Daulatia and anr. Vs. Jaiya - Court Judgment

Excerpt:
- orderbannerji, j. 1. this revision, which is directed against a judgment and decree of the senior subordinate judge, kasumpti, dated 29th april 1949, relates to the ownership of 14 biswas of land out of khasra no. 4, khata no. 7 of village bagra (theog), which is claimed, on the one hand, by the petitioners (daulatia and sita ram) and on the other, by the opposite party, jaiya, by whom the suit was commenced on 7th august 1947. 2. the dispute, which relates to ownership and possession of land, was properly cognizable by the subordinate judge of theog. he dismissed the suit on 15th october 1948. on 20th november 1948, an appeal was taken to shri jagannath bhagat, district judge, mahasu, under section 31 (a), himachal pradesh (courts) order, 1948, which had come into force on 15th august.....

Judgment:
ORDER

Bannerji, J.

1. This revision, which is directed against a judgment and decree of the Senior Subordinate Judge, Kasumpti, dated 29th April 1949, relates to the ownership of 14 biswas of land out of Khasra No. 4, Khata no. 7 of village Bagra (Theog), which is claimed, on the one hand, by the petitioners (Daulatia and Sita Ram) and on the other, by the opposite party, Jaiya, by whom the suit was commenced on 7th August 1947.

2. The dispute, which relates to ownership and possession of land, was properly cognizable by the Subordinate Judge of Theog. He dismissed the suit on 15th October 1948. On 20th November 1948, an appeal was taken to Shri Jagannath Bhagat, District Judge, Mahasu, under Section 31 (a), Himachal Pradesh (Courts) Order, 1948, which had come into force on 15th August 1948. By the said section, it was enacted that;

'Appeals from decrees of Courts exercising original jurisdiction shall lie, (a) from a decree of a Subordinate Judge in a suit of value not exceeding five thousand rupees, to the Court of the District Judge.'

3. Though the value of the appeal was of a very small sum of RS. 1/6/6 (Rupee one, annas six and six pies) only, yet under the existing law, it was cognizable by the District Judge, Mahasu. Accordingly, it was pending in his Court.

4. Subsequently, by a Notification No. J. 79-22/48, dated 17th January 1949, it was provided as follows :

'In exercise of the powers conferred by the proviso to Para. 31 of the Himaohal Pradesh (Courts) Order, 1948, the Judicial Commissioner, with the previous sanction of the Chief Commissioner, is pleased to direct that within the limits of each of the District, or any part thereof, comprising Himachal Pradesh, appeals lying to the Court of the District Judge from decree and orders passed by any Subordinate Judge in any land suit of a value not exceeding Rs. 100 shall be preferred to the Senior Subordinate Judge exercising jurisdiction within such District or such part thereof, and the Court of such Senior Subordinate Judge shall be deemed to be the Court, of a District Judge for the purpose of all appeals so preferred.'

5. It is not disputed that the appeal if the aforesaid Notification bad been issued before it was preferred to the Court; of the District Judge, would be competent to the Court of Senior Subordinate Judge, Kasumpti.

6. On 22nd January, 1949, five days after the said Notification, which took away the jurisdiction of the Court of the District Judge to bear such appeals, the learned District Judge made the following order : 'Transferred to the Court of the Senior Subordinate Judge, Kasumpti.'

7. On 1st March 1949, the Senior Subordinate Judge, Kasumpti, received the appeal by way of this 'transfer'. On 29th April 1949, the learned Senior Subordinate Judge reversed the decision of the Subordinate Judge and decreed the suit. This application for revision is against this judgment.

8. I do not, at this stage, express any opinion on the merits of the case. But a question has been raised before this Court, which must be disposed of, before a final judgment can be given. It arises in this way.

