The first in line is the decision of Benisham Mohanlal Khetan v. Mahadeo Tukaram, Borkar, Indeed, the learned Single Judge
sitting at Nagpur Bench was confronted with the point whether a Civil Court by allowing an amendment which resulted in ousting its own jurisdiction can do so and secondly the course to be followed after the ouster of the jurisdiction. The learned Single Judge answered that under Order VI, Rule 17 of the Civil Procedure Code a Court can allow amendment even when it results in ousting its own jurisdiction and once the amendment allowed is carried out the proper course is to return the amended plaint to the plaintiff for presentation to the proper Court under Order VII, Rule 10 of the Civil Procedure Code.1
Bombay High Court
Dkm Property Investments And Ors. vs Tolentino Pereira And Ors. on 9 November, 1992
Equivalent citations: 1993 (2) BomCR 479
1. By this application the original plaintiffs in Regular Civil Suit No. 45/92/B pray that, that suit be transferred to the Court of Civil Judge, Senior Division (A'Court) at Panaji.2. Regular Civil Suit No. 45/92 when instituted was valued for the purposes of jurisdiction at Rs. 2,000/- and was instituted in the Court of Civil Judge, Senior Division at Panaji. Being a suit of a valuation less that Rs. 25,000/- the suit was on the Board of Junior Judge. A little later the plaintiffs sought revaluation of the suit by amending the plaint and which came about as a result of seeking some further reliefs. There is no point in dilating on this subject as, in my view, I am not called upon to go into the question of amendment. The only relevant fact is that after the amendment was permitted by the Junior Judge the valuation of the suit was far in excess of Rs. 25,000/-. Naturally, with amendment carried out the Junior Judge lost his jurisdiction to try that suit. The original plaintiffs apprehend that the Junior Judge may return the plaint to them for presentation to the proper Court having jurisdiction and probably with a view to pre-empt that action the present application is instituted under section 24 of the Code of Civil Procedure. It is common ground that until this date the Junior Judge had made no Order of any kind except to record in the Roznama that the original plaintiffs have already moved this Court by way of transfer application.
3. The questions to ask are :
(1) Whether the present application is liable to be entertained as an application in for transfer of the suit under section 24 of the Code of Civil Procedure ; and
(2) As contended on behalf of the non-applicants whether regard being had to the provisions of the Goa, Daman and Diu Civil Courts Act, 1965, the Civil Manual issued by the High Court and the provisions of the Code of Civil Procedure, the Junior Judge has to return the plaint to the original plaintiffs for presentation to the Court having jurisdiction in the matter.
4. Mr. Noronha, learned Counsel appearing for the original plaintiffs, has in any event urged that on the assumption that this Court is unable to exercise powers under section 24 of the Code of Civil Procedure, there is no question of returning the plaint under Order VII, Rule 10 of the Code of Civil Procedure and the maximum that has to happen is that the Junior Judge will have to obtain an administrative Order from the District Judge to get the suit transferred to the Senior Judge. He however relied on the decision of the learned Single Judge of this Court to show as to how this matter has been looked upon in the decision of Jawahar Gendalal Banode v. Somajibhai Karsanji Patel, reported in 1986 Maharashtra Law Journal 480. It may be pointed out that a reference was made to Rule 189 of the Civil Manual which appears to be an error for it ought to be Rule 233 of the Civil Manual issued by the High Court of Judicature of Bombay (Appellate Side) for the guidance of the Civil Courts, and Offices subordinate to it and it is to this effect; when a suit assigned for disposal by a Civil Judge of the Senior Division to his joint Civil Judge of the Junior Division is found by the latter to be beyond his precuniary jurisdiction he should request the District Judge to transfer the suit administratively to the Civil Judge of the Senior Division. While looking into the matter the learned Single Judge held that the above Rule can at the most be held to be prescribing procedure and the manner in which the District Judge can be approached in given circumstances for passing suitable orders of transfer and it cannot be the source of power to transfer or withdraw suits to some other Courts and if at all that source of power would be section 24 of the Code of Civil Procedure and no other. The power of the District Judge to administratively transfer the matter under Rule 233 of the Civil Manual is not denied in that authority.
