1985 Supreme(Cal) 396

High Court Of Calcutta
Sukumar Chakravarty, J.

Dilip Banerjee : Appellant
Versus
Sukhamoy Upadhyay : Respondent
Decided On : Oct 04,1985

The High Court Notification under Section 21 (4) of the Bengal, Agra and Assam Civil Courts Act, 1887, has suspended or closed the forum of the District Judge to entertain and the appeals from the decrees or orders of the Munsifs of, 'asansol so long as the said notification remains in force and has opened. The forum of the Subordinate Judge at Asansol' to entertain and admit such appeals and accordingly the fundamental or inherent jurisdiction of the District Judge to entertain and admit such appeals under section 2 1 (2) of the Act has, only ceased to function subject, however, to the provisions of section 11 (4) of the Act.

Headnote:

CIVIL PROCEDURE CODE - Order 41, Rule 5 - Appeal from Munsif to District Judge - Notification under Section 21 (4) of Bengal, Agra and Assam Civil Courts Act, 1887 - Effect - Jurisdiction of District Judge - Stay of operation of impugned order - Principles.

Fact of the Case:

The plaintiffs filed a suit for a declaration that the action of the defendants in entertaining/considering the tenders submitted by Sreeroa Transport Agency for the transport job was unlawful and void. The plaintiffs also filed a petition for temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure and obtained the ad-interim injunction against the defendants till the disposal of the petition for temporary injunction. The petitioners Dilip Kumar Banerjee and Moloy Kumar Banejree carrying on business under the name and style of Sreena transport agency came to know about the suit and the ad-interim order of injunction already granted and got themselves added to the suit as defender Nos. 3 and 4. The defendant nos.- 3 and 4 then filed written objection to the plaintiffs' petition for temporary injunction and upon notice to the other parties to the suit filed also a petition for temporary injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure with a prayer for ad-interim injunction for restraining the defender nos. 1 and 2 from publishing any list of accepted tenders and giving affect to the tenders and allotting any work dated 6. 6. 85 so far as the tender work related to Tirat Colliery Bunker till the disposal of the suit. The learned Manse by his order dated 12. 7. 85 while fixing the date for nearing of the petition for temporary injunction granted ad-interim order of injunction restraining the defendant nos. 1 and 2 from publishing tint list of accepted tender and iron: goring of the tender in respect of the 'fender No. SAT/gm/sand/trans/85/5083 dated C. 6. 85. The defendant No. 1 and 2 (Eastern Coalfields Ltd. and its Manager) tiled the Misc. Appeal No. 9 of 1 985 on 15. 7. 85 before the learned District Judge, Burdwan, against the learned munsifs aforesaid Order dated 12. 7. 85 and obtained the stay of the operation of the impugned order of the learned Munsif pending the disposal of the Misc. Appeal as per the learned district Judges' Order dated 15. 1. 85.

Finding of the Court:

The High Court held that the Notification under Section 21 (4) of the Bengal, Agra and Assam Civil Courts Act, 1887, has suspended or closed the forum of the District Judge to entertain and the appeals from the decrees or orders of the Munsifs of, 'asansol so long as the said notification remains in force and has opened. The forum of the Subordinate Judge at Asansol' to entertain and admit such appeals and accordingly the fundamental or inherent jurisdiction of the District Judge to entertain and admit such appeals under section 2 1 (2) of the Act has, only ceased to function subject, however, to the provisions of section 11 (4) of the Act.

Issues: 1. Whether the District Judge had jurisdiction to entertain and admit the appeal from the order of the Munsif of Asansol in view of the notification issued under Section 21 (4) of the Bengal, Agra and Assam Civil Courts Act, 1887? 2. Whether the District Judge was justified in granting the stay of the operation of the impugned order against which the misc appeal was preferred?

Ratio Decidendi: 1. The High Court held that the notification under Section 21 (4) of the Bengal, Agra and Assam Civil Courts Act, 1887, has suspended or closed the forum of the District Judge to entertain and the appeals from the decrees or orders of the Munsifs of, 'asansol so long as the said notification remains in force and has opened. The forum of the Subordinate Judge at Asansol' to entertain and admit such appeals and accordingly the fundamental or inherent jurisdiction of the District Judge to entertain and admit such appeals under section 2 1 (2) of the Act has, only ceased to function subject, however, to the provisions of section 11 (4) of the Act. 2. The High Court held that the District Judge was not justified in granting the stay of the operation of the impugned order against which the misc appeal was preferred, as the first appellate court is under obligation to follow the principles of law as enunciated in 1983 (2) C. L. J. 72 with regard to the feasibility of granting stay of the operation of the impugned order till the (disposal of the said misc. appeal, unless there is any other decision of this High to the contrary.

Final Decision: The High Court allowed the revisional application and set aside the orders of the learned District Judge including the impugned order in the misc. appeal from the stage of the admission of the misc. appeal with a direction upon the learned District Judge, Burdwan, to return the memorandum of appeal to the filing Advocate for its presentation to the proper forum.