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Punjab State Vs. Joginder Nath - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Reference No. 2 of 1970
Judge
Reported inAIR1972HP108
ActsPunjab Reorganization Act, 1966 - Section 93(2); ;Code of Civil Procedure (CPC) , 1908 - Section 113
AppellantPunjab State
RespondentJoginder Nath
Appellant Advocate D.P. Sud, Adv.
Respondent Advocate R.S. Phul, Adv.
Excerpt:
- .....october 27, 1966, the state of punjab preferred an appeal against the decree in the court of the learned district judge. hoshiarpur. on november 1, 1966, the state of punjab was re-organized under the punjab reorganization act, 1966 and the territory comprised in the district of kangra was, under section 5 (1) of that act, added to the union territory of himachal pradesh. the appeal which was pending in the court of the learned district judge, hoshiarpur was transferred to the court of the learned district judge. kangra at dharamsala, who transferred the appeal to the learned additional district judge there for disposal. when the appeal came on for hearing before the learned additional district judge, he was assailed by doubt whether he had jurisdiction to hear it as, it seemed to him,.....
Judgment:
ORDER

R.S. Pathak, C.J.

1. This is a reference made by the learned Additional District Judge, Kangra at Dharamsala under Section 93 (2) of the Punjab Reorganization Act, 1966.

2. The respondent Joginder Nath filed a suit before the Senior Sub-Judge. Kangra at Dharamsala challenging the validity of an order reverting him from the post of Head Clerk in the office of the Executive Engineer, Kangra Public Health Division, to the post of Accounts Clerk in that office. The suit was decreed by the trial court on September 12, 1966. Thereafter, on October 27, 1966, the State of Punjab preferred an appeal against the decree in the court of the learned District Judge. Hoshiarpur. On November 1, 1966, the State of Punjab was re-organized under the Punjab Reorganization Act, 1966 and the territory comprised in the District of Kangra was, under Section 5 (1) of that Act, added to the Union Territory of Himachal Pradesh. The appeal which was pending in the court of the learned District Judge, Hoshiarpur was transferred to the court of the learned District Judge. Kangra at Dharamsala, who transferred the appeal to the learned Additional District Judge there for disposal. When the appeal came on for hearing before the learned Additional District Judge, he was assailed by doubt whether he had jurisdiction to hear it as, it seemed to him, it related to the territories of the State of Punjab and should be heard by a competent court in that State. Being doubtful of his jurisdiction to hear the appeal, he has made the present Reference.

3. At the outset, the question arises whether the Reference is competent. It has been made under Section 93 (2) of the Punjab Reorganization Act, 1966, and it is a matter for consideration whether that provision can be invoked. Section 93 provides :

'(1) Every proceeding pending immediately before the appointed day before a court (other than a High Court), tribunal, authority or officer in any area which on that day falls within a State or Union territory shall, if it is a proceeding relating exclusively to the territories which as from that day are the territories of another State or Union territory, stand transferred to the corresponding court, tribunal, authority or officer in that other State or Union territory as the case may be.

(2) If any question arises as to whether any proceeding should stand transferred under Sub-section (I), it shall be referred to the High Court having jurisdiction in respect of the area in which the court, tribunal, authority or officer before which or whom such proceeding is pending on the appointed day, is functioning, and the decision of that High Court shall be final.'

From the plain terms of Section 93 (1), it is apparent that if a proceeding is pending immediately before November 1, 1966 before a court (other than a High Court) in an area which on that day falls within a State, and it is a proceeding relating exclusively to a territory which as from that day becomes the territory of a Union Territory, it shall stand transferred to the corresponding court in the Union Territory. Section 93 (2) provides that if any question arises as to whether any proceeding should stand transferred under Sub-section (1). it shall be referred to the High Court having jurisdiction in respect of the area in which the court before which that proceeding was pending on November 1, 1966 is functioning. The decision of that High Court is final in the matter.

4. Now, admittedly the proceeding was pending in the court of the learned District Judge. Hoshiarpur on November 1, 1966. Whether or not Section 93 (1) applied to it and it should stand transferred was a question which, by virtue of Section 93 (2), could be referred by that court to the High Court having jurisdiction in respect of the area in which that court was functioning. That High Court could only be the High Court of Punjab and Haryana. In other words, the Reference Could be made only by the learned District Judge, Hoshiarpur and it could be made only to the High Court of Punjab and Haryana. It seems that no doubt was felt by the learned District Judge, Hoshiarpur when he transferred the case to the court of the learned District Judge, Kangra at Dharamsala and consequently there was no occasion for his invoking the power conferred by Section 93 (2). Section 93 (2) did not confer any power on the learned District Judge, Kangra at Dharamsala, or for that matter, on the learned Additional District Judge there, to refer the case to this High Court. In my opinion, the present Reference cannot be justified under Section 93 (2).

5. Learned counsel for the appellant has invited my attention to Section 113 of the Code of Civil Procedure, and has urged that the Reference could be justified under that provision. But when we turn to Order XLVI. Rule I of the Code, to which Section 113 is subject, it is clear that the reference cannot be justified under Section 113 either. Order XLVI, Rule 1 permits a Reference in the case of an appeal in Which the decree is not subject to appeal. It is admitted that in the present case an appeal will lie from the appellate decree made by the learned Additional District Judge, Kangra at Dharamsala.

6. In my judgment, the present Reference is invalid. It is, therefore, returned unanswered.


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