5. Shri Dessai, learned Counsel appearing for some of the respondents, has a considerable quarrel with regard to the maintainability of this application under section 24 of the Code of Civil Procedure on one hand and the exercise of the power by the District Court in the eventuality of Junior Judge seeking the transfer to the Senior Judge, on the other. He urges that his contention is based on the proposition that a civil suit had been instituted in the Court of Civil Judge, Junior Division, at Panaji. He therefore says when initially the suit is instituted in that class of Courts and if the matter is now required to go before the Court of Civil Judge, Senior Division on account of change of valuation there is no alternative but to return the plaint to the original plaintiffs for presentation to the proper Court having jurisdiction. To buttress this point Mr. Dessai relies upon section 15 of the Civil Procedure Code, a few sections of the Goa, Daman and Diu Civil Courts Act, 1965 and some authorities. Section 15 of the Civil Procedure Code states that the suit shall be instituted in the Court of the lowest grade competent to try it which, in any event, on a plain interpretation would mean that the suit shall be filed before the lowest Court which is competent to try it and the same cannot be instituted by bypassing such a Court, in a superior Court.
6. Insofar as the constitution and organization of the District Court and subordinate Civil Courts in the territory of Goa is concerned, there is a statute in the field known as Goa, Daman and Diu Civil Courts Act, 1965. Part III deals with Civil Judges. Section 15 thereunder stipulates the number of the subordinate Civil Courts, subordinate to the District Court as the Administrator may from time to time determine. The reference to the Administrator obviously is because when this statute was enacted the territory of Goa was a Union Territory. Section 16 speaks of requirements of the Administrator to make such an appointment. Section 17 prescribes the local limits of jurisdiction of Civil Judges and the Administrator is required to issue Notification in the Official Gazette fixing or altering local limits of the ordinary jurisdiction of the Civil Judges. Section 18 in terms speaks of the requirements of fixing place or places for Civil Judge to hold their Courts as the Administrator may from time to time appoint. It also enables the Administrator that a Civil Judge can hold is Court outside the jurisdiction of his local limits provided such an order has been issued. Section 19 speaks of Additional Civil Judges and this is with a view to assist the Judge of a Court insofar as the disposal of the civil business is concerned. The Additional Civil Judge is required to dispose of such civil business within his pecuniary jurisdiction as may, subject to the control of the District Judge, be referred to him by the Civil Judge of such Court. Section 20 refers to classes of Civil Judges and their jurisdiction which reads to this effect :
(1) The Civil Judges shall be of two classes, namely, Senior Civil Judges and Junior Civil Judges.
(2) The jurisdiction of a Senior Civil Judge extends to all original suits and proceedings of a civil nature.
(3) The jurisdiction of a Junior Civil Judge extends to all original suits and proceedings of a civil nature wherein the subject matter does not exceed in amount or value twenty five thousand rupees.
The local limits of jurisdiction of classes of Civil Judges as spoken of in section 20 are laid down in section 21 which reads thus :
(1) The local limits of the jurisdiction of every Civil Judge, Senior or Junior, shall be such as may from time to time be fixed by the Administrator in consultation with the High Court by notification in the Official Gazette.
(2) A senior Civil Judge in addition to his ordinary jurisdiction, shall have and exercise jurisdiction, in respect of such suits and proceedings of a civil nature as may arise within the local jurisdiction of such courts presided over by a Junior Civil Judge as may be specified by the Administrator in consultation with the High Court by notification in the Official Gazette and wherein the subject matter exceeds the pecuniary jurisdiction of the Junior Civil Judge as defined in the preceding section.
