The word “suit” appearing in Section 28B will have to be thus
construed broadly and comprehensively to include any proceeding in a
Court of Justice by which an individual pursues that remedy which the
law affords. It is in the context it can be said to be a generic term and
applying to the different stages so as to make it a pursuit or prosecution of
some claim.
34 To my mind, from reading of the provision it may appear that
only suits have to be transferred, but this provision cannot be read in
isolation and will have to be read with all sections appearing in PartVI
of
the Act. If PartVI
deals with civil judges, number of subordinate civil
courts, appointments, power to fix local limits of jurisdiction and situation
of subordinate courts and then sets out classes of civil judges together
with their jurisdiction and which jurisdiction extends to all original suits
and proceedings of a civil nature, then, to my mind Section 28B cannot be
read as suggested by the Applicant and as stand alone. It will have to be
read harmoniously and together with other sections so as to make a
consistent enactment of the whole. The principles of harmonious
interpretation will have to be adopted or else what would happen is that a
Civil Judge Junior Division, whose jurisdiction extends to all original suits
and proceedings of a civil nature, will in terms of the amended provision
Section 28B deal with only suits in which the amount or value of the
subject matter is less than Rs.5 lacs and then the execution proceedings
will remain on the file of the Civil Judge Senior Division. Further, by
virtue of such reading, what would happen is that the suit in which the
amount or value of the subject matter does not exceed Rs.5 lacs, is
decreed by the Civil Judge Junior Division in terms of powers conferred
and his jurisdiction, for execution and enforcement of such Decree the
litigant will have to approach the Court of Civil Judge Senior Division and
which may not be within the close vicinity. Therefore, if the litigant or
consumer of justice is the focal point and it is his interest which will have
to be placed in the forefront, then, having such dual jurisdiction and
powers would surely inconvenience him. The litigants will suffer hardship
and will have to face unnecessary and avoidable problems resulting in
delay.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
MISCELLANEOUS CIVIL APPLICATION NO.38 OF 2012
WITH
CIVIL APPLICATION NO.56 OF 2012
Mr.Gajanfar Rafik Ahmed Mirajkar, V Mrs.Jakiyabegum SiddiAbdur Rehman Foujdar,
CORAM : S.C.DHARMADHIKARI, J.
Pronounced on : 06th February, 2013.
Citation;2014(3) ALLMR244 Bom
1 The Applicant (Gajanfar Rafik Ahmed Mirajkar) is the
Plaintiff in Special Civil Suit No.3/1983 decided on 23.08.2006.
2 He filed an application being Miscellaneous Application
No.63/2009 invoking the Order XX Rule 12 of the Code of Civil
Procedure, 1908 seeking an inquiry for determination of mesne profit. He
relies upon the Decree passed in the suit and sets out that the property is
valuable and has tremendous market potential. He, therefore, prays by
this application that the Commissioner be appointed to take accounts of
income received by the original Defendant Nos.1 to 4 from Supari,
Banana and Coconut trees standing on the land admeasuring 35 ¾
Gunthas of Survey No.67, Hissa No.1, City Survey No.1693. He also prays
that while deciding the quantum of mesne profit, all earnings from the
sale of coconut, banana etc. be taken into account. This application has
been filed on 03.08.2009 in the Court of Civil Judge Senior Division,
Alibag at Alibag.
3 Equally, what has been filed by the present Applicant is
execution proceedings being Special Darkhast No.48/2009 seeking
execution and enforcement of the Decree passed in Special Civil Suit
No.3/1983.
4 Then, what transpires is that there is another suit filed by the
original Judgment Debtor Nos.1 to 3 against the Applicant before me and
others, in the Court of Civil Judge, Senior Division, Alibag being Special
Civil Suit No.204/2011 for partition.
5 Thus, in all there are three proceedings, namely, one Special
Civil Suit No.204/2011, Special Darkhast No.48/2009 and Miscellaneous
Application No.63/2009. All of which are pending in the Court of Civil
Judge Senior Division, Alibag.
6 However, reliance was placed upon a circular issued by the
District Court with regard to enhancement in the jurisdiction of the Civil
Courts and particularly the Courts of Civil Judge Junior Division and that
it was prayed that any suits in which the Plaintiff is seeking to recover a
sum of less than Rs.5 lacs, such suits have to be tried as Regular Civil
Suits. If that circular is taken into account, the Special Civil Suit
No.204/2011 will have to be transferred to the Court of Civil Judge
Junior Division, Murud. If that suit or the claim therein is arising out of
and is related to Special Darkhast No.48/2009 and Miscellaneous
Application No.63/2009, then, if the suit and these proceedings are before
the distinct courts, there is likelihood of conflicting judgments and orders.
That would be doing injustice to the litigants. For all these reasons, it was
prayed that the suit should be transferred to another Court and should be
tried and decided along with two applications which are pending before
the Court of Civil Judge Senior Division, Alibag. Such an application was
made on 12.01.2012. On such application, an order was passed that in
view of the circular issued by the District Court, earlier execution
proceedings, Miscellaneous Proceedings and the suit, are all of valuation
of less than Rs.5 lacs, therefore, they are required to be transferred in the
Court of Civil Judge Junior Division, Murud. Hence, the Application is
rejected by order dated 12.01.2012.
7 It appears that on obtaining knowledge of such direction and
order, the present Applicant also made an application and urged that the
order dated 12.01.2012 be set aside. He relied on amendment to the
Bombay Civil Courts Act, 1869 made by the Maharashtra Act No.XLIV of
2011 and styled as the Bombay Civil Courts (Amendment) Act, 2011. He
relied upon the wording thereof and submitted that the wording of
amended provision would indicate that only the suits are liable to be
transferred. The Special Darkhast No.48/2009 and Miscellaneous
Application No.63/2009 are not suits and therefore, they cannot be
transferred. The execution proceedings cannot be continued by the Court
at Murud as that would be barred by Sections 37 to 39 of the Code of
Civil Procedure, 1908 as well.
