Badrilal Jodhraj and Sons Indore Vs. Girdharilal and anr. - Court Judgment

Excerpt:
- - 2 failed to understand the true import of these two decisions. 1984, reads as follows :section 115--the high court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, and the district judge in any other case may call for the record of any case, which has been decided by any court subordinate to such high court or district judge, as the case may be, and in which no appeal lies thereto, and if such subordinate court appears -(a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested; the underlined portion very clearly points out that the district judge can revise only such orders, as have been passed by any court subordinate to it. article 236 of the constitution interprets the expression 'district judge',which includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, as well.v.d. gyani, j.1. by this petition under article 227 of the constitution of india, the petitioner challenges the orders, annexures-2 and 3, passed by the district judge, indore (respondent no. 2) in civil revision no. 15 of 1985.2. short facts necessary for disposal of this petition are that the petitioner-firm filed civil suit no. 55-b of 1981, in the court of vi civil judge, class ii, indore against respondent 1 for recovery of rs. 2860/- on the basis of a promissory note, executed by respondent 1. this suit was dismissed by the trial court, vide its judgment and decree dt. 3-8-1984, holding that the promissory note in question was without consideration. the petitioner preferred an appeal, which was registered as civil regular appeal no. 5-b of 1985. this appeal came to be heard by shri s. k. pandey, addl. judge to the court of district judge, indore, who by his judgment and decree dt. 11-4-1985 allowed the appeal and decreed the petitioner's claim. this judgment and decree has been filed as annexure-i to this petition. respondent 1 preferred a civil revision (c.r. no. 15 of 1985) under section 115, cpc before the district judge, indore. the petitioner objected to the very maintainability of this revision in the court of the district judge against the judgment and decree passed by the additional judge to the court of district judge. this objection was overruled by the district judge, who by order dt. 6-12-1985 (annexure-2) held that a revision petition against the judgment and decree of the addl. judge to the court of district judge was maintainable in the court of district judge. by yet another order dt. 19-7-1985 (annexure-3), the district judge (respondent-2) stayed execution of the decree passed by the additional judge to the court of district judge, in favour of the petitioner.3. short question, which arises for determination in this petition is whether a revision petition under section 115, cpc, against the judgment and decree passed by an additional judge to the court of district judge is maintainable before the district judge.4. shri agrawal, learned counsel appearing for the petitioner has contended that the impugned orders, passed by respondent no. 2, are without jurisdiction. referring to sub-section (2) of section 7 of the m.p. civil courts act, 1958, it was submitted that the court of additional judge to the court of district judge is merely an extension of the court of district judge. learned counsel also submitted that respondent no. 2 had jurisdiction under the amended section 115, cpc to hear a revision petition against any order, judgment or decree passed by the court of additional judge to the court of district judge. in this connection he also referred to two decisions, in sri vishnu awatar v. shiv autar, air 1980 sc 1575 and jagman singh v. hemsingh, 1985 jab lj 319 : (air 1986 madh pra 112) and submitted that respondent no. 2 failed to understand the true import of these two decisions.5. shri k. b. joshi, learned counsel appearing for respondent 1, on the other hand contended that an additional judge to the court of district judge can never be equated with the court of district judge, as according to him, a district judge is always one and only one in the district, while there can be as many as additional judges to the court of district judge, as may be required. it was also contended that as the office of a district judge, when held by a person, such a designation cannot be held by others, as there is no power conferred upon the district judge under the law to delegate his powers. learned counsel interpreting the amended section 115, cpc, claimed that a revision lies to the district judge and not to district court and in the present case it should be so presumed that civil revision no. 15 of 1985, wherein the impugned judgment/orders (annexures-2 and 3) were passed, was presented to the district judge, as persona designata, under powers conferred on him by the amended section 115, c.p.c.6. in order to determine the extent and scope of revisional powers of a district judge, it is not only section 115 of the civil p. c. but various other provisions of law, such as section 2(4), c. p. c. sections 3, 6, 7 and 13 of the m. p. civil courts act, 1958, need to be considered. section 115, cpc, as amended by the madhya pradesh (amendment) act no. 29 of 1984, which came into force with effect from 14th aug. 1984, reads as follows :'section 115-- the high court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, and the district judge in any other case may call for the record of any case, which has been decided by any court subordinate to such high court or district judge, as the case may be, and in which no appeal lies thereto, and if such subordinate court appears -- (a) to have exercised a jurisdiction not vested in it by law, or(b) to have failed to exercise a jurisdiction so vested; or(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity; the high court or the district judge, as the case maybe, make such order in the case as it thinks fit :provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the district judge, the high court alone shall be competent to make an order under this section.' 