7. Mr. Dessai now says that the scheme of the Goa, Daman and Diu Civil Courts Act, 1965 clearly envisages the two classes of Civil Judges, namely. Senior Judges and Junior Judges and with that the two classes of Courts, namely, the Court of the Civil Judge, Senior Division and the Court of Civil Judge, Junior Division. He points out that as the position stands in Panaji today there is one Senior Judge and three Junior Judges and the result is the Court where the Senior Judge sits is the Court of Civil Judge, Senior Division and likewise where the Junior judges sit they are Courts of Civil Judge, Junior Division. In the absence of any specific assignment by the Senior Judge upon registration of a suit when it goes on the file of any of the three Junior Judges, according to him, that Junior Judge assumes independent jurisdiction in the suit as if the suit has been instituted before him and in his Court, and therefore, if for any reason the jurisdiction of that Junior Judge is ousted for lack of pecuniary jurisdiction or for some other cause including a change in the Statute ousting jurisdiction the question of transfer is not conceived and what must come into play is Order VII, Rule 10 of the Code of Civil Procedure. He now seeks to take assistance of section 21 of the Civil Courts Act as a fortiorari in the matter that a Civil Judge, Senior Division cannot even try a suit where the pecuniary jurisdiction is less than Rs. 25,000.
8. If the premises that at Panaji there is an independent Court of the Civil Judge, Junior Division as contended by Shri Dessai is held to be correct, then indeed Shri Dessai will be right, but on the contrary, if it is held that at Panaji there is only a Court of Civil Judge, Senior Division, there are no basis for accepting that Order VII, Rule 10 of the Civil Procedure Code shall come into play. The present dispute, therefore, is in my view solely dependent on this aspect of the matter.
9. Any Court brought into being can only be under sections 18 and 21 of the civil Courts Act 1965. We have already seen section 20 of the Act where two classes of Civil Judges, namely, Senior Civil Judges and Junior Civil Judges, are spoken of. The embargo upon Junior Civil Judge under sub-section (3) thereof is that his jurisdiction extends to all original suits and proceedings of a civil nature wherein the subject-matter does not exceed an amount of Rs. 25,000/-. Section 21 speaks about local limits of jurisdiction to be decided by the Administrator in consultation with the High Court by Notification to be made in that behalf and published in the Official Gazette as may from time to time be fixed. Sub-section (2) empowers the Administrator in consultation with the High Court by Notification in that behalf in the Official Gazette to confer jurisdiction in a Senior Civil Judge in addition to his ordinary jurisdiction, i.e. within his local area to exercise jurisdiction in respect of such suits and proceedings of a civil nature that may arise within the local jurisdiction of such Courts presided over by Junior Civil Judge and wherein the subject-matter exceeds the pecuniary jurisdiction of the Junior Civil Judge. Sub-section (2) of section 21 would, therefore, simply mean that if at particular place there is in existence a Court presided over by a Junior Judge, obviously, he shall have no jurisdiction to entertain suits the value of the subject-matter whereof exceeds Rs. 25,000/-.
10. With a view not to make the litigants remedyless the Administrator is empowered to notify another Court presided over by Senior Civil Judge to exercise jurisdiction in those suits subject-matter wherein exceeds Rs. 25,000/-. There is, therefore, no other way of reading sub--section (2) as sought to be pointed out by Shri Dessai, learned Counsel for the respondents and I will presently point out as a classic example as was available in this territory and which continues to be available even till today. For a very long time the Civil Court at Ponda and Vasco da Gama was presided over by Junior Judge and by virtue of sub-section (2) of section 21 the jurisdiction in respect of suits where the subject-matter involving exceeded Rs. 25,000/- (at one time it was Rs. 10,000/-) was conferred on Panaji Civil Court presided over by Senior Civil Judge insofar as Ponda is concerned and on Civil Court at Margao presided over by a Senior Civil Judge insofar as Vasco da Gama Court is concerned. For that matter the courts recently created at Satari, Pernem, Sanguem and Canacona are presided over by Junior Judges. The result is under sub-section (2) of section 21 the Courts of Civil Judges, Senior Division in adjoining. Talukas have been conferred jurisdiction to entertain suits where the pecuniary jurisdiction is in excess of Rs. 25,000/-.
