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Bansi Lal Dogra and Etc. Vs. Lt. Col. C.S. Jamwal and Etc. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. Nos. 94, 105 and 167 of 1981 and 12 of 1982
Judge
Reported inAIR1984J& K44
ActsConstitution of Jammu and Kashmir; ;Jammu Kashmir Civil Courts Act, 1977 Smvt. - Sections 17 and 18
AppellantBansi Lal Dogra and Etc.
RespondentLt. Col. C.S. Jamwal and Etc.
Appellant Advocate Vishno Gupta,; R.P. Sethi,; L.K. Sharma and;
Respondent Advocate S.D. Sharma, Adv.
DispositionPetition dismissed
Cases ReferredMohamed Abdul Raoof v. State of Hyderabad
Excerpt:
- .....suit was pending in the court of city judge, jammu. on its redesignation as the court of second civil subordinate judge, jammu, this suit was transferred to the court of special mobile magisrate, passenger tax and shops establishment, jammu. likewise, in civil revision petition no. 12 a civil suit was pending in the court of district judge, jammu. on its redesignation as the court of first additional district and sessions judge, jammu, the suit was transferred to the court of special judge, anti-corruption, jammu.3. in exercise of its powers under section 18, civil courts act, 1977 hereinafter to be referred to as the act. the high court may whenever the business pending before a munsiff requires the aid of an additional munsiff. for its speedy disposal, appoint an additional munsiff.....
Judgment:
ORDER

I.K. Kotwal, J.

1. This judgment will dispose of Civil Revision Petitions Nos. 94, 105 and 167 of 1981 and 12 of 1982, wherein two common questions of law, one, whether the transferee court is a validly constituted courts and two, whether Honorable the Chief Justice could have transferred to it the case pending before a Civil Court of competent jurisdiction by exercising the administrative powers of the High Court, have arisen for determination. Both these questions have been answered by the transfereecourts against the petitioners, hence these revision petitions.

2. In Civil Revision Petition No. 94, a civil suit was pending in the court of Sub-Registrar (Munsiff) Jammu. On its redesignation as the court of First Additional Munsiff (F. M.) Jammu, the suit was transferred to the court of Forest Magistrate, Jammu. Similarly, in Civil Revision No, 105, a civil suit was pending in the Court of Sub-Judge (C J M), Jammu. On its redesignation as the Court of First Additional Subordinate Judge, Jammu, the suit was transferred to the court of Municipal Magistrate, Jammu. In Civil Revision No, 167, a civil suit was pending in the Court of City Judge, Jammu. On its redesignation as the Court of Second Civil Subordinate Judge, Jammu, this suit was transferred to the Court of Special Mobile Magisrate, Passenger Tax and Shops Establishment, Jammu. Likewise, in Civil Revision Petition No. 12 a civil suit was pending in the Court of District Judge, Jammu. On its redesignation as the Court of First Additional District and Sessions Judge, Jammu, the suit was transferred to the Court of Special Judge, Anti-Corruption, Jammu.

3. In exercise of its powers Under Section 18, Civil Courts Act, 1977 hereinafter to be referred to as the Act. the High Court may whenever the business pending before a Munsiff requires the aid of an Additional Munsiff. for its speedy disposal, appoint an Additional Munsiff with the previous sanction of the Government to exercise all the powers of a Munsiff. It is common ground that the Forest Magistrate before he was appointed to the said post was a Munsiff duly appointed by the Government. He has been appointed by the High Court as First Additional Munsiff with the previous sanction of the Government. There is, therefore, nothing wrong with his appointment. The contention raised on behalf of the petitioner, however, Was that the Additional Munsiff appointed under Sub-section (2) of Section 18 can discharge only those functions which the Munsiff with the approval of the District Judge may assign to him. For this reliance was placed upon the following expression occurring in Sub-section (2) : '.........and such Munsiffshall discharge any of the functions which the Munsiff with the approval of the District Judge may assign to him and in the exercise of these functions he shall exercise all the powers of the Munsiff.' For what I am going to hold in regard to the powers of the High Court to transfer cases to courts subordinate to it in exercise of its administrative powers, it is not necessary to dispose of this contention on its merits at this stage. This point will be incidentally dealt with while dealing with the question of the aforesaid powers of the High Court at the later stage of this judgment. Suffice it to say that the transferee court of First Addl. Munsiff (F. M.) Jammu is a court of Munsiff within the meaning of Sub-section (2),

