 1918 - Sections 39(1), 39(3) and 40(1); ;Code of Civil Procedure (CPC) , 1908 - Section 24
AppellantRamji Dass
Respondentinder and anr.
Appellant Advocate B. Sita Ram, Adv.
Respondent Advocate K.D. Sood, Adv.
DispositionRevision dismissed
Cases Referred(Jiwan v. Sant Singh
Excerpt:
- .....the judgment and decree of the trial court was preferred by respondent no. 1 in the court of the district judge, simla. this appeal was admitted by the district judge on 24-12-1968. the learned district judge accepted the appeal, reversed the decree of the trial court and vide his judgment dated 25-7-1969 dismissed the suit of the plaintiff- petitioner.2. the petitioner then filed regular second appeal in this court against the appellate judgment of the district judge. that appeal was registered as r. s. a. no. 3 of 1970 in this court. later on realizing that in view of the express provisions of section 42 (2) of the punjab courts act, 1918 which was then in force, no second appeal could lie in the instant case, the petitioner made an application praying that his appeal be treated as a.....
Judgment:

T.R. Manda, J.

1. The petitioner Shri Ramji Dass filed a suit against the respondents for the recovery of Rs. 500/- in the Court of the Subordinate Judge, Nalagarh. The trial Court vide its judgment and decree dated 23-11-1968 decreed that suit as prayed in favour of the petitioner. An appeal against the judgment and decree of the trial Court was preferred by respondent No. 1 in the Court of the District Judge, Simla. This appeal was admitted by the District Judge on 24-12-1968. The learned District Judge accepted the appeal, reversed the decree of the trial Court and vide his judgment dated 25-7-1969 dismissed the suit of the plaintiff- petitioner.

2. The petitioner then filed regular second appeal in this Court against the appellate judgment of the District Judge. That appeal was registered as R. S. A. No. 3 of 1970 in this Court. Later on realizing that in view of the express provisions of Section 42 (2) of the Punjab Courts Act, 1918 which was then in force, no second appeal could lie in the instant case, the petitioner made an application praying that his appeal be treated as a revision and that this Court should quash the decree of the District Judge in exercise of its revisional powers inasmuch as the District Judge had passed the impugned judgment and decree without jurisdiction. That application was allowed and the appeal was ordered to be treated as a revision.

3. The only ground on which the petitioner sought to challenge the judgment and decree passed by the District Judge in appeal was that inasmuch as the High Court vide its notification dated 1-11-1968 issued under Section 39 (3) of the Punjab Courts Act had directed that appeals of the instant type would be preferred to the Senior Subordinate Judge, Simla, it was the Court of the Senior Subordinate Judge alone which could entertain and dispose of the appeal against the judgment and decree of the trial Court and the District Judge after the issue of the aforesaid notification under Section 39 (3), was left with no jurisdiction in the matter. A learned single Judge of this Court had earlier taken the view in the case of Ashok Kumar v. Om Parkash. reported in ILR (1972) Him Pta 407: (AIR 1973 Him Pra 25) that under such circumstances the jurisdiction of the District Judge was not ousted merely be cause the High Court had issued a notification under Section 39 (3) empowering the Senior Subordinate Judge to entertain and dispose of appeals against the judgments and decrees of the Subordinate Judges. Since, according to the learned counsel for the petitioner, the View taken in the case of Ashok Kumai (supra) called for reconsideration, the the Chief Justice directed that the matter be placed before a Division Bench. This if how this revision petition has been listed before us.

4. The relevant provision which deal With the appeals from the decrees and orders of the Subordinate Judges at the relevant time is found in Section 39 of the Punjab Court Act. 1918 which reads:--

'39. (1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie --

(a) to the District Judge where the value of the original suit in which the decree or order was made did not exceed five thousand rupees; and

(b) to the High Court in any other case.

(2) Where the function of receiving any appeals which lie to the District Judge under Sub-section (1) has been assigned to an Additional Judge, the appeals may be preferred to the Additional Judge.