8 The Applicant, therefore, made the following prayers in the
said application:“(
a) The order dated 12.01.2012 of transferring the Spl.
Darkhast No.48/2009 and M.A. 63/2009 to Murud
Court be set aside.
(b) Pending the hearing and final disposal of this
application, the sending of records and proceedings of
the said Darkhast and said Misc. application be delayed.
(c) Any other relief as this Hon'ble Court deem fit and
proper be granted.”
9 This Application was made on 16.01.2012. On this
application, the following order has been made on 24.01.2012 by the
learned Civil Judge Senior Division, Alibag::::
“Perused the say and heard. It is submitted by the
applicant the word suit excludes execution proceeding
and therefore the provision of Bombay Civil Courts
(Amendment) Act are not applicable to the present
execution proceeding.
This Court has passed order dated 12.01.2012
vide Exhibit22
thereby transferring the suit as well as
execution proceeding and Misc. application having value
not exceeding Rs.5 lacs.
The ratio laid down in AIR 1966 SC 1888 is not
helpful in the present circumstances. Hence application
stands rejected.
The record and proceeding in SCS 204/11, S.D.
No.48/2009 and M.A. 63/2009 stands transferred to
the court of CJJD Murud, having competent to try and
dispose of said proceedings.”
10 It is aggrieved by this order and direction that this
Miscellaneous Civil Application No.38/2009 has been filed and the prayer
is that the Civil Judge Senior Division, Alibag alone should be conferred
with powers to decide all three matters and by setting aside the orders
passed on 12.01.2012 and 24.01.2012. These reliefs be granted by taking
recourse to Section 24 and Section 151 of the Code of Civil Procedure,
1908.
11 It is on this application of 05.03.2012 that I have heard the
Applicant, who is appearing in person.
12 He has also filed an affidavit on 06.06.2012 praying that to
meets the ends of justice the Miscellaneous Application and the
proceedings be withdrawn from the Court at Murud and be transferred to
the Court of Senior Division or Junior Division at Alibag.
13 The Applicant has also filed very bulky record consisting of
pleadings in the suit, decree, etc.. He has also filed a Civil Application and
prayer therein is identical to that of the main application.
14 To appreciate the request of the Applicant, it is necessary to
refer to the Bombay Civil Courts Act, 1869. It is an Act to consolidate and
amend the law relating to the District and other subordinate Civil Courts
in the Presidency of Bombay. PartII
of the Act specifies what is district
and sadar station.
15 PartIII
is entitled “District Courts”. It contains Sections, 5, 6
and 7 which provide for District Judges, situation of District Courts and
original jurisdiction of District Courts. It also contains provisions relating
to the appellate jurisdiction of District Courts and the control and
inspection of subordinate courts.
16 Section 9 thereof gives a power of general control over all
Civil Courts and their establishments within the District and that power is
conferred in the District Judge. Section 10 provides for writs and orders
which have to be obeyed by the District Judge. Section 11 provides for
seal of the District Judge.
17 PartIV
contains the provisions pertaining to the appointment
and powers of the Joint District Judges or Additional District Judges and
that aspect is elaborated further in PartV.
18 Then comes crucial provision contained in PartVI.
Section 21
therein provides for number of subordinate civil courts. Section 22 deals
with appointment of civil judges. Section 22A confers power to fix local
limits of jurisdiction of civil judges and Section 23 deals with situation of
subordinate courts. Then comes Section 24 which reads as under:“
24. Classes of Civil Judges:The
Civil Judges shall be of two
classes.
Jurisdiction of Civil Judge (Senior Division):The
jurisdiction of a Civil Judge (Senior Division) extends to
all original suits and proceedings of a civil nature.
Jurisdiction of a Civil Judge (Junior Division):The
jurisdiction of a Civil Judge (Junior Division) extends to
all original suits and proceedings of a civil nature where
in the subject matter does not exceed its amount or
value Five Lakh rupees:
Provided that the State Government may increase the
limit of Five Lakh rupees to seven lakh fifty thousand
rupees in the case of any Civil Judge (Junior Division)
of not less than ten years' standing and specially
recommended in this behalf by the High Court. A Civil
Judge so empowered shall continue to exercise this
power so long and as often as he may fill the office of a
Civil Judge (Junior Division), without reference to the
District in which he may be employed, unless the powers
are withdrawn by the State Government.”
19 A bare perusal thereof would show that the jurisdiction of the
Civil Judge Senior Division extends to all original suits and proceedings of
a civil nature whereas that of Civil Judge Junior Division extends to all
original suits and proceedings of a civil nature wherein the subject matter
does not exceed the amount or value of Rs.5 lacs. Proviso thereto makes it
clear that the State Government may increase this limit of Rs.5 lacs to
Rs.7.50 lacs in the case of any Civil Judge Junior Division of not less than
ten years' standing and specially recommended in this behalf by the High
Court.
20 Then Section 25 enacts special jurisdiction of Civil Judge
Senior Divisions. Section 26 provides for appeals against decisions in all
suits where the amount or value of the subject matter exceeds Rs.10 lacs
and that jurisdiction is conferred in the High Court. Section 27 confers
appellate powers and therefore, the appellate jurisdiction of Civil Judge
Senior Division or the Judge of Court of Small Causes is elaborated. Then
comes Section 28 which gives power to invest the Civil Judges with small
cause powers. Then comes Sections 28A and 28B, which really fall for
consideration and they read as under:“
28A. Power to invest Civil Judges with jurisdiction under
certain Acts X of 1865, V of 1881, V of 1908::::
(1) The High Court may by general or special order
invest any Civil Judge within such local limits and
subject to such pecuniary limitation as may be
prescribed in such order, with all or any of the powers of
a District Judge or a District Court as the case may be,
under the Indian Succession Act, 1865, the Probate and
Administration Act, 1881 or paragraph 3 of Schedule III
to the Code of Civil Procedure, 1908.
