Dilip Banerjee and Another vs Sukhamoy Upadhyay and Others

Sukumar Chakravarty, J.—This revisional application is directed against the order dated 8.8.85 passed by the learned District Judge, Burdwan, in Misc. Appeal No. 91 of 1985 directing the continuance of the stay of the operation of the order dated 12.7.85 passed by the learned Munsif, 2nd Court, Asansol, in Title Suit No. 68 of 1982, till the disposal of the misc. appeal. The caveat having been lodged, this revisional application has been heard as a contested application as desired by the parties.

The opposite party nos. 1 to 3 as plaintiffs filed the Title Suit No. 68 of 1982 in the Court of the 2nd Munsif, Asansol, against the opposite party nos. 4 and 5 as defendant nos. 1 and 2 for a declaration that the action of the defendant nos. 1 and 2 entertaining/considering the tenders submitted by Sreema Transport Agency for the transport job as per Tender Notice No. SAT/GM/SAND Transport/81-1122 dated 7.2.81 and SAT/-GM/Transport/81 dated 4.9.81 wore unlawful and void and that the defendants'' company had no right to accept the said tenders for the said job and that the plaintiffs were entitled to be called for negotiating the rates quoted by them in the tenders submitted by them on 11.10.81 in respect of that transport job and for permanent injunction restraining the defendant nos. 1 and 2 from entertaining/considerinq/accepting the tenders of Sreema Transport Agency and also restraining them from disposing of the tenders submitted by the eligible tenderers without giving any opportunity to the plaintiffs for negotiating the rates quoted by them in response to the Tender Notice Nos. SAT/GM/Transport./81 dated 4.9.81. The plaintiffs filed also a petition for temporary injunction under Order 39 Rules 1 and 2 of the CPC and obtained the ad-interim injunction against the defendant nos. 1 and 2 till the disposal of the petition for temporary injunction.

The petitioners Dilip Kumar Banerjee and Moloy Kumar Banerjee carrying on business under the name and style of Sreema Transport Agency came to know about the suit and the ad-interim order of injunction already granted and got themselves added to the suit as defendant Nos. 3 and 4. The defendant nos. 3 and 4 then filed written objection to the plaintiffs'' petition for temporary injunction and upon notice to the other parties to the suit filed also a petition for temporary injunction under Order 39, Rules 1 and 2 of the Code of Civil. Procedure with a prayer for ad-interim injunction for restraining the defendant nos. 1 and 2 from publishing any list of accepted tenders and giving affect to the tenders and allotting any work order in respect of the Tender No. SAT/GM/SAND/Trans/85/5085 dated 6.6.85 so far as the tender work related to Tirat Colliery Bunker till the disposal of the suit.

The learned Munsif by his order dated 12.7.85 while fixing the date for hearing of the petition for temporary injunction granted ad-interim order of injunction restraining the defendant nos. 1 and 2 from publishing any List of accepted tender and from giving effect to the tender in respect, of the Tender No. SAT/GM/SAND/Trans/85/30 85 dated 6.6.85.

The defendant nos. 1 and 2 (Eastern Coalfields Ltd. and its Manager) filed the Misc. Appeal No. 9 of 1985 on 15.7.85 before the learned District Judge, Burdwan, against the learned Munsif''s aforesaid Order dated 12.7.85 and obtained the stay of the operation of the impugned order of the learned Munsif pending the disposal of the Misc. Appeal as per the learned District Judges'' Order dated 15.7.85.

The defendant nos. 3 and 4 as respondents nos. 1 and in the said misc. appeal, filed the petition before the learned Judge on 23.7.85 for return of the memorandum of appeal. after vacating the stay order and order admitting, the misc. appeal as in view of the notification issued by the High Court u/s 21(4) of the Bengal, Agra and Assan. Civil Courts Act, 1887 (hereinafter referred to as the Act) with previous sanction of the State Government, the appeal from the decrees and orders of the Munsifs of Asansol lying to the District: Judge of Burdwan u/s 21(2) of the said Act shall" be preferred to the Court of the Subordinate Judge (now the Assistant District Judge) at Asansol. The defendant nos. 3 and 4 took also another objection by saying that in view of the decision in 1983(2) C.L.J. 72, the stay of the operation of the impugned order of the learned Munsif granted by the District Judge in the misc. appeal against that order, was illegal. The learned District Judge by his impugned order dated 8.8.85 overruled all the objections of the defendant nos. 3 and 4 (respondent nos. 1 and 2) and directed the continuance of the stay till the disposal of the misc appeal.

