T. Kamatchi Vs. S. Murali @ Kanagasabapathy Village Administrative Officer - Court Judgment

Excerpt:
civil - jurisdiction - section 24(1)(b) of the code of civil procedure 1908 (cpc) - petitioner-wife sought transfer of case filed by her for restitution of conjugal rights to the court near to the place of her residence - petition made on grounds of her physical and financial difficulty in travelling - respondent contended that the present court lay within the jurisdiction of permanent bench of madras high court and so present principal seat of madras had no power to deal with the same - held, simply because the jurisdiction was bifurcated between the permanent and principal bench, it could not be said that the courts and offices in the former's jurisdiction may not be subordinate to the chief justice, who wield power of administration for both permanent bench and principal seat - thus,.....orders.r. singharavelu, j.1. the petitioner/wife in the transfer civil miscellaneous petition, residing in salem and who is the respondent in h.m.o.p. no. 32 of 2004 on the file of sub-judge, pattukottai for restitution of conjugal rights filed under section 9 of the hindu marriage act by the respondent, seeking for a transfer of the same from the sub-court, pattukottai to the family court at salem, on the ground of her physical and fiscal difficulty in travelling all the way from salem to pattukottai. she is an unemployed person aged 38, living with her younger brother, who is working as a clerk in a private company.2. the husband, who is respondent in the transfer civil miscellaneous petition is an employee in the state government as village administrative officer, aged 47, living at.....

Judgment:
ORDER

S.R. Singharavelu, J.

1. The petitioner/wife in the Transfer Civil Miscellaneous Petition, residing in Salem and who is the Respondent in H.M.O.P. No. 32 of 2004 on the file of Sub-Judge, Pattukottai for restitution of conjugal rights filed under Section 9 of the Hindu Marriage Act by the Respondent, seeking for a transfer of the same from the Sub-Court, Pattukottai to the Family Court at Salem, on the ground of her physical and fiscal difficulty in travelling all the way from Salem to Pattukottai. She is an unemployed person aged 38, living with her younger brother, who is working as a clerk in a private company.

2. The husband, who is Respondent in the Transfer Civil Miscellaneous Petition is an employee in the State Government as Village Administrative Officer, aged 47, living at Ettivayal Village of Pattukottai.

3. Upon hearing the arguments of the learned counsel appearing for either side and also considering the fact that the husband is employed and getting salary; whereas the wife is unemployed and depending upon her brother's meagre income, it is found that there is a valid ground for transfer of the above mentioned proceedings from Sub-Court, Pattukottai to the Family Court at Salem, especially when no financial support is offered by the side of the husband for the wife to travel to Pattukottai in attending the proceedings of the Court.

4. Mr.K.Chandrasekar, learned counsel appearing for the husband raised a legal embargo in transferring the case from Pattukottai to Salem. The power of transfer is exercisable by invoking Section 24 of C. P.C.; according to proviso (b) to Sub-section (1) of that section, on the application, the High Court may withdraw any suit pending in any Court subordinate to it; and transfer the same for trial to any Court subordinate to it. Thus, it is to be seen that the High Court making the order of transfer shall be empowered under Section 24(b)(1) C.P.C. not only to withdraw from a Court; but also to transfer into another Court; and that both shall be subordinate to the said High Court.

5. The contention by the learned counsel for the Respondent/husband was that, in order to withdraw a suit, that should be pending in any Court subordinate to the Court which makes the order of transfer. It was pointed out that Sub-Court, Pattukottai is lying within the jurisdiction of the permanent bench of Madras High Court at Madurai. So it was argued that this Principal Seat at Madras cannot have the power of withdrawal from Sub-Court, Pattukottai.

6. Mr. M.R. Dharanichander, learned counsel appearing for the Petitioner/wife submitted that even if similar application for transfer is filed in Madurai Bench, the Respondent/Husband will oppose that application also with a similar argument relying upon Section 24(1)(b)(ii), by contending that the Madurai Bench may not have jurisdiction to order transfer of the proceedings to Sub-Court Salem, inasmuch as that Court falls into the Territorial jurisdiction of Principal Seat at Madras High Court.

7. There are two views of looking at things (1) all Courts are subordinate to either components of Madras High Court i.e. Principal Seat at Madras and Permanent Bench at Madurai. (2) The discretionary power of the Chief Justice provided in the Presidential Order of bifurcating the High Court into Principal Seat at Madras and Permanent Bench at Madurai may be invoked in such contingencies.