(2) Every order made by a Civil Judge by virtue of the
powers conferred upon him under subsection
(1) shall
be subject to appeal to the High Court or the District
Court according as the amount or value of the subjectmatter
exceeds or does not exceed ten lakh rupees.
(3) Every order of the District Judge passed an appeal
under subsection
(2) from the order of a Civil Judge
shall be subject to an appeal to the High Court under
the rules, contained in the Code of Civil Procedure
applicable to appeals from appellate decrees.
28B. Transfer of pending suits and appeals.:On
the
commencement of the Bombay Civil Courts
(Amendment) Act, 2011:
(1) all suits in which the amount or value of the
subject matter does not exceed rupees five lakhs and
which are pending before the Court of Civil Judge
Senior Division, immediately, before such
commencement, shall stand transferred to the concerned
Court of Civil Judge Junior Division and such court may
deal with such suit from the stage which was reached
before such transfer or from any earlier stage or denovo
as such court may deem fit;
(2) all appeals in which the amount or value of the
subject matter does not exceed rupees ten lakhs and
pending before the High Court immediately before such
commencement, shall stand transferred to the concerned
District Court and such District Court may deal with
such appeal from the stage which was reached before
such transfer or from any earlier stage or denovo
as
such court may deem fit:
Provided that, this section shall not apply to any suits
and appeals which are pending before the Court of Civil
Judge Senior Division or as the case may be, before the
High Court, which are statutorily provided under the
relevant enactment before such court.”
29 The contention of the Applicant is that on commencement of
the Bombay Civil Courts (Amendment) Act, 2011, it is only the suits
where the amount or value of the subject matter does not exceed Rs.5 lacs
and which are pending before the Civil Judge Senior Division immediately
before commencement of the Amendment Act, shall be transferred to the
concerned courts of Civil Judge Junior Division and such courts may deal
with such suits from the stage which was reached before such transfer or
from any earlier stage or denovo as such courts may deem fit. The
argument is that the proceedings other than suits cannot be, therefore,
transferred in the light of this specific provision. It is that controversy
which is being dealt with by me and therefore, other part or sections of
this Act need not be referred to.
30 I am unable to accept the contentions of the Applicant
appearing in person. The statement of objects and reasons of the
Amendment Act, 2011 reads as under:“
Under the existing provisions of the Bombay Civil
Courts Act, 1869 (Act No.XIV of 1869), the pecuniary
appellate jurisdiction of the District Court with regard
to the amount or value of the subject matter for the
purpose of appeal is upto two lakh rupees and of the
High Court exceeding two lakh rupees. The pecuniary
jurisdiction of the Courts of the Civil Judge (Junior
Division), with regard to the amount or value of the
subject matter is upto rupees one lakh.
2. With the passage of time there is a tremendous
appreciation of the value of the properties situated in
the cities and moffusil areas since the year 1999, when
these pecuniary jurisdictions were lastly enhanced and
considering the commitment of the State to bring justice
at the doorstep of the common man, the State
Government considers it expedient to enhance the said
limits of pecuniary jurisdiction from rupees two lakhs to
rupees ten lakhs and from rupees one lakh to rupees five
lakhs and for the purpose to amend sections 16, 24, 26
and 28A of the Bombay Civil Courts Act, 1869, suitably.
This will facilitate the filing of suits wherein the amount
or value of the subject matter does not exceed rupees
five lakhs in the nearest Taluka courts. The appeals
arising from the decrees passed in such suits and the
appeals arising from the decrees passes by the Civil
Judge (Senior Division), the amount or value of the
subject matter of which does not exceed rupees ten lakhs
will be entertained by the District Judges. Thus, only the
appeals arising from the decree, the amount or value of
the subject matter of which exceeds rupees ten lakhs will
be entertained by the High Court. This will save the
expenses and avoid inconvenience to the litigants.
3. The State Government also, considers it expedient to
transfer, by inserting new section 28B in the Bombay
Civil Courts Act, 1869, all such suits in which the
amount or value of the subject matter does not exceed
rupees five lakhs and which are pending before the Civil
Judge (Senior Division) to the Court of Civil Judge
(Junior Division), as well as all appeals in which the
amount or value of the subject matter does not exceed
rupees ten lakhs and pending before the High Court to
the concerned District Court.
4. Hence, this Bill.”
31 A bare perusal of the statement of objects and reasons would
indicate that the enhancement of jurisdiction is with an avowed object. It
is with some purpose, namely, commitment of the State to bring justice at
the doorstep of the common man. Therefore, interpretation which will
fulfill this object and purpose must be placed on the provision and by
reading the provision in isolation so also the word “suit”, without
reference to the context and other sections will result in an absurdity and
anomaly by which there will be inconvenience, confusion and chaos. In
such circumstances, to my mind, the real guide would be as summed up
by the Honourable Supreme Court that a bare mechanical interpretation
of the words and application of a legislative intent devoid of concept of
purpose will reduce most of the remedial and beneficent legislation to
futility. As the Honourable Mr. Justice V.R.Krishna Iyer (as His Lordship
then) in AIR 1977 SC 965 (The Chairman, Board of Mining Examination
and Chief Inspector of Mines and another v/s Ramjee) held thus:
“5. …..... Law is meant to serve the living and does not beat
its abstract wings in the jural void. Its functional
fulfilment as social engineering depends on its sensitized
response to situation, subjectmatter
and the complex of
realities which require ordered control. A holistic
understanding is simple justice to the meaning of all
legislations. Fragmentary grasp of rules can misfire or
even backfire as in this case. …......”