The defendant nos. 3 and 4 (respondent nos. 1 and 2, being aggrieved by the impugned order has come to this court in revision.

Mr. Saktinath Mukherjee appearing on behalf of the petitioner defendant nos. 3 and 4 has submitted that in view of the notification issued by the High Court with the previous sanction of the State Government u/s 21(4) of the Act directing that the appeals from the decrees and orders from the Munsifs at Asansol lying to the District Judge of Burdwan u/s 21(2) of the said Act shall be preferred to the Court of the Subordinate Judge at Asansol, the learned District Judge had no jurisdiction to admit the present misc. appeal and to grant the stay order at the time of such admission of the appeal, and that all orders of the learned District Judge from the stage of admission of the misc. appeal are void and illegal. According to Mr. Mukherji, the learned District Judge could have withdrawn the appeal to his file after its admission by the learned Subordinate Judge at Asansol either u/s 22 of the Act or u/s 24 of the Civil Procedure Code. In support of his such submission Mr. Mukherji has relied on the decision in AIR 1915 All. 18, AIR 1975 All. 298 and AIR 1971 Assam 6, Nagaland 122.

Mr. Mukherji has further submitted that even if it be assumed for the sake of argument without conceding that the District Judge as also jurisdiction to admit such appeal in spite of the High Court''s aforesaid notification, still the learned District Judge has acted illegally by granting the stay of the operation of the impugned order against which the misc. appeal was preferred, in violation of the principle of law enunciated by this High Court in 1983(2) C.L.J. 72.

Mr. Sudhis Dasgupa appearing for the opposite party plaintiffs has submitted that the notification u/s 21(4) of the Act has not taken away the jurisdiction of the District Judge to entertain and admit the appeals from the decrees and orders of the Munsifs of Asansol but has only directed that such appeals which are to be filed before the District Judge, Burdwan, u/s 21(2) of the Act, shall be preferred to the Court of the Subordinate Judge at Asansol. According to Mr. Dasgupta, there was no fundamental lack of jurisdiction on the part of the District Judge to entertain and admit the appeals in view of section 21(2) of the Act, and that the District Judge by admitting the misc. appeal in question in spite of the notification u/s 21(4) of the Act, has committed only the iregularly which may be ignored when it could not be shown that the said iregularity has caused any prejudice to any party to the suit. Mr. Dasgupta''s further submission is that the source of jurisdiction of the District Judge in admitting the appeals is u/s 21(2) of the Act and that the High Court by issue of the notification u/s 21(4) of the Act has merely distributed the business of the admission of appeals from the Munsifs as a matter of convenience with reference to certain local area. Mr. Dasgupta in support of his such submission has relied on the decision in Jagabandhu Nandi Vs. Sivaprosad Bhatta-Charjya and Others .

As regards the merit of the impugned order of the learned District Judge, Mr. Dasgupta has submitted that to remove the injustice done by the learned Munsif while granting ad-interim order of injunction in a blanket way without considering the extent and nature of the prayer of the party demanding ad-interim order of injunction, the Appellate Court in the misc. appeal against such order of the learned Munsif, can grant the stay of the operation of the impugned order till the disposal of the misc. appeal only to meet the ends of justice.

Mr. T.K. Bose appearing for the opposite party nos. 4 and 5 (defendant nos. 1 and 2 in the suit) has adopted the submission of Mr. Dasgupta.

Section 21 of the Act deals with the appeals from the Subordinate Judges and Munsifs. In the present case, this Court is concerned with the appeal from the decrees or orders of the Munsifs. Section 21(2) of the Act is the relevant provision which provides that save as aforesaid, an appeal from a decree or order of the Munsif shall be to the District Judge. Sub-section (3) of Section 21 of the Act enjoins that where the function of receiving any appeals which lie to the District Judge under Sub-section (2) has been assigned to an Additional District. Judge, the appeals may be preferred for the Additional, Judge. Sub-section (4) of Section 21 of the provides as follows:

The High Court may, with the previous sanction of the State Government, direct, by notification in the official gazette, that appeals lying to the District Judge under Sub-section (2) from all or any of the decrees or orders of any Muusif shall be preferred to the Court of such Subordinate Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred according.