7. it was contended by the respondents that the term 'district judge', used in the underlined proviso is referable to a 'district judge' alone and does not include an additional district judge. it was also submitted that the term 'district judge', as used in this proviso is intended to be persona designata.8. referring to a similar provision in section 115, cpc as amended by section 3, c.p.c. (uttar pradesh) amendment act, 1978, which came into force with effect from 1-8-1978, a distinction was sought to be drawn between 'district court' and 'district judge', on the basis of similarly worded uttar pradesh amendment act of 1978, wherein the term used is 'district court', in place of 'district judge'. even assuming such a distinction, the term 'district judge', as used in the madhya pradesh amendment, does not become persona designata. a persona designate implies a person pointed or described as an individual, as opposed to a person ascertained as a member of a class or as filling a particular character. persona designata is a person selected to act in his private capacity and not in his capacity as a judge.9. section 1 of the m.p. civil courts act, 1958, provides for classification of civil courts in the state and section 4 thereof enables the state government to divide the state into such civil districts as it ,thinks fit.section 6(c) of the m.p. civil courts act. 1958, lays down the original jurisdiction of civil courts, which reads as follows :'section 6(c) -- the court of the district judge and the court of the additional district judge shall have jurisdiction to hear and determine any suit or original proceeding without restriction as regards value.'thus, it would be seen that in the matter of original jurisdiction of civil courts, no distinction has been made by the legislature in the jurisdiction of the court of district judge and that of the additional district judge. section 7 of the m.p. civil courts act, 1958, defines the principal civil courts of original jurisdiction and sub-section (2) thereof reads as follows:section 7(2) -- an additional judge to the court of a district judge, an additional district judge and an additional judge to the court of an additional district judge shall discharge any of the functions of a district judge, including the functions of principal civil court of original jurisdiction, which the district judge may, by general or special order, assign to him and in the discharge of such functions he shall exercise the same powers as the district judge.'an additional judge to the court of district judge, under section 7(2) of the m.p. civil courts act, 1958, enjoys the same powers and discharges the same functions, as a district judge. he can even discharge the functions of a district judge, including the functions of a principal civil court of original jurisdictions, which the district judge may by general or special order assign to him. merely because it is the district judge, who assigns the functions to an additional district judge under section 7(2) of the m.p. civil courts act, 1958, it cannot be said that the court of additional district judge becomes subordinate to the district judge.10. one of the essential conditions for invoking the revisional jurisdiction under section 115, cpc is that the court whose order is sought to be revised must be a subordinate court. section 115 cpc, as amended by section 4, c.p.c. (madhya pradesh amendment act) of 1984, reads as follows :'the high court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, and the district judge in any other case may call for the record of any case which has been decided by any court subordinate to such high court or district judge as the case may be and in which no appeal lies thereto.the underlined portion very clearly points out that the district judge can revise only such orders, as have been passed by any court subordinate to it.11. the position of an additional district judge, as it emerges, in view of the foregoing discussion pertaining to various pro visions of the m.p. civil courts act, 1958, is not that of a judge or court subordinate to the district court. on the other hand he enjoys an equal concurrent jurisdiction. an additional district judge, not being a court subordinate to the district judge, the district judge cannot revise an order passed by any additional district judge in any case in exercise of his power as a district judge, under section 115, cpc, as amended by the m.p. amendment act of 1984.12. whether the court of additional district judge is subordinate to the court of district judge, for the purposes of section 115, cpc, as amended by the m.p. amendment act of 1984? this question has been discussed above, vis-a-vis various provisions of the m.p. civil courts act, 1958. there is yet another aspect of the matter, which should engage our attention, while answering the question posed.13. chapter vi of part vi of the constitution of india relates to subordinate courts of the state, while article 233 deals with appointment of district judges in the state. article 236 of the constitution interprets the expression 'district judge', which includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, as well. this interpretation of the expression 'district judge', as given in article 236 of the constitution, also indicates that there is no subordination as between an additional district judge and a 'district judge', so as to empower district judge to exercise re visional powers under section 115. c.p.c. (as amended) in respect of orders passed by the court of an additional district judge. the decision in jagman singh's case (supra), relied upon by the respondents is of no avail. the question for determination in the aforesaid case of jagman singh (supra), as noted by our learned brother was :'hence, the point for determination before me involves a consideration of the question whether the impugned orders passed in civil appeals can be regarded as orders passed in 'other proceedings of any valuation', within the meaning of expression in the first proviso to section 115 of the civil p.c. 1908.'it does not decide the question, raised in this petition.14'. for the foregoing reasons, the impugned orders (annexures-2 and 3), cannot be allowed to stand. they must be set aside and are accordingly set aside. the petition stands allowed however, there shall be no order as to costs. amount of security deposit, after verification, be refunded to the petitioner.