32 Equally, the following principles in AIR 2008 SC 876 (New
India Assurance Co. Ltd. v/s Nusli Neville Wadia & another) would guide
me:“
49. The literal interpretation of the statute, if resorted to,
would also lead to the situation that it would not be
necessary for the landlords in any situation to plead in
regard to its need for the public premises. It could just
terminate the tenancy without specifying any cause for
eviction.
50. ….............. With a view to read the provisions of the Act
in a proper and effective manner, we are of the opinion
that literal interpretation, if given, may give rise to an
anomaly or absurdity which must be avoided. So as to
enable a superior court to interpret a statute in a
reasonable manner, the court must place itself in the
chair of a reasonable legislator/ author. So done, the
rules of purposive construction have to be resorted to
which would require the construction of the Act in such
a manner so as to see that the object of the Act fulfilled;
which in turn would lead the beneficiary under the
statutory scheme to fulfill its constitutional obligations
as held by the court inter alia in Ashoka Marketing Ltd.
(supra).
51. Barak in his exhaustive work on 'Purposive
Construction' explains various meanings attributed to
the term “purpose”. It would be in the fitness of
discussion to refer to Purposive Construction in Barak's
words:
“Hart and Sachs also appear to treat “purpose” as
a subjective concept. I say “appear” because, although
Hart and Sachs claim that the interpreter should
imagine himself or herself in the legislator's shoes, they
introduce two elements of objectivity: First, the
interpreter should assume that the legislature is
composed of reasonable people seeking to achieve
reasonable goals in a reasonable manner; and second,
the interpreter should accept the nonrebuttable
presumption that members of the legislative body sought
to fulfill their constitutional duties in good faith. This
formulation allows the interpreter to inquire not into
the subjective intent of the author, but rather the intent
the author would have had, had he or she acted
reasonably.”
(Aharon Barak, Purposive Interpretation in Law,
(2007) at pg. 87)
52. In Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli
and Ors., (2007) 6 SCC 81, this Court held:
“The Parliament moreover is presumed to have
enacted a reasonable statute (see Breyer, Stephen
(2005): Active Liberty: Interpreting Our Democratic
Constitution, Knopf (Chapter on Statutory
Interpretation pg.
99 for "Reasonable Legislator
Presumption" ).”
33 The word “suit” appearing in Section 28B will have to be thus
construed broadly and comprehensively to include any proceeding in a
Court of Justice by which an individual pursues that remedy which the
law affords. It is in the context it can be said to be a generic term and
applying to the different stages so as to make it a pursuit or prosecution of
some claim.
34 To my mind, from reading of the provision it may appear that
only suits have to be transferred, but this provision cannot be read in
isolation and will have to be read with all sections appearing in PartVI
of
the Act. If PartVI
deals with civil judges, number of subordinate civil
courts, appointments, power to fix local limits of jurisdiction and situation
of subordinate courts and then sets out classes of civil judges together
with their jurisdiction and which jurisdiction extends to all original suits
and proceedings of a civil nature, then, to my mind Section 28B cannot be
read as suggested by the Applicant and as stand alone. It will have to be
read harmoniously and together with other sections so as to make a
consistent enactment of the whole. The principles of harmonious
interpretation will have to be adopted or else what would happen is that a
Civil Judge Junior Division, whose jurisdiction extends to all original suits
and proceedings of a civil nature, will in terms of the amended provision
Section 28B deal with only suits in which the amount or value of the
subject matter is less than Rs.5 lacs and then the execution proceedings
will remain on the file of the Civil Judge Senior Division. Further, by
virtue of such reading, what would happen is that the suit in which the
amount or value of the subject matter does not exceed Rs.5 lacs, is
decreed by the Civil Judge Junior Division in terms of powers conferred
and his jurisdiction, for execution and enforcement of such Decree the
litigant will have to approach the Court of Civil Judge Senior Division and
which may not be within the close vicinity. Therefore, if the litigant or
consumer of justice is the focal point and it is his interest which will have
to be placed in the forefront, then, having such dual jurisdiction and
powers would surely inconvenience him. The litigants will suffer hardship
and will have to face unnecessary and avoidable problems resulting in
delay. Therefore, to my mind, the District Court as also the Civil Court in
question did not commit any error in arriving at the conclusion that the
main suit as also the connected Miscellaneous and Execution proceedings,
both have to be transferred to the Court of Civil Judge Junior Division,
Murud as it is competent to deal with and decide the same. The argument
based on reading of only Section 28B will not subserve
the object and
purpose of enhancing the jurisdiction of the Court of Civil Judge Junior
Division and investing it with power to decide original suits and
proceedings of a civil nature in which the amount or value of the subject
matter does not exceed Rs.5 lacs. That being the aim and object sought to
be achieved by the Amendment Act an interpretation which will advance
the same will have to be placed on the provision or else the very reason
for enhancing pecuniary limits and enacting Section 28B would be
defeated and frustrated.
35 To my mind, such a provision really is in furtherance of the
constitutional mandate of access to justice. If justice has to be
administered cheaply and firmly and to all sections and stratas of the
Society, then, a Court located near their place of residence or work and
competent to deal with their cases would be easily approachable and
accessible to them. Establishing such courts and not conferring them with
adequate and complete powers makes a mockery of the constitutional
goal of ensuring justice to all. It is with that end that this provision will
have to be interpreted broadly and in the light of the legislative intention
of doorstep justice. That has to be taken further and that is how I have
adopted the principle of harmonious interpretation and equally applied
the “mischief rule”.
36 As a result of the above discussion, I do not find any merit in
this Misc. Civil Application No.38/2012 and it is dismissed. No costs.
37 In view of disposal of the Misc. Civil Application No.38/2012,
the other Misc. Civil Application No.39/2012 and all Civil Applications
therein would not survive and they are also disposed of. No costs.
