Judgment:
ORDER
S. Parvatha Rao, J.
1. The petitioners seek a writ of mandamus 'declaring the action of the Respondents 2 and 3 in not transferring the pending cases on the file of the Sub-Judge at Nuzvid to Sub-Court at Vijayawada even after G.O.Ms. No. 379 dated 22-9-1993 came into force, transferring the territorial jurisdiction of Ibrahimpatnam Mandalam to Vijayawada as illegal, arbitrary, unjust, highhanded, meaningless and without authority and consequently direct the respondents to implement the G.O. by transferring the pending cases pertaining to Ibrahimpatnam Mandalam to the Subordinate Judge at Vijayawada.........' etc.
2. Under G.O.Ms. No. 379, Home (Courts-A) Department, dated 8-9-1993 published in the Andhra Pradesh Gazette No. 372, dated 22-9-1993 made 'in exercise of the powers conferred by Section 15(a) of the Andhra Pradesh Civil Courts Act, 1972' the territorial jurisdictions of the Subordinate Judge's Courts at Nuzvid and Vijayawada were altered by transferring the jurisdiction over the territories of certain Revenue Mandals including Ibrahimpatnam Mandal from Subordinate Judge's Court at Nuzvid to Subordinate Judge's Court at Vijayawada. The petitioners belong to Ibrahimpatnam Mandal and some of their lands were acquired, in respect of which O.Ps. Under Section 18 of the Land Acquisition Act, 1894 were pending in the Subordinate Judge's Court at Nuzvid on the date when the said G.O.Ms. No. 379 came into force i.e., 22-9-1993 - the date of its publication. The petitioners contend that as and from 22-9-1993, in view of the fact that the G.O. took away the territorial jurisdiction of the Subordinate Judge's Court at Nuzvid and transferred the same to the Subordinate Judge's Court at Vijayawada, the Subordinate Judge's Court at Nuzvid would automatically lose its jurisdiction to continue to deal with their pending O.Ps., and that their O.Ps. would stand transferred to the Subordinate Judge's Court at Vijayawada. Alternatively, they contend that the 3rd Respondent ought to have transferred all their O.Ps. and other cases relatable to the territory of Ibrahimpatnam Mandal from the Subordinate Judge's Court Nuzvid to the Subordinate Judge's Court, Vijayawada. The second submission obviously proceeds on the basis that in respect of all pending cases relatable to the territory of Ibrahimpatnam Mandal, the Subordinate Judge's Court at Nuzvid continues to have jurisdiction-otherwise the transfer of cases from that Court to Subordinate Judge's Court at Vijayawada would not arise.
3. The short and engaging question that arises for consideration, therefore, is whether as and from the date G.O.Ms. No. 379 came into force i.e., from 22-9-1993, the Subordinate Judge's Court at Nuzvid would lose territorial jurisdiction over all cases relatable to the territory of Ibrahimpatnam Mandal pending in it as on 22-9-1993 and whether they automatically get transferred to the Subordinate Judge's Court at Nuzvid (sic. Vijayawada) without orders of transfer by the 3rd Respondent.
4. We are of the view that the jurisdiction of the Subordinate Judge's Court at Nuzvid continues to subsist in respect of the cases already instituted and pending before it as on 22-9-1993 even though they relate to the territory of Ibrahimpatnam Mandal. The relevant portion of the said CO., is as follows:
'In exercise of the powers conferred by Sub-section (a) (sic. (1)) of Section 15 of the Andhra Pradesh Civil Courts Act, 1972 (Act No. 19 of 1972) and in partial modification of the previous notifications issued on the subject, the Government of Andhra Pradesh, after consultation with the High Court of Andhra Pradesh hereby directs that with effect on and from the date of publication of/this notification in Andhra Pradesh Gazette, the Courts of Subordinate Judges in Krishna District mentioned in Column (2) (sic. (1)) of Table below shall have and exercise jurisdiction within the local limits mentioned in corresponding entry in Column (2) thereof.'
This clearly shows that the operation of the said G.O. is only prospective and not retrospective. A reading of Sub-section (1) of Section 15 of the Andhra Pradesh Civil Courts Act, 1972 also makes clear that the Government is conferred with the power to alter the local limits of jurisdiction of any District Court or Courts of Subordinate Judge only, from time to time. The said subsection reads as follows :-
'15. Local limits of jurisdiction of District Courts. Courts of Subordinate Tudge and District Munsif:-
(1) The Government shall, after consultation with the High Court by notification, fix and may from time to time, likewise alter, the local limits of the jurisdiction of any District Court or Court of Subordinate Judge; and the High Court shall, by notification, fix and may from time to time, likewise alter the local limits of the jurisdiction of any Court of District Munsif'.