9. When the appeal was preferred to the Court of District Judge, Mahasu, there was no Notification, pursuant to the proviso to para. 31, Himachal Pradesh (Courts) Order, 1948, empowering the Senior Subordinate Judge to hear appeals from the decisions of subordinate Judges in land suits of value not exceeding Rs. 100 (Rupees one hundred). The Court of District Judge was alone competent to hear such appeals under para. 31 (a), Himachal Pradesh (Courts) Order, 1948, and he was seised of the appeal under the existing law. The learned counsel for the petitioners argues that once the appeal was pending in the Court of the District Judge under the law and when the Court of Senior Subordinate Judge had no jurisdiction to hear such appeals, the District Judge was not competent to 'transfer' this appeal to the Court of the Senior Subordinate Judge. He contends that when the 'transfer' was made, the Court of the Senior Subordinate Judge was deemed, under the Notification, to be a Court of District Judge, for the purpose of all such appeals'. It was alone competent to hear such appeals. The District Judge had no jurisdiction to hear such appeals. Consequently, Section 24, Civil P. C., cannot be invoked for this purpose. His further contention is that even assuming that the Court of the Senior Subordinate Judge was an 'inferior' Court subordinate to the Court of the District Judge, such 'transfer' interfered with the vested, right of appeal to a superior Court which the appellant possessed, and there is nothing in the Notification, either by express words or by necessary intendment that it affected pending appeals. Consequently, the 'transfer' of the pending appeal was illegal and without jurisdiction.

10. On behalf of the opposite party, it is argued that the 'transfer' was made under the provisions of Section 24, Civil P. C., on 22nd January 1949, five days after the date of the said Notification. It was further submitted that the Notification affected only the procedure and directed a particular forum by which such appeals would be heard. No vested right of appeal was interfered with.

11. Before examining these contentions, it will be better to refer to Section 24, Civil P. C.

12. This section provides :

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

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

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

(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under Sub-section (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall for the purposes of such suit, be deemed to be a Court of Small Causes.'

13. From the words used in the above Sub-sections (1) (a) and (b) of Section 24, it is clear that the District Judge can transfer an appeal pending before it to any Court subordinate to it and competent to try or dispose of the appeal and withdraw such appeal and try and dispose of it itself. The Court of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.

14. The point of contention is that the Court of Senior Subordinate Judge or (for the sake of convenience, it may be called the appellate Court for purposes of such appeals) has been given the status of a District Court only for a particular purpose (to hear appeals of value not exceeding Rs. 100) by the notification. Could the District Judge, on 22nd January 1949, when he was not competent to hear such appeals, transfer such an appeal to a Court of equal footing from which he could not withdraw the appeal 'to try and dispose of it' himself under Section 24, Civil P, 0. The notification deprived the District Court of the jurisdiction to hear appeals in land suits of the value not exceeding RS. 100 (rupees one hundred). The Court of Senior Subordinate Judge alone can hear such appeals. On 22nd January 1949, such an appeal to the District Judge will be incompetent and the District Judge will have no jurisdiction to try it. Therefore, he cannot transfer such an appeal after the date of the issue of the notification to the Senior Subordinate Judge. If he had received any such appeals, all he can do is to advise the appellant to prefer the appeal to the proper Court (that is, the Court of Senior Subordinate Judge) or he can himself forward the appeal and not 'transfer' the appeal to the Senior Subordinate Judge.

15. But the main point involved is whether a pending appeal can be transferred This involves the consideration of the vested right of appeal.

16. The appeal was preferred to the District Judge under the law existing at the time (Section 31 (a), Himachal Pradesh (Courts) Order, 1948). It was a 'living law' at the time the appeal was taken to the District Judge. Then there is the proviso to this section under which the notification was issued.