(S.C. Dharmadhikari, J)
Print Page
construed broadly and comprehensively to include any proceeding in a
Court of Justice by which an individual pursues that remedy which the
law affords. It is in the context it can be said to be a generic term and
applying to the different stages so as to make it a pursuit or prosecution of
some claim.
34 To my mind, from reading of the provision it may appear that
only suits have to be transferred, but this provision cannot be read in
isolation and will have to be read with all sections appearing in PartVI
of
the Act. If PartVI
deals with civil judges, number of subordinate civil
courts, appointments, power to fix local limits of jurisdiction and situation
of subordinate courts and then sets out classes of civil judges together
with their jurisdiction and which jurisdiction extends to all original suits
and proceedings of a civil nature, then, to my mind Section 28B cannot be
read as suggested by the Applicant and as stand alone. It will have to be
read harmoniously and together with other sections so as to make a
consistent enactment of the whole. The principles of harmonious
interpretation will have to be adopted or else what would happen is that a
Civil Judge Junior Division, whose jurisdiction extends to all original suits
and proceedings of a civil nature, will in terms of the amended provision
Section 28B deal with only suits in which the amount or value of the
subject matter is less than Rs.5 lacs and then the execution proceedings
will remain on the file of the Civil Judge Senior Division. Further, by
virtue of such reading, what would happen is that the suit in which the
amount or value of the subject matter does not exceed Rs.5 lacs, is
decreed by the Civil Judge Junior Division in terms of powers conferred
and his jurisdiction, for execution and enforcement of such Decree the
litigant will have to approach the Court of Civil Judge Senior Division and
which may not be within the close vicinity. Therefore, if the litigant or
consumer of justice is the focal point and it is his interest which will have
to be placed in the forefront, then, having such dual jurisdiction and
powers would surely inconvenience him. The litigants will suffer hardship
and will have to face unnecessary and avoidable problems resulting in
delay.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
MISCELLANEOUS CIVIL APPLICATION NO.38 OF 2012
WITH
CIVIL APPLICATION NO.56 OF 2012
Mr.Gajanfar Rafik Ahmed Mirajkar, V Mrs.Jakiyabegum SiddiAbdur Rehman Foujdar,
CORAM : S.C.DHARMADHIKARI, J.
Pronounced on : 06th February, 2013.
Citation;2014(3) ALLMR244 Bom
1 The Applicant (Gajanfar Rafik Ahmed Mirajkar) is the
Plaintiff in Special Civil Suit No.3/1983 decided on 23.08.2006.
2 He filed an application being Miscellaneous Application
No.63/2009 invoking the Order XX Rule 12 of the Code of Civil
Procedure, 1908 seeking an inquiry for determination of mesne profit. He
relies upon the Decree passed in the suit and sets out that the property is
valuable and has tremendous market potential. He, therefore, prays by
this application that the Commissioner be appointed to take accounts of
income received by the original Defendant Nos.1 to 4 from Supari,
Banana and Coconut trees standing on the land admeasuring 35 ¾
Gunthas of Survey No.67, Hissa No.1, City Survey No.1693. He also prays
that while deciding the quantum of mesne profit, all earnings from the
sale of coconut, banana etc. be taken into account. This application has
been filed on 03.08.2009 in the Court of Civil Judge Senior Division,
Alibag at Alibag.
3 Equally, what has been filed by the present Applicant is
execution proceedings being Special Darkhast No.48/2009 seeking
execution and enforcement of the Decree passed in Special Civil Suit
No.3/1983.
4 Then, what transpires is that there is another suit filed by the
original Judgment Debtor Nos.1 to 3 against the Applicant before me and
others, in the Court of Civil Judge, Senior Division, Alibag being Special
Civil Suit No.204/2011 for partition.
5 Thus, in all there are three proceedings, namely, one Special
Civil Suit No.204/2011, Special Darkhast No.48/2009 and Miscellaneous
Application No.63/2009. All of which are pending in the Court of Civil
Judge Senior Division, Alibag.
6 However, reliance was placed upon a circular issued by the
District Court with regard to enhancement in the jurisdiction of the Civil
Courts and particularly the Courts of Civil Judge Junior Division and that
it was prayed that any suits in which the Plaintiff is seeking to recover a
sum of less than Rs.5 lacs, such suits have to be tried as Regular Civil
Suits. If that circular is taken into account, the Special Civil Suit
No.204/2011 will have to be transferred to the Court of Civil Judge
Junior Division, Murud. If that suit or the claim therein is arising out of
and is related to Special Darkhast No.48/2009 and Miscellaneous
Application No.63/2009, then, if the suit and these proceedings are before
the distinct courts, there is likelihood of conflicting judgments and orders.
That would be doing injustice to the litigants. For all these reasons, it was
prayed that the suit should be transferred to another Court and should be
tried and decided along with two applications which are pending before
the Court of Civil Judge Senior Division, Alibag. Such an application was
made on 12.01.2012. On such application, an order was passed that in
view of the circular issued by the District Court, earlier execution
proceedings, Miscellaneous Proceedings and the suit, are all of valuation
of less than Rs.5 lacs, therefore, they are required to be transferred in the
Court of Civil Judge Junior Division, Murud. Hence, the Application is
rejected by order dated 12.01.2012.
7 It appears that on obtaining knowledge of such direction and
order, the present Applicant also made an application and urged that the
order dated 12.01.2012 be set aside. He relied on amendment to the
Bombay Civil Courts Act, 1869 made by the Maharashtra Act No.XLIV of
2011 and styled as the Bombay Civil Courts (Amendment) Act, 2011. He
relied upon the wording thereof and submitted that the wording of
amended provision would indicate that only the suits are liable to be
transferred. The Special Darkhast No.48/2009 and Miscellaneous
Application No.63/2009 are not suits and therefore, they cannot be
transferred. The execution proceedings cannot be continued by the Court
at Murud as that would be barred by Sections 37 to 39 of the Code of
Civil Procedure, 1908 as well.