A perusal of the provision shows that no power is conferred to alter the local limits of the jurisdiction of the Courts with retrospective effect. From this also it follows that the G.O. cannot have any retrospective effect. We may point out here that the G.O. mentions Sub-section (a) of Section 15 of that Act instead of Sub-section (1) of Section 15 - there is no Sub-section (a) to Section 15 of that Act.
5. If the G.O. in question has no retrospective effect, can it have the effect of automatically transferring the suits to the Court to which the territorial jurisdiction is transferred by it i.e., from the Subordinate Judge's Court at Nuzvid to that at Vijayawada If we have to follow the view of Wallace, J. rendered in 1924, the answer to that question would be in the affirmative. In Ramani v. M. Narayanaswami, AIR 1924 Mad. 697 a similar question arose in view of a notification issued by the then Government on 1-10-1923 by which the local limits of the jurisdiction of the Mayavaram Sub-Court were changed and the territorial jurisdiction in respect of a matter in that Court was transferred to the Tiruvalur Sub-Court. In spite of that the Mayavaram Sub-Court continued to entertain the suit and passed an order appointing a receiver, which was questioned before the Madras High Court on the ground that the Mayavaram Sub-Court did not have the territorial jurisdiction to make such an order after 1-10-1923 when by virtue of the transfer of the local limits within which the subject matter of the suit was located the jurisdiction over it was taken away from the Mayavaram Sub-Court and transferred to the Tiruvalur Sub-Court. Odgers, J., who heard the matter along with Wallace, J. preferred not toenquire into the question of effect of such transfer in view of the fact that no objection was taken at the earliest stage. But Wallace, J. held as follows :
'It is difficult then to say that the view, that a Court must have territorial jurisdiction all through the trial of a suit before it, is an unsound one, and I am inclined, as at present advised, to the view that the transfer of local jurisdiction does automatically effect the transfer of all pending suits and proceedings arising originally from that local jurisdiction. In the present case, then the Sub-Court of Mayavaram lost jurisdiction over this suit and all proceedings therein on the first of October and had therefore no jurisdiction to deliver the order under revision'.
A contrary view was taken by Phillips, J. in Chokkalinga Pillay v. Velayudha Mudaliar, AIR 1925 Mad. 117. That was also a Division Bench case. The other learned Judge in the Division Bench, Venkatasubba Rao, J. left open the said question observing as follows:
'On the question as to whether the old Court of the Subordinate Judge of Kumbakonam or the new Court of the Subordinate Judge of Mayavaram had jurisdiction to pass the final decree long argument was addressed to us. But, I refrain from expressing any opinion on it as in my view it is immaterial which of the two Courts had jurisdiction to deal with the further proceedings in O.S. No. 15 of 1903 which included the passing of a final decree in it. The question that has been raised is a very important one and the law upon it is uncertain.'
However, Phillips, J. held as follows after referring to Sadasiva Pillai v. Kalappa Mudaliar, (1990) 24 Mad. 39, Vedavalli Narasaiah v. Mangamma (1903) 27 Mad. 538 and Subbaraya Mudaliar v. Rakkhi (1908) 32 Mad. 140:
'It is difficult to discover any difference in principle between those cases and the present case where the territorial jurisdiction has been altered; and in fact it would appear that when the entire jurisdiction of the Civil Court has been taken away, such removal would apply with more force to pending suits than in a case where the jurisdiction of the Court over the particular place in which the property is situated has alone been removed .......... The jurisdiction of a Court consists in its power to entertain suits, and when once a suit has been properly entertained, it is difficult to understand how that jurisdiction is removed unless it is specifically so done by the order of a competent authority. Once the suit has been entertained, the remaining proceedings taken therein are not taken by reason of any particular territorial jurisdiction, but in the exercise of the powers vested in the Court to try suits generally and consequently the only time at which the territorial jurisdiction comes into operation is at the time of filing the suit. Once the Court has seizin of the case, it has jurisdiction to try it to its conclusion/unless there is any reason for holding that jurisdiction has been removed. If this be the right principle and I think it is, it would account for the fact that there is no provision in the Civil Procedure Code for the trial of suits, pending in a Court which had territorial jurisdiction at the time of their institution, after such jurisdiction has been removed before the trial is Concluded. In this view, it appears to me that the final decree passed in this suit was not passed without jurisdiction'
The view taken by Phillips, J. in Chokkalinga Pillay's case (2 supra) was approved by Ramesam, J. speaking for a Special Bench in Ramier v. Muthu Krishna, AIR 1932 Mad. 418 . The learned Judge held as follows :