4. Under Section 17 of the Act, the number of Subordinate Judges is to be fixed by the Govt. in consultation with the High Court. This section does not limit the appointment of a Subordinate Judge in a District to one only. The number of such Judges has necessarily to be fixed keeping in view the volume of the work in the District. If the Govt. is of the opinion that one Subordinate Judge cannot cope with the work in a District, it may in consultation with the High Court appoint more than one Subordinate Judge in a single District; In case it does so, the Judges, for their proper identification, may be designated as First Civil Subordinate Judge, Second Civil Subordinate Judge so on so forth, dependingupon the number of Subordinate Judges thus appointed. There is, therefore, no substance in -Mr. Sethi's contention that since First Civil Subordinate Judge as such is not mentioned in Section 17, therefore, the appointment of Municipal Magistrate. Jammu, as First Addl., Civil Subordinate Judge was illegal. On the parity of the reasoning no fault can also be found with the appointment of Special Mobile Magistrate, Passenger Tax and Shops Establishment, Jammu, as Second Civil Subordinate Judge, Jammu.

5. Section 16 of the Act provides that when the business' pending before any District Judge requires the aid of an Addl. Judge or Judges, for its speedy disposal, the Government may on the recommendation of the High Court appoint such Additional Judge or Judges as may be necessary. An Additional Judge so appointed shall discharge any of the functions of a District Judge, which the District Judge may assign to him, and in the discharge of these functions he shall exercise the same powers as the District Judge. On its plain language this section envisages a power in the Government to appoint more than one Additional District Judge on the recommendation of the High Court who shall exercise all the powers of a District Judge. It is not disputed that Special Judge Anti-Corruption Jammu has been appointed by the Government as First Addl. District Judge, Jammu, on the recommendation of the High Court. He is, therefore, competent to exercise all the powers of a District Judge: Here again an argument was advanced on behalf of the petitioner that an Addl. District Judge can discharge only those functions as may be assigned to him by the District Judge. This plea will again be dealt with while dealing with the other common question as to whether or not the High Court can transfer a case to a court subordinate to it in exercise of its administrative powers.

6. For the main contention that the High Court could not have transferred these cases in exercise of its administrative powers, reliance was placed on behalf of the petitioners on Section 38 of the Act. which is extracted as below ;

'Subject to the provisions of any enactment for the time being in force, the High Court may on its own motion, or on the application of party, withdraw any proceeding which is pending in any Court subordinate to it, and for the withdrawal of which provision is not made in Sections 24 and 141, Civil P. C, and may either itself dispose of the proceedings or transfer it for disposal to any other subordinate Court.'

7. It was urged that apart from Section 38, or a provision to that effect contained in any other enactment for the time being in force the High Court has no power to transfer a case from one Court to another court, where such an order can be made by it in exercise of its powers under Section 24 or Section 24 read with Section 141, Civil P. C. Since transfer orders in these revision petitions could not have been passed by the High Court under Section 24 as well, the Chief Justice had no power to transfer these cases in exercise of his administrative powers, even assuming that Section 38 envisaged not only judicial but also administrative powers of transfer in him. I find no force in this contention, for, assuming that these cases could have been transferred by the High Court in exercise of its judicial powers under Section 24, this argument clearly over looks Section 104, Constitution of Jammu and Kashmir, Sub-sections (1) and (2) whereof read as under:

'Superintendence and control of subordinate Courts--(1) The High Court shall have superintendence and control over all Courts for the time being subject to its appellate or revisional jurisdiction and all such courts shall be subordinate to the High Court.

(2) Without prejudice to the generality of the foregoing provision, the High Court may-

(a) call for returns from such Court;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which book entries and accounts shall be kept by the officers of any such court.'

8. The power that this section confers on the High Court is essentially administrative in character, though it has been held by the courts that it also includes the power of judicial superintendence and control as well. Section 104 corresponds to Article 227 of the Constitution. Dealing with the nature of the powers of the High Court under Article 227 a Division Bench of the Travancore-Cochin High Court in Mathew v. Ouseph Kuruvilla, AIR 1955 Trav.-Co. 24 observed as under (para 4):

'This aspect of the case, however, is of no material importance in view ofArticle 227 of the Constitution. Article 227 reads as follows: 'Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.'