17. Section 31, Himachal Pradesh (Courts) Order still 'lived' until the notification. The effect of the proviso to that section, resulting in the notification, dated 17th January 1949, is just as if the words therein had been inserted in the original section and the original section be so read at the present time. Section 31, Himachal Pradesh (Courts) Order is good for land suits of all values upto the date of the notification, 17th January 1949, but only good for those of higher value after that. Their Lordships held in Keshoram Poddar v. Nundolal, 54 I. A. 152 : (A. I. R. (14) 1927 P. C. 97), that 'the application of the law is when the parties begin to move under it.' This was done in the present case, before the notification. Therefore, the District Judge alone was competent to hear the appeal, which was pending before the date of the notification, 17th January 1949.

18. In my judgment, the District Judge had no authority to 'transfer' an appeal which was pending in his Court under the existing law to the Senior Subordinate Judge after the date of the notification.

19. I further agree with the contention of the learned counsel for the appellants that the right of appeal to a superior Court is a vested Tight. In this connection, I may refer to the Full Bench case in Kripa Singh v. Risalldar Ajaipal Singh, A.I.R. (15) 1928 Lah. 627 : (10 Lah. 165 F. B.). With respect, I adopt the reasoning of Tekchand J., who delivered the judgment as follows:

'The right to prefer or prosecute an appeal therefrom is not affected by subsequent change of the law, abolishing the appeal or modifying its forum, unless it Is BO provided expressly in the amended statutes or follows by necessary implications from its terms.'

20. In Colonial Sugar Refining Co., Ltd. v. Irwing, (1905) A. C. 369 : (74 L. J. P. C. 77), quoted therein, the case was from New South Wales and according to the law in force at the time, the appeal lay to the Privy Council. When the appeal so lay, the Australian Commonwealth Parliament passed an Act, called the Judiciary Act, by which the appeal lay to the newly constituted Supreme Court in Australia. The question arose if the Judiciary Act affected a pending appeal to the Privy Council. The Judicial Committee observed:

'The only question is : Was the appeal to His Majesty-in-Council a right vested in the appellants at the date of the passing of the Act or was it a mere matter of procedure It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively, unless a dear intention to that effect is manifested.'

21. In Jacobs v. Brett, (1875) 44 L. J. Ch. 377 : (20 Eq. 1), referred to in the Pull Bench of the Lahore High Court, above cited, Jeesel M. R., observed

'nothing is better settled than that an Act of Parliament which takes away the jurisdiction of a superior Court of law must be expressed in clear terms.'

22. The notification dated 17th January 1949, cannot, therefore, be held to be retrospective.

23. As an illustration of an analogous law, I may refer to Section 5, Federal Court (Enlargement of Jurisdiction) Act, 1947. This section, in clear terms, interfered with the vested right of appeal to His Majesty-in-Council, by declaring that all such appeals shall, on the appointed day, stand transferred to the Federal Court by virtue of the Act and shall be disposed of by that Court as if it had been an application duly made to that Court.

24. Ram Karan v. Ram Das, A. I. R. (18) 1931 ALL. 635 : (54 ALL. 299 F. B.), relied upon by the learned counsel for the opposite party, was a case where the cause of action accrued before the venue of trial was changed by the new Act. This new Act was in force when the action was commenced and therefore, it was held that the new Act would govern the action. The authority of this case is clearly inapplicable to the present case.

25. It is admitted that the notification dated 17th January 1949, is a substantive law, confer, ring a right of appeal in land suits of value not exceeding Rs. 100 to the Court of Senior Subordinate Judge. It is a well-known principle that a remedial law is a substantive law and therefore, ordinarily it will have no retrospective effect.