(3) The High Court may by notification direct that appeals lying to the District Court from all or any of the decrees or orders passed in an original suit by any Subordinate Judge shall be preferred to such other Subordinate Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly and the Court of such other Subordinate Judge shall be deemed to be a District Court for the purposes of all appeals so preferred,' It may be noticed that in exercise of the powers vested in it under Sub-section (3) of Section 39 reproduced above, the High Court had issued a notification on 1-11-1968 directing that 'within the limits of the civil district of Simla and with effect from the date ha assumes charge, appeals lying to the District Court from decrees and orders passed by any Subordinate Judge:

(a) in a money suit of a value not exceeding Rs 1,000/-,

(b) in a land nut of a value not exceeding Rs. 250/- and

(c) in an unclassed suit of a value not exceeding Rs. 500/- shall be preferred to Shri A.L. Soni, Subordinate Judge of the first class, exercising jurisdiction within such civil district'. Vide the same notification the High Court further directed that the Court of Sbri A.L. Soni, Subordinate Judge of the First Class at Simla would be deemed to be a District Court for the purposes of such appeals preferred to it. Now the contention of the learned counsel for the petitioner is that once this notification under Section 39 (3) of the Punjab Courts Act had been issued by the High Court, the jurisdiction conferred on the District Judge by virtue of the provisions of Sub-section (1) of Section 39 must be deemed to have been taken away. After the issue of the aforesaid notification under Section 39 (3) by the High Court, the only Court which, according to the learned counsel for the petitioner, could entertain and dispose of an appeal against the judgment and decree of any Subordinate Judge exercising jurisdiction within the civil district of Simla and arising out of the suits of the type mentioned in the notification could be entertained only by Shri A.L. Soni, Subordinate Judge and that with effect from the date of the issue of the notification the District Judge was divested of his jurisdiction to entertain and dispose of the appeals which were required to be preferred in terms of the aforesaid notification before Shri A.L. Soni. Subordinate Judge. The impugned judgment and decree passed by the District Judge in appeal was, therefore, without jurisdiction and deserved to be set aside by this Court in exercise of its reviional jurisdiction.

5. After giving our due consideration to the arguments advanced by the learned counsel for the petitioner we find ourselves unable to subscribe to the view propounded by the learned counsel. It is a cardinal principle of law that ouster of jurisdiction lawfully vested in a Court is not to be readily inferred. Sub-section (1) of Section 39 expressly vests jurisdiction in the District Judge to hear appeals against the decrees and orders of the Subordinate Judges where the value of the original suit in which the decree or order was made, did not exceed five thousand rupees. Sub-section (3) does confer power on the High Court to issue notification directing that appeals lying to the District Courts from all or any of the decrees or orders passed in an original suit by any Subordinate Judge shall be preferred to some other Subordinate Judge as may be mentioned in the notification and thereupon such appeals shall be preferred accordingly and the Court of such Subordinate Judge shall be deemed to be a District Court for the purposes of all appeals so preferred. This provision certainly cannot be read as empowering the High Court to take away the appellate jurisdiction of the District Judge which the Legislature expressly conferred upon him by virtue of the provisions of Sub-section (1) of Section 39. Otherwise also the Legislature could not confer any unguided discretion on the High Court to take away the jurisdiction of the District Judge and thereby set at naught the legislative provision found in Section 39 (1) expressly conferring appellate jurisdiction on the District Judge. A notification issued by the High Court under Section 39 (3) would in our view only enable the particular Subordinate Judge named in such notification to exercise appellate jurisdiction in certain matters which could be exercised by the District Judge under the provisions of Sub-section (1) of Section 39. Such a notification was neither in tended to nor can it have the effect of takeing away the lawful jurisdiction vested in the District Judge under Sub-section (1) to entertain and hear appeals against the judgments and decrees of the Subordinate Judges where the value of the original suit in which the decree or order was made did not exceed Rs. 5,000/-.