8. The Madras High Court (establishment of a permanent Bench at Madurai) order, 2004 was made by the President of India in exercise of powers conferred by Sub-section (2) of Section 51 of the States Reorganisation Act, 1956 (37 of 1956), whereby the establishment of a permanent Bench of Madras High Court at Madurai was made with Judges of the Madras High Court, not less than five in number, nominated by the Chief Justice of Madras High Court, who according to that order shall sit at Madurai in order to exercise the jurisdiction and powers vested in that High Court in respect of cases arising in Districts of Kanyakumari, Tirunelveli, Tuticorin, Madurai, Dindigul, Ramanathapuram, Virudhunagar, Sivagangai, Pudukottai, Thanjavur, Nagapattinam, Tiruchirappalli, Perambalur and Karur in the State of Tamil Nadu. There is also a proviso to that order, in and by which the Chief Justice of Madras High Court may, in his discretion order that any case or class of cases arising in any such district shall be heard at Madras.

9. Regarding exercise of that discretion by the Chief Justice of the Principal Seat, a controversy arose in a particular circumstance as found in the case law reported in Rajasthan High Court Advocates' Association v. Union of India and Ors. (2001) 2 SCC 294.

10. That was a case, where the President of India had issued the High Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976. That order having established a permanent Bench of the High Court of Rajasthan at Jaipur and having appointed the minimum number of Judges as would sit at Jaipur, proceeded to declare that the permanent Bench seat at Jaipur, shall exercise the jurisdiction and power for the time being vested in the High Court in respect of cases arising in the districts, 11 in number, as mentioned therein. A discretionary jurisdiction was also conferred on the Chief Justice of the High Court to order that any case or class of cases arising in any district, forming part of territorial jurisdiction of the permanent Bench at Jaipur shall be heard at Jodhpur (principal seat).

11. Carving out jurisdiction between the cases to be heard at Jodhpur principal seat and the Jaipur Bench seat, the then Acting Chief Justice of the High Court of Rajasthan issued an order dated 23.12.1976 in that regard. On 12.1.1997 the Acting Chief Justice issued yet another order substituting the following Explanation in place of the Explanation which formed part of the order dated 23.12.1976:

A writ case shall be deemed to arise in the district where the cause of action for issuing the first order pertaining to that case passed by a court, tribunal or authority has arisen irrespective of the district in which the appeal or revision from that order is heard and irrespective also of the fact whether or not there has been any modification or reversal of the order in appeal or revision.' It was held by the Supreme Court that 'the Chief Justice of the State cannot, artificially or indirectly take away the jurisdiction belonging to one and confer it on the other.' It was further held 'Conferring a discretion on the Chief Justice to order any case or class of cases arising in any district within the territorial jurisdiction of permanent Bench at Jaipur shall be heard at Jodhpur cannot spell out a power to define where the cause of action shall be deemed to have arisen in a writ case.' It was further held that 'Whether the case arises from one of the specified districts or not so as to determine the jurisdictional competence to hear by reference to territory bifurcated between the principal seat and the Bench seat, shall be an issue to be decided in an individual case by the Judge or Judges hearing the matter if a question may arise in that regard.

12. Thus, even though on policy it was accepted that the actual cause of action for a suit may only decide the invoking of jurisdiction of Permanent Bench or Principal Bench, that could be decided only judicially in individual case upon a lis; and away from a lis, no such order can be made in exercise of discretionary power of transfer vested with the Chief Justice in proviso to the connected Presidential Order.

13. The next question that may arise is that even according to the said proviso, such order of Chief Justice may be passed, so as to hear the case of any District falling within Permanent Bench at Madurai, only at Madras. In this regard the word 'shall be heard at Madras,' may have to be read conjointly with the other preceding lines in such proviso to Presidential Order, to the effect that there shall be established a Permanent Bench of Madras High Court at Madurai, and such judges (nominated for Madurai Bench by Chief Justice) shall exercise the jurisdictional powers vested in that High Court with respect to cases of Districts allotted to that Permanent Bench. What the proviso reads in that context is that the Chief Justice may order any case or class of cases arising in any such District shall be heard at Madras.

14. This would only mean that the Chief Justice may transfer a case pending at Permanent Bench to Principal Bench irrespective of the fact that the cause of action and Territorial jurisdiction of that case may only make it fall under the Permanent Bench at Madurai. In short, the above proviso empowers a transfer from Permanent Bench to Principal Bench; and not relating to withdrawal of case of particular District of Permanent Bench, to another jurisdictional District of Principal Bench.