'Let us suppose that some suits or applications relating to one property were pending in one Court. A notification is then issued taking away the properties from the jurisdiction of that Court and it comes to the knowledge of the Presiding Officer of that Court. Can it be said that ipso facto without anything further, without an order of the District Court or the High Court Under Section 24, Civil P.C., transferring certain work from that Court to the new Court all the business is transferred When we put this question to the learned Advocate he said that it must be regarded as so transferred. The next question that arose on this answer was whether the first Court can proceed with the trial of the pending suits. When we put this question to the learned Advocate he at once replied that the first Court also can proceed with the trial of those suits though he might also send them to the second Court. He had to give this answer because of the decision of our brother Phillips and Venkatasubba Rao. JJ., in Chokkalinga Pillay v. Velayudha Mudaliar (2 supra), in which it was held that once a suit is filed in one Court that Court can try the suit even if there is a change of jurisdiction by notification. Though Venkatasubba Rao, J, bases his decision on the consent of the parties, Phillips, J., does not do so. And when we remember the decisions of the Privy Council Ledgard v. Bull, (1887) 9 All. 191 and Minakshi v. Subramanya, (1888) 11 Mad. 26 that consent cannot give jurisdiction where there is none, it is clear that it is not consent that validates the trials and I agree with the reasons given by Phillips, J., namely, that the jurisdiction to try the suits was never lost.'
In Ishwar Mahto v. Naipal Singh, : AIR1956Pat280 , a Division Bench of the Patna Court was also inclined to take a similar view observing that the earlier view expressed by another Division Bench in Babui Dineshwari Kuer v. Ram Narain Singh AIR 1936 Patna 546 to the contra was obiter.
6. In Babui Dineshwari Kuer' (supra) Mohammad Noor, J. observed as follows (with which Saunders, J. agreed):
'Once a new Court is established and the territorial limit of an existing Court is curtailed by notification of Government, the latter Court ceases to have jurisdiction over the area which is taken away from its jurisdiction and placed under the jurisdiction of the newly established Court. Similarly, if an area is taken out of the jurisdiction of one existing Court and placed under that of another, the former Court ceases to have jurisdiction over the cases of the area so taken out of its jurisdiction and the pending cases automatically placed under the jurisdiction of the latter Court. It is not enough that a Court should have jurisdiction over a suit at the time of its institution but that its jurisdiction must continue till the case is finally disposed of, subject of course to any order of transfer which may be passed by a competent authority.
In order to enable a Court to pass a decree in a suit it must possess the basic jurisdiction which comes under four heads: (1) territorial, (2) pecuniary (3) personal and (4) subject matter. It is essential (barring those cases in which there are doubts about the territorial limits) that the Court must possess all these jurisdictions at the time of the passing of the decree, otherwise it is void. Therefore, if a Court loses the territorial jurisdiction it cannot proceed to pass the decree, though it had such jurisdiction when the suit was instituted.'
In Ishwar Mahto (Supra), Ahmad, J. on the other hand, observed (Mishra, J. concurring):
'I think that the question of jurisdiction of a Court over a suit has to be decided in relation to the facts as they stand at the initial stage. And once in any case it is found that initially that Court had the necessary jurisdiction to entertain that suit, it follows from it that the jurisdiction to dispose of that suit was then and there vested in that Court till its conclusion and any judgment given in exercise of that power cannot be said to be one without jurisdiction, unless it is proved that in the meantime that Court was divested of that power completely.
The power to entertain a suit is one and the power to dispose it of is another. The former, it is true, depends on its basic jurisdiction which in law is generally put under four heads, namely (1) territorial (2) pecuniary, (3) personal and (4) subject matter. But the latter emerges out of the condition that the suit has been properly and legally entertained and not from the condition that the Court continues to possess what is necessary for it to entertain the suit in its initial stage.
In other words, the rule of law is that once a Court is legally put in seizin of a case, it continues to be in seizin of it till it is finally adjudicated by that Court unless the case is transferred from there in due course of law or its jurisdiction to dispose of the suit finally is ended by legislation in express terms or by necessary implication.'
Ahmad, J. referred in support the view taken by Phillips, J. in Chokkalinga Pillay (2 supra).
7. We are inclined to agree with the view of Phillips, J. in Chokkalinga Pillay's case (2 supra) because apart from the fact that it had the approval of the Full Bench in Ramier (6 supra) expressed through Ramesam, J. (Beasley, C.J., and Cornish, J. were the other learned Judges), the reasons given by Phillips, J. find ample support from the views expressed by the Supreme Court in various decisions.