6. It may be observed that the jurisdiction to entertain and hear appeals against the decrees or orders of the Subordinate Judges which lie to the District Court under the provisions of Section 39 (1) vests only in the District Court and not in any Subordinate Judge. The effect of issuing a notification under Section 39 (3) of the Punjab Courts Act by the High Court is to confer the appellate powers of the District Judge on a particular Subordinate Judge and while exercising such powers the particular Subordinate Judge is deemed to be a District Court for the purposes of all appeals so preferred to him. We are unable to appreciate as to why the District Judge who has been validly appointed to his office cannot exercise the appellate jurisdiction which can be exercised by a Subordinate Judge who is only deemed to be a District Judge for certain purposes.

7. A reference in this connection may also be made to the next section, that is, Section 40 of the Punjab Courts Act. Sub-section (1) of this section enjoins that a District Judge may transfer any appeals pending before him from the decrees or orders of the Subordinate Judges to any other Subordinate Judge under his administrative control competent to dispose of them. It is clear from the language of this sub-section that the District Judge may dispose of such appeals pending before him either himself or transfer them to a Subordinate Judge of competent jurisdiction in whose favour a notification under Section 39 (3) has been issued. The District Judge thus continues to enjoy his appellate jurisdiction for hearing and disposing of appeals against the decrees or orders of the Subordinate Judges which appeals could also be disposed of by a Subordinate Judge who is deemed to be a District Court in terms of the notification issued under Section 39 (3) of the Punjab Courts Act. The language of this sub-section thus admits of no doubt that the District Judge as also the Subordinate Judge in whose favour a notification under Section 39 (3) is issued, both enjoy concurrent jurisdiction to hear appeals in respect of which a notification under Section 39 (3) is issued in favour of the Subordinate Judge. It is, therefore, just not possible to say that after the issue of notification under Section 39 (3), the District Judge is divested of his jurisdiction to entertain or decide appeals against the judgments or orders of the Subordinate Judges which can be entertained and disposed of by a Subordinate Judge who is deemed to be a District Court.

8. Looking from yet another angle, the District Judge in exercise of his powers vested in him under Section 24 of the Civil P. C. also could withdraw any appeal pending in any Court subordinate to him and try to dispose of the same. In exercise of this power, therefore, the District Judge could withdraw any 'appeal which had been preferred before the Subordinate Judge conferred with the appellate powers by virtue of the notification issued under Section 39 (3) and dispose of the same himself. We are unable to appreciate as to how the jurisdiction of the District Judge can be said to have been ousted simply because a Subordinate Judge had also been conferred similar appellate powers.

9. Our attention was drawn to a decision of the Lahore High Court, reported in AIR 1936 Lah 575 (Jiwan v. Sant Singh), wherein a Division Bench of the Lahore High Court has taken a contrary view. With all respects for the learned Judges of the Lahore High Court, we are unable is appreciate the reasoning advanced in support of the view taken by their Lordships. After reproducing the provisions of Section 39 (3) of the Punjab Courts Act and referring to the language of the notification issued by the High Court under that provision, the learned Judges observed : 'In view of the provisions quoted above, it is clear that the appeal from the judgment and the decree of the trial Court lay to the Senior Subordinate Judge, Sialkot, and not to the District Judge, as the suit Was undoubtedly an unclassed suit of- the value of Rs. 75/-. The [earned District Judge acted without jurisdiction in hearing the appeal and his judgment and decree must, therefore, be set aside.' For the reasons already stated we would respectfully differ from the view taken by the Lahore High Court and hold that the District Judge was not divested of his jurisdiction to entertain and decide the appeals from the decrees or orders of the Subordinate Judges which he could lawfully entertain and dispose of by virtue of the jurisdiction vested in him under Section 39 (1) of the Punjab- Courts Act

10. With these remarks we maintain the judgment and decree of the learned District Judge and dismiss this revision petition but with no order as to costs.


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