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1965 Supreme(P&H) 55
PUNJAB & HARYANA HIGH COURT
S.S.Dulat, A.N.Grover and H.R.Khanna JJ.
Gangagir Chela
Versus
Rasal Singh
First Appeal No. 15 of 1957,
Decided On : MARCH 3, 1965
A suit under S. 92 of the Civil P.C. can be tried by an Additional District Judge to whom it is assigned by the District Judge under S. 76 of the Ordinance or S. 21 of the Act.
Headnote:
CIVIL PROCEDURE CODE - S. 92 - SUIT UNDER - CAN BE TRIED BY ADDITIONAL DISTRICT JUDGE TO WHOM IT IS ASSIGNED BY DISTRICT JUDGE - S. 76 OF THE PATIALA AND EAST PUNJAB STATES UNION JUDICATURE ORDINANCE, 2005 BK. (HEREINAFTER CALLED THE ORDINANCE) OR S. 21 OF THE PUNJAB COURTS ACT, 1918 (HEREINAFTER CALLED THE ACT).
Fact of the Case:
In 1955, a suit was filed under S. 92 of the Civil P.C. for removal of the defendant from the management of the property of Dera Baba Ram Chander Gir in village Kirsola, Tehsil Jind, for rendition of accounts etc., and for appointment of a new Manager. The plaint was presented on 2nd December, 1955 in the Court of the District Judge. On 6th December, 1955 it was ordered that the case should be put up before the District Judge on 8th December, 1955. Some objection was raised with regard to court-fee on 8th December, 1955. After the written statement had been filed, it seems that the case was transferred to the Court of Additional District Judge and issues were framed on 4th April, 1956.
Finding of the Court:
The Court held that the suit under S. 92 of the Civil P.C. could be instituted only in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government. The Court of the District Judge being the principal Civil Court of original jurisdiction, the contention of the learned counsel for the appellant is that it is the Court of the District Judge alone where a suit under S. 92 of the Code can be instituted. It is pointed out that the Court of the Additional District Judge is neither the principal Civil Court of original jurisdiction nor is it a Court specially empowered by the state Government to try such suits.
Issues: Whether the Court of the Additional District Judge to whom a case is transferred by the District Judge under S. 76 of the Ordinance or S. 21 of the Act, can try a suit which according to S. 92 of the Code can be instituted only in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government.
Ratio Decidendi: The Court held that although the suit could be instituted only in the Court of the District Judge that being the principal Civil Court of original Jurisdiction but under S. 76 of the Ordinance, the District Judge could assign to the Additional District Judge any business pending before him and the Additional District Judge could exercise the same powers as the District Judge and discharge his functions in the same manner as the District Judge could. Ex-facie the language of S. 76 of the ordinance or S. 21 of the Act is clear enough and hardly any room for doubt is left in the matter of the Additional District Judge being competent to discharge all the functions of the District Judge when any business pending before the District Judge is assigned to him obey the latter.
Final Decision: The Court answered the question referred to the Full bench in the negative.
A.N.Grover, J.
1. The short question which has to be answered by the Full Bench is whether the Court of the Additional District Judge, Sangrur, was not competent to try and dispose of a suit under S. 92 of the Civil P.C.
2. There is no dispute on the facts of the case out of which the above point has arisen. In 1955 a suit was filed under S. 921 for removal of the defendant from the management of the property of Dera Baba Ram Chander Gir in village Kirsola, Tehsil Jind, for rendition of accounts etc., and for appointment of a new Manager. The plaint was presented on 2nd December, 1955 in the Court of the District Judge. On 6th December, 1955 it was ordered that the case should be put up before the District Judge on 8th December, 1955. Some objection was raised with regard to court-fee on 8th December, 1955.
After the written statement had been filed, it seems that the case was transferred to the Court of Additional District Judge and issues were framed on 4th April, 1956. Issue No. 5 was to the following effect: "Is this Additional Court of the District Judge, Sangrur, not competent to hear this suit ?"
The Additional District Judge made an order on 8th May, 1956 disposing of this issue saying that the suit had originally been instituted in the Court of the District Judge and he had made over the case to his Court for disposal. There was nothing wrong in the order of transfer and, therefore, the aforesaid issue was decided against the defendant.
3. Now, S. 92 of the Civil P. C., provides--
"(1) In the case of any alleged breach of any express or constructive trust created for public purpose of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree-- * * * * * * * * * * * * * * * * * * * * * *
At the time the suit was instituted, the Patiala and East Punjab States Union Judicature Ordinance, 2005 Bk. (hereinafter called the Ordinance) was in force in the erst while State of Pepsu. The District of Sangrur being a part of the State, the provisions of the Ordinance governed the proceedings instituted in the Courts in that District. Section 72 of the Ordinance related to classes of Courts and besides the Judicial Committee, the High Court and the Courts established under any offer enactment, the following classes of civil Courts were established : (a) the Court of the District Judge;
(b) the Court of the Additional District Judge; and
(c) the Court of the Subordinate Judge.
Section 74 provided that the Raj Pramukh may in consultation with the High Court and the Public Service Commission, appoint as many persons as he thinks necessary to be District Judges. Section 77 was in the following terms: "(1) The Raj Pramukh may in consultation with High Court-- (a) Fix the number of subordinate Judges to be appointed in the Union;
(b) make rules as to the qualifications of persons to be appointed as Subordinate Judge; and
(c) after consultation with the public Service Commission prepare a list of persons to be appointed as Subordinate Judges and fix their order of seniority.
(2) The High Court shall make appointment s in the order of seniority as contained in that list."
According to S. 78, the Court of the District Judge was to be the principal Civil Court or original jurisdiction in the district. Section 18 of the Punjab Courts Act, 1918 (to be referred to as the Act) contained a similar classification of the Civil Courts, namely:-
(1) the Court of the district Judge;
(2) the Court of the Additional Judge; and