There can be no doubt that the Election Commissioner is a tribunal with all the trappings of a Court and that he exercises judicial as distinct from administrative or inquisitorial functions in the discharge of his duties. There cannot also be any doubt that the word 'superintendence' as pointed out by Rankin C. J. in 'Manmatha Nath v. Emperor' AIR 1933 Cal 132 (A) is a term of legal force and significance involving the responsibility to keep the Courts and tribunals concerned within the bounds of their authority, to see that they do their duty, and that they do it in a legal manner. To the same effect is the decision of the Supreme Court in Waryam Singh v. Amarnath, AIR 1954 SC 215 (B) wherein it has been held that the power of superintendence covers both administrative and judicial matters and that it should be invoked in all cases of a non-exercise or illegal exercise of a jurisdiction vested by law in any Court or tribunal.'

In Lakhama Pesha v. Venkatrao Swamirao Nazare, AIR 1955 Bom 103 it was held (at p. 104):

'Under the Constitution the High Court has been given the power of superintendence over all courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, and the superintendence contemplated by this article is not only administrative superintendence but judicial superintendence. Till the Government of India Act, 1935 was passed and Sub-section (2) of Section 224 was enacted, the High Court had power both of administrative and judicial supervision over courts subject to its appellate jurisdiction.'

9. To the same effect are the observations contained in Motilal v. State through Sm. Sagarwati, AIR 1952 All 963:

'Articles 226 and 227 are thus supplementary to each other. The emphasis under Article 227 is on administrative control and the limited judicial powers contemplated by it are intended for and merely ancillary to such administrative control.........'

10. It is essentially for the High Court to see that the disposal of casespending in the courts subordinate to it is not delayed. To achieve this object it has to take all steps that it considers necessary to ensure speedy disposal of the cases. Distribution of business to courts subordinate to it, or the withdrawal of case from one Court and transferring the same to another court or courts, are all steps which belong to the realm of superintendence and control. The High Court is as much interested in speedy disposal of the cases as the litigant himself is; and perhaps a little more. It may have some time to do so in exercise of its administrative powers as following judicial procedure in such matters in some cases may do more harm than good, though the fact remains that these powers the High Court will exercise only sparingly. Again, this power is a constitutional power, which the High Court does not have to exercise subject to the provisions of any statute. Constitutional powers, it is well settled are unfettered by a statute. Once a case is, therefore, transferred by the High Court from one Court to another in exercise of its administrative powers under Section 104, the transferee court if otherwise competent to try the same, shall not be rendered incompetent for the simple reason that the trial of the case is not included in its functions in terms of Section 17 or 18 of the Act. Functions of a court are entirely different from its powers; pecuniary or with regard to the subject matter. Its functions may be restricted to a particular lis, nevertheless its aforesaid power to try any other lis of that nature cannot be so restricted provided the same is there.

11. The question, that the power of superintendence and control contemplated by Section 104 include the power of transfer of a case from one Court to another, is also no more res integra. In Maharaj Kumar Gajbir Singh v. Maharaja Satbir Singh, AIR 1968 Punj and Har 301, it was held (para 1):

'Prima facie it appears to me that the finding of the learned District Judge on the second point is not quite correct. Section 146, Criminal P. C., envisages a reference being made to a Civil Court of competent jurisdiction. 'Competent jurisdiction' in that provision refers, in my opinion, to the competency as to the territorial jurisdiction as well as pecuniary jurisdiction. In any case the litigation in question should in the interestsof justice be dealt with only by a Subordinate Judge, First Class. Assuming that Section 24, Civil P. C. cannot be invoked for transfer of such proceedings, this Court has ample jurisdiction to transfer the case in exercise of its powers of superintendence under Article 227 of the Constitution.'

12. A similar view was taken by a Full Bench of Hyderabad High Court in Mohamed Abdul Raoof v. State of Hyderabad AIR 1951 Hyd 50, wherein also it was held (para 3):

'In our opinion Article 227 of the Constitution is applicable to the Court of the Special Tribunal and the powers of superintendence conferred on the High Court are sufficiently wide to include the principles laid down in Section 494, Hyderabad . Criminal P. C., and to empower us to deal with these applications. It is, therefore, unnecessary to give any finding as to the applicability of Section 494 or of Article 226 of the Constitution.

13. No fault can thus be found with the orders of Hon'ble the Chief Justice transferring these cases in exercise of his administrative powers.

14. All the pleas taken by the petitioners having failed, the petitions also fail, which are dismissed with costs accordingly. Counsel fee to be Rs. 200/- in each case.


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