8. In Church of South India Trust Association v. Telugu Church Council, : [1996]1SCR322 the Supreme Court observed that the concept of jurisdiction of a Court comprehends '(i) pecuniary jurisdiction, (ii) territorial jurisdiction, and (iii) jurisdiction of the subject-matter' and held further as follows as regards territorial jurisdiction:
'Having regard to the said provision, (Section 21 of the C.P.C.) it has been held that though the defect of jurisdiction, whether it is pecuniary or territorial, or whether is in respect of subject-matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties, the policy of the Legislature has been to treat objections to territorial jurisdiction as technical and not open to consideration by an Appellate Court, unless there has been a prejudice on the merits.....this Court, has also taken note of Section 11 of the Suits Valuation Act, 1887, to hold that even objection as to the pecuniary jurisdiction is technical in nature and not open to consideration by an Appellate Court, unless there has been a prejudice on the merits. To the same effect is the decision in Seth Hiralal Patni v. Kali Nath : [1962]2SCR747 wherein it has been held that 'the objection of its territorial jurisdiction is one which does not go to the competence of the Court and can, therefore, be waived'.'
In Hiralal Patni's case (12 supra), the distinction between competence of a Court on subject matter on the one hand and competence with reference to territorial jurisdiction has been pointed out by the Supreme Court as follows:
'It is well settled that the objection as to local jurisdiction of a Court docs not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure.'
As Section 21 of the Code of Civil Procedure stands now, Sub-section (1) of that Section deals with objections as to the place of suing, and subsection (2) of that Section deals with objections with reference to the pecuniary jurisdiction in similar terms. However, in the present case we are concerned with the competence of the Court with reference to territorial jurisdiction. Thus, according to the view expressed by the Supreme Court in Hiralal (12 supra) and Church of South India Trust Association (11 supra), territorial and pecuniary jurisdictions are not more important than the jurisdiction with reference to the subject matter. Phillips, J. in Chokkalinga Pillay's case (2 supra) also expressed the same view when he said 'support to the view that territorial jurisdiction is not more important than and in fact probably not so important as the other form of jurisdiction of a Court is given by the provisions of Section 21, Civil Procedure Code'. That was before Section 21 was amended by Act 104 of 1976 with effect from 1-2-1977. In Kiran Singh v. Chaman Paswan, : [1955]1SCR117 the Supreme Court held as follows:
'It is fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and whenever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.'
After placing the principle in such broad terms, the Supreme Court then considered the effect of Section 21 of the C.P.C. as it then was and Section 11 of the Suits Valuation Act, 1877 and held as follows:
'The policy underlying Sections 21 and 99, C.P.C. and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an Appellate Court, unless there has been a prejudice on the merits.'
This is reiterated by the Supreme Court in B. Petroleum Co. v. P.J. Pappu, : (1966)IILLJ144SC . After the amendment of Section 21 of the C.P.C., territorial and pecuniary jurisdictions are placed on the same footing and they are placed on a lower pedestal than jurisdiction in respect of subject matters, in that regard.
9. When a Court does not have jurisdiction over the subject matter it cannot decide the matter at all. The following enunciation of Hugh B. Cox was referred to by Supreme Court in Pankaj Bhargava v. Mohinder Nath, : AIR1991SC1233 :
'A Court is said to have jurisdiction of the subject matter of a particular controversy if the Court has authority to hear and decide causes of a class to which the particular controversy belongs. In defining jurisdiction of the subject matter in these terms, the Courts have emphasized that the jurisdiction of a Court depends upon its right to decide the case and not upon the merits of its decision.'
Section 9 of the C.P.C. provides that 'the Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred'. Access to Court is an important right vested in every citizen and it implies the existence of the power in the Courts to render justice according to law (M.V. Elisabeth v. Harwan Investment and Trading 1993 Supp. (2) SCC 433). Jurisdiction recognized in Civil Courts Under Section 9 of the C.P.C. can be taken away by a legislation. In A.R. Antulay v. R.S. Nayak, : 1988CriLJ1661 , the Supreme Court has held that 'the power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal'. This is implied in Section 9 of the C.P.C. Section 15 of the Andhra Pradesh Civil Courts Act, 1972 delegates to the State Government the power to fix and to alter the local limits of the jurisdiction (i.e., territorial jurisdiction) of any District Court or Court of Subordinate Judge or Court of District Munsif. There is no delegation Under Section 16 of that Act as regards the other jurisdictions of those Courts i.e., jurisdiction over subject matter and pecuniary jurisdiction. Thus, from this point of view also territorial jurisdiction is placed on a much lower pedestal than the other two jurisdictions. Now, what is the effect of change of the alteration in jurisdiction on matters which are pending or in respect of which cognizance has already been taken prior to the change or alteration?