11. I will point out another facet of some provisions of the Civil Courts Act. Take for instance section 19 which speaks of Additional Civil Judges. The section in terms states that for the purpose of assisting the Judge of any subordinate Court (subordinate Court will include Courts of Civil Judges, Junior Division as well as Senior Division) in the disposal of civil business on his file the Administrator may appoint an Additional Civil Judge to dispose of such civil business as may, subject to the control of the District Judge, be referred to him by the Civil Judge of that Court. Simply stated this would mean that when eventuality arises for the purposes of disposal of civil work when the Presiding Judge of a concerned Court is overburdened there is a provision for appointment of an additional Judge and that additional Judge is required to dispose of civil work, undoubtedly, within his pecuniary jurisdiction, however subject to the control of the District Judge. It is, therefore, possible that in a given Court when there are large number of special civil suits, that is to say, suits exceeding pecuniary jurisdiction in excess of Rs. 25,000/-, an additional Judge may be appointed therein. That additional Judge is required to dispose of work as directed by general or special order of the District Judge. In the same fashion when an eventuality arises for disposal of a large number of suits involving pecuniary jurisdiction which are less than Rs. 25,000/- and which cannot be adequately disposed of by the Senior Judge because of his burden of requiring to dispose of suits in excess of his pecuniary jurisdiction, Junior Judges are appointed to dispose of these cases. Since the jurisdiction of the Junior Judge is limited to pecuniary jurisdiction upto Rs. 25,000/- those matters are made over to him under the directions issued by the District Court. Viewed thus, in my view, Rule 233 of the Civil Manual issued by the High Court assumes importance. It says that when for any reason a suit assigned for disposal to a Judge of Junior Division and which later on is found to be beyond his pecuniary jurisdiction, he should forward his request to the District Judge to transfer the suit administratively to the Senior Civil Judge and the question of returning the plaint to the plaintiff for being judicially presented to the proper Court to return it to the Civil Judge, Senior Division does not arise. The reference to the District Judge and his administrative order thereon is therefore directly attributable because the assignment of the work to a Junior Judge comes by virtue of the directions of the District Judge.
12. Mr. Dessai's argument is misconceived when he points out that when a suit is filed even in the Court of Civil Judge, Senior Division he cannot exercise jurisdiction in a suit if the pecuniary jurisdiction is below Rs. 25,000/-. I am unable to accept the logic behind this argument at any rate as it is open to the Senior Judge to exercise jurisdiction in any suit where the pecuniary value is below Rs. 25,000/- or in excess thereof. However, it is indeed true that similar position is not available to a Junior Judge for he has to confine his jurisdiction in respect of suits where the value does not exceed Rs. 25,000/-. Mr. Dessai indeed referred to some decisions to suggest as to how Order VII, Rule 10 of the Civil Procedure Code is attracted. The first in line is the decision of Benisham Mohanlal Khetan v. Mahadeo Tukaram, Borkar, . Indeed, the learned Single Judge
sitting at Nagpur Bench was confronted with the point whether a Civil Court by allowing an amendment which resulted in ousting its own jurisdiction can do so and secondly the course to be followed after the ouster of the jurisdiction. The learned Single Judge answered that under Order VI, Rule 17 of the Civil Procedure Code a Court can allow amendment even when it results in ousting its own jurisdiction and once the amendment allowed is carried out the proper course is to return the amended plaint to the plaintiff for presentation to the proper Court under Order VII, Rule 10 of the Civil Procedure Code.