26. Section 24, Civil P. C., does not help the opposite party. It has no application to the facts of the present case. A District Judge is thereby empowered to transfer an appeal. He can only transfer such an appeal to a Court which he can subsequently recall to his own file for disposal by himself. Otherwise, the interpretation will be meaningless. The Senior Subordinate Judge's Court is not mentioned in Sub-section (3) of Section 24. Nor does Section 40, Punjab Courts Act, 1918, apply to Himachal Pradesh. After the 'transfer,' on 22nd January 1949, could the District Judge withdraw the appeal so transferred and hear and dispose of it himself He could not. This is the real test of the power vested in a Court of District Judge under Section 24, Civil P. C. If there is a power to 'transfer' an appeal, it must be accompanied by a power to withdraw the appeal so transferred to 'try and dispose of it,' if necessary. Section 24, Civil P. C., clearly contemplates that the power to 'transfer' and the power 'to withdraw and dispose of an appeal' should go band in hand, After 22nd January 1949, the District Judge could not 'withdraw to try' it because he was deprived of the jurisdiction to hear such appeals. I shall, therefore, hold that the learned District Judge had no authority or jurisdiction under Section 24, Civil P. C., to 'transfer' the appeal pending in his Court under a law which was a 'living law' at the time, to the Court of Senior Subordinate Judge, from whose Court he could not withdraw 'to try and dispose of it' himself.

27. It has next been contended by the learned counsel for the opposite party that it is too late in the proceedings to raise a point of this nature which was not raised in the Court of the Senior Subordinate Judge when the latter beard the appeal.

28. I cannot assent to this view. In view of the authority of the decisions of the High Courts in India, and also of the Privy Council, I am of opinion that if it appears to a Court that an order against which an appeal is brought has been made without jurisdiction, it can never be too late to admit and give effect to the plea that the order is a nullity. A plea of want of jurisdiction, though abandoned in one Court, can be raised in a higher Court: see Bansi Lal v. Ghulam A. I. R. (12) 1925 P. C. 290 : (63 Cal. 38). When it is a question of jurisdiction and such question depends upon no disputed facts, their Lordships of the Privy Council held in Maha Prasad v. Ramani Mohan, 41 I. A. 197 at p. 204 : (A. I. R. (1) 1914 P. C. 140), that it could be entertained although it was not specifically raised in the appeal. The plea of want of jurisdiction is one of the grounds in this application. The above Privy Council case is also an authority on the question when a Court had no jurisdiction to entertain the appeal, the parties could not give it the necessary consent (sic). Where a Statute creates a right and provides a remedy (see Para. 31 (a) of the Himachal Pradesh (Courts) Order) that remedy and no other is available.

29. Consequently, the proceedings before the Senior Subordinate Judge must be regarded as coram non judice and its judgment, a nullity.

30. The next point is, what will, in the circumstances, be the proper order which this Court can make in order to do justice between the parties

31. There is no doubt that the learned District Judge made a sad mistake and there was a miscarriage of justice. Counsel for the respondent finally submits before the Court that the learned District Judge, by 'transfer,' meant to forward it only to the proper Court, that of the Senior Subordinate Judge. In my opinion, the principle of law in such cases is expressed in actus curiae neminem grovabit (an act of the Court shall prejudice no person). In Jai Behram v. Kedar Nath, 49 I. a. 351: (A. I. R. (9) 1922 P. C. 269), Lord Carson, while considering the question under Section 144 Civil P. C . observed as follows :

'Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to aet rightly and fairly according to the circumstances, towards all parties involved.'

He then proceeded to cite the authority in Rodger v. Comptoir d'Escompte de Paris, (l87l) L. R. 3 P. C. 465 at p. 471 : (40 L. J. P. C. 1), where Cairns L. C. laid down :

'One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court' is used it does not mean merely the act of the primary Court or of any intermediate Court of appeal, but the act of the Court as a whole, from the Lowest Court which entertains jurisdiction over the matter upto the highest Court which finally disposes of the case.'

32. I am, therefore, of opinion that justice requires that the judgment and decree of the Senior Subordinate Judge, dated 29th April 1949, shall be recalled and that the appeal be remanded to the Court of the District Judge, Mahasu. It will receive the same number in the appeal register as it originally had and be disposed of according to law without) delay. The parties will appear before the District Judge on 17th September 1949. There shall be no order as to costs of this application here and of the appeal in the Court of the Senior Subordinate Judge, Kasumpti.

33. The order staying the execution will stand vacated.