10. The principle applicable as regards pending matters when there is change in jurisdiction in respect of subject matters is stated by a Full Bench of this Court in P. Neelakanteswararaju v. J. Mangamma, : AIR1970AP1 (F.B.)as follows after referring to Maxwell on Interpretation of Statutes:
'Whatever be its origin, the presumption is in favour of the continuance of the jurisdiction vested in the Courts unless otherwise so directed by the statute. It would not be inferred merely from the grant of jurisdiction to a new tribunal over certain matters that the Legislature intended to deprive the superior Court of the Jurisdiction which it had already possessed over the same cases.'
The Full Bench further held that 'it is a well-established principle that a jurisdiction once vested cannot be divested unless the legislature has expressly or by necessary intendment directed otherwise'. This principle has been recognized for a long time without question. In Subbaraya Mudaliar v. Rakki, (1908) 32 Mad. 140, a Division Bench of Madras High Court held as follows:
'The question referred to us is whether suits for the recovery of rent, which, under the provisions of the Madras Estates Land Act 1 of 1908, are exclusively cognizable by the Revenue Court, are triable by the Civil Courts after that Act came into force if they were filed before the date when the Act came into force. We have no hesitation in answering the question in the affirmative. There is nothing in Section 189 of the Madras Estates Land Act which takes away from the Civil Courts the jurisdiction to hear and determine suits which were taken cognizance of by them before the Act came into operation. Section 189 merely says that Civil Courts shall not take cognizance. It says nothing about pending suits. We arc fortified in our opinion by the decision in Sadasiva Pillai v. Kalappa Mudaliar (3 supra), Vedavalli Narasaiah v. Mangamma (4 supra) and Nan Bin Aba v. Sheku Bin Andu, (1908) 32 Bom. 337'.
From this it is plain that even when by legislative enactment jurisdiction is taken away from a Court from a particular date, legal proceedings pending in that Court will not be affected by any such enactment. It follows a fortiori when in exercise of a power conferred under the Statute like Section 15 of the Andhra Pradesh Civil Courts Act, 1972, jurisdiction is taken away (and) there is no express provision in the statute to the effect that pending legal proceedings will be affected thereby. This is on the basic premise-as expressed by Lord Denman in R. v. Bolton, (1841) 1 Q.B. 66 - that the question of jurisdiction is determinable at the commencement of the enquiry. Phillips, J. has stated this principle in Chokkalinga Pillay (2 supra) when he said that the only time at which the territorial jurisdiction would come into operation is at the time of filing the suit and that once Court had seizin of the case, it had jurisdiction to try it to its conclusion, unless there is any reason for holding that that jurisdiction had been removed.
11. This also follows from what the Supreme Court recently said in C.I.T. v. Dhadi Sahi, 1994 Supp. (1) SCC 257. The Supreme Court held as follows:
'It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal or the Court of first instance and unless the Legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums.'
The Supreme Court rejected the view of the Allahabad High Court in C.I.T. v. Om Sons, 1979 116 ILR 215 that a Court or tribunal deciding a matter must not only be possessed of jurisdiction initially but must also be clothed with the power to decide the matter when the final order is passed, as held by Noor, J. in Babui Dineshwari Kuer (10 supra).
12. We are, therefore, clearly of the view that the jurisdiction of the Subordinate Judge's Court at Nuzvid over the O.Ps., of the petitioners pending before it on 22-9-1993 will not be affected and that Court will continue to have jurisdiction over the said O.Ps. This ought to be so because the proceedings pending before that Court might be nearing disposal or the trial in respect of the same might have substantially progressed. If and when the petitioners or any of them move before the District Court for transfer of these cases Under Section 24 of the Code of Civil Procedure, 1908, all these aspects and several others relevant, will have to be taken into consideration in arriving at a decision in accordance with law on whether they ought to be transferred or not. In the result, we hold that there cannot be a general order of transfer by the 3rd respondent in respect of all the cases 'similarly' pending before the Subordinate Judge's Court at Nuzvid and that the 3rd respondent was right in not making any suo motu order transferring those cases to the Subordinate Judge's Court at Vijayawada.
13. If and when any of the affected parties approach the 3rd respondent Under Section 24 of the Code of Civil Procedure, 1908, he will have to pass appropriate orders in accordance with law keeping in view the criteria laid by the decisions in that regard.
14. Subject to the above, the writ petition is dismissed. No costs.