13. While there can be no quarrel on the first proposition, Mr. Noronha is right in pointing out that the course followed in authority supra cannot be embarked upon in the present case under transfer and I will presently point out what that is. In the authority supra cited the amendment carried out ousted the jurisdiction of the Small Cause Court Nagpur. Once the amendment was allowed the Small Cause Court itself lost its jurisdiction and the matter had to go on the basis of that amendment before the Rent Controller for Rent Controller had the jurisdiction to grant the relief claimed. It is in that view of the matter that the learned Single Judge held that once the ouster of Small Cause Court was complete the only proper course was to return the plaint for presentation to the proper Court. Mr. Dessai is right in pointing out that almost on identical facts the learned Single Judge of the Kerala High Court took similar view in Suri Films v. S.N. Govinda Prabhu and Brother, , that once the
amendment carried out ousts the jurisdiction of the Court, the Court should return the plaint for presentation to the proper Court. Mr. Dessai relied upon a decision in Vijay Kumar Sachdev and another v. Baldev Raj Bhutani and another, . This is
again a judgment delivered by the learned Single Judge of Delhi High Court where an order was made dismissing the suit for want of pecuniary jurisdiction. When the order was assailed the learned Single Judge held that it was not proper under the law to have dismissed the suit but that Court ought to have returned the plaint under Order VII, Rule 10 of C.P.C. for presentation to the proper Court in accordance with law. Mr. Dessai would have been right that these authorities would have assisted him in the view that the canvassed provided the suit had to be presented to some other Court. Inasmuch as it is not so there is no question of attracting Order VII, Rule 10 of the Civil Procedure Code.
14. I have already pointed out that in Panaji the Court is presided over by a Senior Judge and it is known as the Court of Civil Judge, Senior Division and even when Junior Judges are brought into that Court for the purpose of disposal of civil work to lighten the burden of the Senior Judge, it is not possible to hold that there is a Court of the Junior Judge within the Court of Civil Judge, Senior Division. The result is that all that happens is that Junior Civil Judge is made to dispose of certain work, naturally within his pecuniary jurisdiction, and, that too, by the orders or directions given by the concerned District Judge. A fortiorari therefore when a matter goes before the Civil Judge initially having pecuniary jurisdiction of less than Rs. 25,000/- and if as a result of amendment there is an ouster of the jurisdiction of the Junior Judge there is no question of Junior Judge returning the plaint under Order VII, Rule 10 of the Civil Procedure Code for presentation to the Court of Civil Judge, Senior Division and in my view, therefore, in such an eventuality the provisions of Rule 233 of the Civil Manual must come into play. I have already spoken of the genesis of this Rule as to why the District Judge is administratively required to make the order upon request of the Junior judge and I do not think it necessary to dilate on this issue any further.
15. Mr. Noronha is again right in pointing out to some observations of the learned Single judge of this Court with reference to Rule 233 of the Civil Manual in the decision of Jawahar Gendalal Banode v. Somajibhai Karsanji Patel, reported in 1986 Maharashtra Law Journal
480. I have already earlier pointed out that this Rule 233 has been erroneously quoted as Rule 189 whereupon considering some provisions including provisions of section 24 of the Bombay Civil Courts Act, the learned Single Judge approved that the transfer can be effected under that Rule by the District Judge, though however, he mentioned that the source of power is section 24 of the Civil Procedure Code. Section 24 of the Bombay Civil Courts Act is otherwise identical with section 20 of the Goa, Daman and Diu Civil Courts Act, 1965.
16. As a result of the discussion what emerges is that while Mr. Dessai is right in contending that this application is not maintainable under section 24 of the Civil Procedure Code. Mr. Dessai is not correct that the plaint is required to be returned to the original plaintiff under Order VII, Rule 10 of the Civil Procedure Code. The proper procedure is for the Junior Judge to make a reference to the District Judge and the learned District Judge shall make an administrative Order under Rule 233 of the Civil Manual and transfer the suit to the Senior Judge.
This Application accordingly is disposed of.
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