Full Judgment
Holmwood, J.
1. Is the Additional Judge subordinate to the District Judge ?] Yes.
2. Sub-section (3) of Section 24 of the Code of Civil Procedure makes the Court of the Additional Judge subordinate to the District Court.
Jenkins, C.J.
3. It was a transfer to the Court of the Additional Judge, and before he can try the case he must be competent to try it.
4. Section 3 of the Bengal Civil Courts Act provides for four distinct Courts, the Additional Judge's Court being one. Sections deals with the appointment of Additional Judges, and in sub-section (2) of Section 8 the law contemplates the delegation of the District Judge's functions, and only thereafter can the particular case be transferred to the Additional Judge.
D. Chatterjee, J.
5. Must the District Judge completely assign those functions?}
6. There eau be a partial assignment after the vesting of jurisdiction.
Mookerjee, J.
7. Do you say that there should first be an order by the District Judge transferring his functions, and then another transferring the particular case ?]
8. The District Judge has Sessions functions also. Here he is to delegate to the Additional' Judge his function to hear Probate and Administration cases.
Babu Umakali Mookerjee, J.
9. I rely on Section 8 of the Bengal Civil Courts Act; in the alternative I say the transfer was under Section 24 of the Code, or under the District Judges' administrative powers, as under Section 9 of the Bengal Civil Courts Act, the Court of the District Judge has administrative control of the Court of the Additional
10. Sub-section (2) of Section 8 deals only with class of cases or functions.
Mookerjee, J.
11. Suppose the District Judge assigns one case to the Additional Judge.]
12. That is not functions. The question is whether the transfer of one case alone means transferring functions or jurisdiction. The provisions in the Madras and Bombay Civil Courts Acts are quite different, as the Legislature has conferred jurisdiction on them.
13. He can take up cases by way of transfer from the Additional District Judge. Under Section 11 the District Judge may transfer an individual case.
Holmwood, J.
14. He thus distributes cases among his subordinate Courts.
15. Yes. Similarly under Section 22 the function, of hearing an appeal, but not of receiving an appeal can be transferred. In Mahomed Musa's Case (1914) I. L. R. 41 Calc. 866; 18 C. W. N. 612. Stephen J. took that view regarding Section 92 of the Code that the assignment must be general for a class of cases.
Jenkins, C.J.
16. What do you mean by 'class of cases? ' Suppose the general list is very heavy, can't the District Judge transfer some of those cases
17. Yes. If he has first assigned his functions and thus given jurisdiction.
18. Power is jurisdiction, while function is duty. Mere conferring of powers does not give functions. In Bidya Moyee Debtya Oho vdhurani v. Surja Kanta Acharji (1905) I.L.R. 32 Calc. 875. the same view has been, taken by Ghone and Holmwood JJ. at p. 880 regarding appeals.
Mookerjee, J.
19. That case has been often criticised.
20. Yes. In Abdul Karim v. Abdus Sobhan (1911) I. L. R. 39 Calc. 146 and also by Rampini J. in Rakhal Chandra Tewary's Case (1906) 10 C. W. N. 841; 8 C. L. J. 34.
Holmwood, J.
21. Those remarks in Bidya Moyee Debya (2) are obiter, and I cannot associate myself with the general, remarks in that judgment.
Jenkins, C.J.
22. What are the sections under which a District Judge can transfer a case
23. Section 24 of the Code, or under his administrative powers under Section 11 of the Bengal Civil Courts Act and also under Section 92 of the Code as laid down in Abdul Karim v. Abdus Sobhan (1911) I. L. R. 39 Calc. 146 The provisions of Section 51 of the Probate and Administration Act are the same us Section 92 of the Code.
D. Chatterjee, J.
24. If functions mean official duties, are those to be transferred also ?
25. That is what these cases decide. After this jurisdiction has been conferred by the District Judge there will be two Courts.
26. The principle is the same that one case cannot be transferred to another Court unless it has jurisdiction to try all such cases.
27. 'Functions' means jurisdiction. The only case against me is that of Rakhal Chandra Tewari (1906) 8 C. L. J. 34; 10 C. W. N. 841 where Rampini J. said it would mean the transfer of functions in one case also. In the case of the inferior Courts a Judge can't be held to have jurisdiction unless it is expressly given, while in the case of the superior Courts jurisdiction is presumed unless explicitly removed.
28. Babu Umakali Mookerjee, Babu Raghunath Singh and Babu Sudhangsu Shekhar Mookerjee, for the respondent, were not called upon to reply.
29. The judgment of the Court (Jenkins C. J, WoodRoffe, Mookerjee, Holmwood and d. Chatterjee JJ.) was delivered by
Jenkins, C.J.
30. The question proposed for our determination is, whether, in view of the provisions of sub-section (2) of Section 8 of the Bengal Civil Courts Act {XII of 1887;, it is competent to a District Judge to transfer a particular case to an Additional Judge. We answer the reference in the affirmative. The reasons which induce us to adopt that conclusion are sufficiently set forth in the Order of Reference, and we need not repeat them.
31. The case will go back to the Divisional Bench for final disposal. The Divisional Beach will deal with the costs of this reference.