15. Thus, among the two views set out in para 7(supra) the second is not possible to be applied for a case to be transferred from one District lying in the Permanent Bench at Madurai to another District lying in the Principal Seat by exercising discretionary power of the Chief Justice, as provided in the proviso to the Presidential Order. Therefore, the only remaining remedial view is that mentioned as No. 1 in para 7 (supra).

16. The question that would naturally arise would be whether the Courts functioning in the Districts, Territorial jurisdiction of which was vested with Permanent Bench at Madurai will be called as Courts subordinate to the Principal Bench at Madras. The word 'subordinate' as found in Webster's New World Dictionary would mean, 'under the power or authority of another'. The same word in Oxford Dictionary carries a meaning that, a person working under another's control or orders. As per Advanced Law Lexicon by P.Ramanatha Iyer 3rd Edition of 2005 , at its page 4518, 'Subordinate Court' means all Courts subordinate to the High Court including Court of Small Causes [Legal Practitioner Act (18 of 1879), Section 3]. It means any Court subordinate to High Court [Contempt of Courts Act (70 of 1971) Section 6 expln.]. In that enactment the said word was used in a wide sense as including over which the High Court has got superintendence, that is to say all Courts subject for the time being to its appellate jurisdiction AIR 1940 Ram 68 . If the Courts lying within the Territorial jurisdiction of the Permanent Bench at Madurai are in any way found subordinate also to the Principal Seat at Madras High Court either administratively or judicially, then Section 24(1)(b) of C.P.C. may empower this Court to withdraw a suit even from a District within the Territorial jurisdiction of the Permanent Bench at Madurai and to transfer it to any District within the Territorial jurisdiction of Principal Seat at Madras. This is in view of the following requirements as found in Section 24(1)(b) C.P.C:-

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may, at any stage -

(a)...

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i)try or dispose of the same; or

(ii)transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same;

17. True it is, that the word High Court under Section 3(25) of the General Classes Act is defined as, 'High Court', used with reference to Civil proceedings shall mean the highest Civil Court of appeal in the part of India in which the Act or regul n containing the expression operates. Although, it may appear that the Court of appeal for cases in the Districts lying within the Territorial jurisdiction of Permanent Bench at Madurai would only be the latter, when once the proviso to Presidential Order above mentioned empowers the Chief Justice in the Principal Seat at Madras High Court to order for hearing of any case pending in the Madurai Bench at Madras, it would only indicate that such power of appellate authority of the Madurai Bench is likely to be delegated to the Principal Bench at Madras. This delegation as connoted to the proviso to the Presidential Order cannot have any meaningful effect unless and until the Principal Seat is clothed with such power of appellate authority over the Territorial jurisdiction of Permanent Bench at Madurai. To put it in other words if only the Principal Bench at Madras can hear and decide the matter arising out of Districts lying in the Territorial jurisdiction of Permanent Bench at Madurai, the proviso to the Presidential Order can meaningfully empower the Chief Justice to make order that any case or class of cases arising in any such Districts shall be heard at Madras. It is thus the Principal Seat at Madras is delegated with the power of appellate authority over cases arising from the Districts allotted to Permanent Bench at Madurai. When once this element is proved, then both the Presiding Officers and the Courts of the Districts falling within the Territorial jurisdiction of the Permanent Bench at Madurai will be considered as subordinate also to the Principal Seat at Madras.

18. Moreover, it cannot be said that simply because the jurisdiction was bifurcated between the Permanent and Principal Bench, the Courts and the offices in the former's jurisdiction may not be subordinate to the Chief Justice, who wields power of administration for both Permanent Bench at Madurai and Principal Seat at Madras. Thus, the Courts lying within the jurisdiction of Permanent Bench at Madurai can be termed as subordinate to the Principal Seat at Madras and in that sense, the powers vested under Section 24(1)(b) of C.P.C. can be exercised by this Court and valid transfer can be made upon withdrawing the case from the Court at Pattukottai and transferring the same to that of the Court at Salem.

19. Therefore, the Transfer C.M.P. is allowed. The case in H.M.O.P. No. 32 of 2004 pending on the file of Sub Court, Pattukottai, is ordered to be withdrawn and to transferred to the file of Family Court, Salem. The records shall be sent forthwith to the Transferee Court which also will address the transferor Court and get the records sent and dispose the case as early as possible in accordance with law. No costs. Consequently, C.M.P. No. 2455 of 2005 is closed.