8 The Applicant, therefore, made the following prayers in the
said application:“(
a) The order dated 12.01.2012 of transferring the Spl.
Darkhast No.48/2009 and M.A. 63/2009 to Murud
Court be set aside.
(b) Pending the hearing and final disposal of this
application, the sending of records and proceedings of
the said Darkhast and said Misc. application be delayed.
(c) Any other relief as this Hon'ble Court deem fit and
proper be granted.”
9 This Application was made on 16.01.2012. On this
application, the following order has been made on 24.01.2012 by the
learned Civil Judge Senior Division, Alibag::::
“Perused the say and heard. It is submitted by the
applicant the word suit excludes execution proceeding
and therefore the provision of Bombay Civil Courts
(Amendment) Act are not applicable to the present
execution proceeding.
This Court has passed order dated 12.01.2012
vide Exhibit22
thereby transferring the suit as well as
execution proceeding and Misc. application having value
not exceeding Rs.5 lacs.
The ratio laid down in AIR 1966 SC 1888 is not
helpful in the present circumstances. Hence application
stands rejected.
The record and proceeding in SCS 204/11, S.D.
No.48/2009 and M.A. 63/2009 stands transferred to
the court of CJJD Murud, having competent to try and
dispose of said proceedings.”
10 It is aggrieved by this order and direction that this
Miscellaneous Civil Application No.38/2009 has been filed and the prayer
is that the Civil Judge Senior Division, Alibag alone should be conferred
with powers to decide all three matters and by setting aside the orders
passed on 12.01.2012 and 24.01.2012. These reliefs be granted by taking
recourse to Section 24 and Section 151 of the Code of Civil Procedure,
1908.
11 It is on this application of 05.03.2012 that I have heard the
Applicant, who is appearing in person.
12 He has also filed an affidavit on 06.06.2012 praying that to
meets the ends of justice the Miscellaneous Application and the
proceedings be withdrawn from the Court at Murud and be transferred to
the Court of Senior Division or Junior Division at Alibag.
13 The Applicant has also filed very bulky record consisting of
pleadings in the suit, decree, etc.. He has also filed a Civil Application and
prayer therein is identical to that of the main application.
14 To appreciate the request of the Applicant, it is necessary to
refer to the Bombay Civil Courts Act, 1869. It is an Act to consolidate and
amend the law relating to the District and other subordinate Civil Courts
in the Presidency of Bombay. PartII
of the Act specifies what is district
and sadar station.
15 PartIII
is entitled “District Courts”. It contains Sections, 5, 6
and 7 which provide for District Judges, situation of District Courts and
original jurisdiction of District Courts. It also contains provisions relating
to the appellate jurisdiction of District Courts and the control and
inspection of subordinate courts.
16 Section 9 thereof gives a power of general control over all
Civil Courts and their establishments within the District and that power is
conferred in the District Judge. Section 10 provides for writs and orders
which have to be obeyed by the District Judge. Section 11 provides for
seal of the District Judge.
17 PartIV
contains the provisions pertaining to the appointment
and powers of the Joint District Judges or Additional District Judges and
that aspect is elaborated further in PartV.
18 Then comes crucial provision contained in PartVI.
Section 21
therein provides for number of subordinate civil courts. Section 22 deals
with appointment of civil judges. Section 22A confers power to fix local
limits of jurisdiction of civil judges and Section 23 deals with situation of
subordinate courts. Then comes Section 24 which reads as under:“
24. Classes of Civil Judges:The
Civil Judges shall be of two
classes.
Jurisdiction of Civil Judge (Senior Division):The
jurisdiction of a Civil Judge (Senior Division) extends to
all original suits and proceedings of a civil nature.
Jurisdiction of a Civil Judge (Junior Division):The
jurisdiction of a Civil Judge (Junior Division) extends to
all original suits and proceedings of a civil nature where
in the subject matter does not exceed its amount or
value Five Lakh rupees:
Provided that the State Government may increase the
limit of Five Lakh rupees to seven lakh fifty thousand
rupees in the case of any Civil Judge (Junior Division)
of not less than ten years' standing and specially
recommended in this behalf by the High Court. A Civil
Judge so empowered shall continue to exercise this
power so long and as often as he may fill the office of a
Civil Judge (Junior Division), without reference to the
District in which he may be employed, unless the powers
are withdrawn by the State Government.”
19 A bare perusal thereof would show that the jurisdiction of the
Civil Judge Senior Division extends to all original suits and proceedings of
a civil nature whereas that of Civil Judge Junior Division extends to all
original suits and proceedings of a civil nature wherein the subject matter
does not exceed the amount or value of Rs.5 lacs. Proviso thereto makes it
clear that the State Government may increase this limit of Rs.5 lacs to
Rs.7.50 lacs in the case of any Civil Judge Junior Division of not less than
ten years' standing and specially recommended in this behalf by the High
Court.
20 Then Section 25 enacts special jurisdiction of Civil Judge
Senior Divisions. Section 26 provides for appeals against decisions in all
suits where the amount or value of the subject matter exceeds Rs.10 lacs
and that jurisdiction is conferred in the High Court. Section 27 confers
appellate powers and therefore, the appellate jurisdiction of Civil Judge
Senior Division or the Judge of Court of Small Causes is elaborated. Then
comes Section 28 which gives power to invest the Civil Judges with small
cause powers. Then comes Sections 28A and 28B, which really fall for
consideration and they read as under:“
28A. Power to invest Civil Judges with jurisdiction under
certain Acts X of 1865, V of 1881, V of 1908::::
(1) The High Court may by general or special order
invest any Civil Judge within such local limits and
subject to such pecuniary limitation as may be
prescribed in such order, with all or any of the powers of
a District Judge or a District Court as the case may be,
under the Indian Succession Act, 1865, the Probate and
Administration Act, 1881 or paragraph 3 of Schedule III
to the Code of Civil Procedure, 1908.
(2) Every order made by a Civil Judge by virtue of the
powers conferred upon him under subsection
(1) shall
be subject to appeal to the High Court or the District
Court according as the amount or value of the subjectmatter
exceeds or does not exceed ten lakh rupees.
(3) Every order of the District Judge passed an appeal
under subsection
(2) from the order of a Civil Judge
shall be subject to an appeal to the High Court under
the rules, contained in the Code of Civil Procedure
applicable to appeals from appellate decrees.
28B. Transfer of pending suits and appeals.:On
the
commencement of the Bombay Civil Courts
(Amendment) Act, 2011:
(1) all suits in which the amount or value of the
subject matter does not exceed rupees five lakhs and
which are pending before the Court of Civil Judge
Senior Division, immediately, before such
commencement, shall stand transferred to the concerned
Court of Civil Judge Junior Division and such court may
deal with such suit from the stage which was reached
before such transfer or from any earlier stage or denovo
as such court may deem fit;
(2) all appeals in which the amount or value of the
subject matter does not exceed rupees ten lakhs and
pending before the High Court immediately before such
commencement, shall stand transferred to the concerned
District Court and such District Court may deal with
such appeal from the stage which was reached before
such transfer or from any earlier stage or denovo
as
such court may deem fit:
Provided that, this section shall not apply to any suits
and appeals which are pending before the Court of Civil
Judge Senior Division or as the case may be, before the
High Court, which are statutorily provided under the
relevant enactment before such court.”
29 The contention of the Applicant is that on commencement of
the Bombay Civil Courts (Amendment) Act, 2011, it is only the suits
where the amount or value of the subject matter does not exceed Rs.5 lacs
and which are pending before the Civil Judge Senior Division immediately
before commencement of the Amendment Act, shall be transferred to the
concerned courts of Civil Judge Junior Division and such courts may deal
with such suits from the stage which was reached before such transfer or
from any earlier stage or denovo as such courts may deem fit. The
argument is that the proceedings other than suits cannot be, therefore,
transferred in the light of this specific provision. It is that controversy
which is being dealt with by me and therefore, other part or sections of
this Act need not be referred to.
30 I am unable to accept the contentions of the Applicant
appearing in person. The statement of objects and reasons of the
Amendment Act, 2011 reads as under:“
Under the existing provisions of the Bombay Civil
Courts Act, 1869 (Act No.XIV of 1869), the pecuniary
appellate jurisdiction of the District Court with regard
to the amount or value of the subject matter for the
purpose of appeal is upto two lakh rupees and of the
High Court exceeding two lakh rupees. The pecuniary
jurisdiction of the Courts of the Civil Judge (Junior
Division), with regard to the amount or value of the
subject matter is upto rupees one lakh.
2. With the passage of time there is a tremendous
appreciation of the value of the properties situated in
the cities and moffusil areas since the year 1999, when
these pecuniary jurisdictions were lastly enhanced and
considering the commitment of the State to bring justice
at the doorstep of the common man, the State
Government considers it expedient to enhance the said
limits of pecuniary jurisdiction from rupees two lakhs to
rupees ten lakhs and from rupees one lakh to rupees five
lakhs and for the purpose to amend sections 16, 24, 26
and 28A of the Bombay Civil Courts Act, 1869, suitably.
This will facilitate the filing of suits wherein the amount
or value of the subject matter does not exceed rupees
five lakhs in the nearest Taluka courts. The appeals
arising from the decrees passed in such suits and the
appeals arising from the decrees passes by the Civil
Judge (Senior Division), the amount or value of the
subject matter of which does not exceed rupees ten lakhs
will be entertained by the District Judges. Thus, only the
appeals arising from the decree, the amount or value of
the subject matter of which exceeds rupees ten lakhs will
be entertained by the High Court. This will save the
expenses and avoid inconvenience to the litigants.
3. The State Government also, considers it expedient to
transfer, by inserting new section 28B in the Bombay
Civil Courts Act, 1869, all such suits in which the
amount or value of the subject matter does not exceed
rupees five lakhs and which are pending before the Civil
Judge (Senior Division) to the Court of Civil Judge
(Junior Division), as well as all appeals in which the
amount or value of the subject matter does not exceed
rupees ten lakhs and pending before the High Court to
the concerned District Court.
4. Hence, this Bill.”
31 A bare perusal of the statement of objects and reasons would
indicate that the enhancement of jurisdiction is with an avowed object. It
is with some purpose, namely, commitment of the State to bring justice at
the doorstep of the common man. Therefore, interpretation which will
fulfill this object and purpose must be placed on the provision and by
reading the provision in isolation so also the word “suit”, without
reference to the context and other sections will result in an absurdity and
anomaly by which there will be inconvenience, confusion and chaos. In
such circumstances, to my mind, the real guide would be as summed up
by the Honourable Supreme Court that a bare mechanical interpretation
of the words and application of a legislative intent devoid of concept of
purpose will reduce most of the remedial and beneficent legislation to
futility. As the Honourable Mr. Justice V.R.Krishna Iyer (as His Lordship
then) in AIR 1977 SC 965 (The Chairman, Board of Mining Examination
and Chief Inspector of Mines and another v/s Ramjee) held thus:
“5. …..... Law is meant to serve the living and does not beat
its abstract wings in the jural void. Its functional
fulfilment as social engineering depends on its sensitized
response to situation, subjectmatter
and the complex of
realities which require ordered control. A holistic
understanding is simple justice to the meaning of all
legislations. Fragmentary grasp of rules can misfire or
even backfire as in this case. …......”
32 Equally, the following principles in AIR 2008 SC 876 (New
India Assurance Co. Ltd. v/s Nusli Neville Wadia & another) would guide
me:“
49. The literal interpretation of the statute, if resorted to,
would also lead to the situation that it would not be
necessary for the landlords in any situation to plead in
regard to its need for the public premises. It could just
terminate the tenancy without specifying any cause for
eviction.
50. ….............. With a view to read the provisions of the Act
in a proper and effective manner, we are of the opinion
that literal interpretation, if given, may give rise to an
anomaly or absurdity which must be avoided. So as to
enable a superior court to interpret a statute in a
reasonable manner, the court must place itself in the
chair of a reasonable legislator/ author. So done, the
rules of purposive construction have to be resorted to
which would require the construction of the Act in such
a manner so as to see that the object of the Act fulfilled;
which in turn would lead the beneficiary under the
statutory scheme to fulfill its constitutional obligations
as held by the court inter alia in Ashoka Marketing Ltd.
(supra).
51. Barak in his exhaustive work on 'Purposive
Construction' explains various meanings attributed to
the term “purpose”. It would be in the fitness of
discussion to refer to Purposive Construction in Barak's
words:
“Hart and Sachs also appear to treat “purpose” as
a subjective concept. I say “appear” because, although
Hart and Sachs claim that the interpreter should
imagine himself or herself in the legislator's shoes, they
introduce two elements of objectivity: First, the
interpreter should assume that the legislature is
composed of reasonable people seeking to achieve
reasonable goals in a reasonable manner; and second,
the interpreter should accept the nonrebuttable
presumption that members of the legislative body sought
to fulfill their constitutional duties in good faith. This
formulation allows the interpreter to inquire not into
the subjective intent of the author, but rather the intent
the author would have had, had he or she acted
reasonably.”
(Aharon Barak, Purposive Interpretation in Law,
(2007) at pg. 87)
52. In Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli
and Ors., (2007) 6 SCC 81, this Court held:
“The Parliament moreover is presumed to have
enacted a reasonable statute (see Breyer, Stephen
(2005): Active Liberty: Interpreting Our Democratic
Constitution, Knopf (Chapter on Statutory
Interpretation pg.
99 for "Reasonable Legislator
Presumption" ).”
33 The word “suit” appearing in Section 28B will have to be thus
construed broadly and comprehensively to include any proceeding in a
Court of Justice by which an individual pursues that remedy which the
law affords. It is in the context it can be said to be a generic term and
applying to the different stages so as to make it a pursuit or prosecution of
some claim.
34 To my mind, from reading of the provision it may appear that
only suits have to be transferred, but this provision cannot be read in
isolation and will have to be read with all sections appearing in PartVI
of
the Act. If PartVI
deals with civil judges, number of subordinate civil
courts, appointments, power to fix local limits of jurisdiction and situation
of subordinate courts and then sets out classes of civil judges together
with their jurisdiction and which jurisdiction extends to all original suits
and proceedings of a civil nature, then, to my mind Section 28B cannot be
read as suggested by the Applicant and as stand alone. It will have to be
read harmoniously and together with other sections so as to make a
consistent enactment of the whole. The principles of harmonious
interpretation will have to be adopted or else what would happen is that a
Civil Judge Junior Division, whose jurisdiction extends to all original suits
and proceedings of a civil nature, will in terms of the amended provision
Section 28B deal with only suits in which the amount or value of the
subject matter is less than Rs.5 lacs and then the execution proceedings
will remain on the file of the Civil Judge Senior Division. Further, by
virtue of such reading, what would happen is that the suit in which the
amount or value of the subject matter does not exceed Rs.5 lacs, is
decreed by the Civil Judge Junior Division in terms of powers conferred
and his jurisdiction, for execution and enforcement of such Decree the
litigant will have to approach the Court of Civil Judge Senior Division and
which may not be within the close vicinity. Therefore, if the litigant or
consumer of justice is the focal point and it is his interest which will have
to be placed in the forefront, then, having such dual jurisdiction and
powers would surely inconvenience him. The litigants will suffer hardship
and will have to face unnecessary and avoidable problems resulting in
delay. Therefore, to my mind, the District Court as also the Civil Court in
question did not commit any error in arriving at the conclusion that the
main suit as also the connected Miscellaneous and Execution proceedings,
both have to be transferred to the Court of Civil Judge Junior Division,
Murud as it is competent to deal with and decide the same. The argument
based on reading of only Section 28B will not subserve
the object and
purpose of enhancing the jurisdiction of the Court of Civil Judge Junior
Division and investing it with power to decide original suits and
proceedings of a civil nature in which the amount or value of the subject
matter does not exceed Rs.5 lacs. That being the aim and object sought to
be achieved by the Amendment Act an interpretation which will advance
the same will have to be placed on the provision or else the very reason
for enhancing pecuniary limits and enacting Section 28B would be
defeated and frustrated.
35 To my mind, such a provision really is in furtherance of the
constitutional mandate of access to justice. If justice has to be
administered cheaply and firmly and to all sections and stratas of the
Society, then, a Court located near their place of residence or work and
competent to deal with their cases would be easily approachable and
accessible to them. Establishing such courts and not conferring them with
adequate and complete powers makes a mockery of the constitutional
goal of ensuring justice to all. It is with that end that this provision will
have to be interpreted broadly and in the light of the legislative intention
of doorstep justice. That has to be taken further and that is how I have
adopted the principle of harmonious interpretation and equally applied
the “mischief rule”.
36 As a result of the above discussion, I do not find any merit in
this Misc. Civil Application No.38/2012 and it is dismissed. No costs.
37 In view of disposal of the Misc. Civil Application No.38/2012,
the other Misc. Civil Application No.39/2012 and all Civil Applications
therein would not survive and they are also disposed of. No costs.
(S.C. Dharmadhikari, J)
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