The appears from the High Court Notification No. 4068 A dated 7th June, 1920 that the High Court issued the said notification u/s 21(4) of the Act with the previous sanction of State Government directing that appeals from the decrees and orders of the Munsifs at Asansol, lying to the i District. Judge of Burdwan u/s 21(21) of the said Act, shall be preferred to The Court of the Subordinate Judge at Asansol and the said notification was published in the Official Gazette. The said notification is a statutory notification issued in accordance with the provisions of the Act and not an. administrative one. Section 21(2) of the Act providing the forum where the appeals from the decrees or orders of the Munsif shall lie, shall have to be read with Sub-section (3) and Sub-section (4) of the Act. This Court, is concerned here with sub-section (4) of section 21 of the Act. issue of the notification u/s 21(4), the High Court does not distribute the business of the admission of appeals from, the decrees orders of the Munsif between the District Judge and the Subordinate adage. By that notification, the High Court directs that appeals from the decrees or orders of the Munsifs of a particular area lying to the District Judge u/s 21(2) of the Act shall be preferred to the Court of the Subordinate Judge of that area, thereby rest raining the District Judge to entertain such appeals by implication. Law cannot and has not permitted two forums to admit appeals at the same time. The source of admission of appeals from the decrees or orders of the Munsif by the District Judge is u/s 21(2) of the Act whereas the source of admission of such appeals which lie to the District Judge u/s 21(2) by Subordinate Judge is u/s 21(4) of Act The power of the District Judge to entertain and admission is from the decrees or orders of the Munsif of a particular area remains suspended or in abeyance as-soon as the High Court with* the previous sanction of the State Government issues notification u/s 21(4) of the Act directing that appeals from the decrees or orders of the Munsif of that area lying to the District Judge u/s 21(2) of the Act shall be preferred to the Court of the subordinate Judge of that area If, however, such Subordinate Judge as contemplated u/s 21(4) of the Set remains absent from the station or the said office falls vacant because of the circumstance as mentioned in section 11 of the Act, then u/s 11(o) of the Act, the District Judge may exercise all or any of the jurisdiction of that Court.

In the case of Mangilal Agarwalla v Jamunalal Agarwalla & Ors. reported in AIR 1971 assam and Nagaland 122, the question as in the present case was raised in the revisional application against the order dated 21.12.1970 of the District Judge, Goalpara in Misc. Appeal No. 19 of 1970 admitting the appeal against the order of the learned Munsif and staying that order passed by the learned Munsif in Title Suit. No. 392 of 1970 in view of the notification issued u/s 21(4) of the Act. D.M. Sen, J. did not interfere with the impugned order of the learned District Judge because the learned District Judge admitted the appeal in the absence of the concerned Subordinate Judge (Assistant District Judge) contemplated u/s 2 1(4) of the Act and gave the benefit of section 11(4) of the Act to the District Judge concerned.

The other decision reposed in AIR 1915 All. 18 and Marwari Sabha Pilakhwa Vs. Sri Kanhaya Lal and Others, are of course not on the point. In the case reported in AIR 1915 All 16 (Sheo Harakh v. Ramnchander) it has been held by a Division Bench of the Allahabad High Court that where the appeals lying to a District Judge u/s 2 1(2) of the Bengal N.W.P and Assam Civil Courts Act (similar to the Bengal, Agra, Assan. Civil Courts Act) are directed u/s (4) to be preferred to the Court of a Subordinate Judge, the intention is that the appeals preferred accordingly should be heard and disposed of by the Subordinate Judge without any order of transfer of such appeals to his Court u/s 22 of the said Act.

In the decision in Marwari Sabha Pilakhwa Vs. Sri Kanhaya Lal and Others, the same principle of law was enunciated in addition to the clear observation that Sub-section (4) of section 21 of the Act creates an entirely distinct forum of appeal.

In view of the notification u/s 21(4) of the Act in the present case, the Court of Subordinate Judge at Asansol is entirely a distinct forum of admitting appeals from the decrees or orders of the Munsifs of Asansol and so long as the said notification remains in force, the forum of the District Judge for entertaining and admitting such appeals u/s 21(2) of the Act shall remain suspended or closed by implication.

It has already been stated that the High Court by issue of the notification u/s 21(4) of the Act does not distribute the business of admission of appeals from the decrees or orders of the Munsifs between the District Judge and Subordinate Judge of a particular area concerned, as the District Judge u/s 13(2) of the Act, subject to general or special order of the High Court may assign or distribute the civil business to each of the Munsifs or Subordinate Judges if the same local jurisdiction is assigned to or more Munsifs or Subordinate Judges. The scope of section 13(2) of the Act is quite different and distinct from that of section 21(4) of the Act.

In the case reported in 53 C.W.N. 639 (Jagabandhu Nandi v. Sivaprosad Bhattacharyya & Ors.) a suit in respect of the property situated at Titagarh was filed in the Court of the First Munsif at Sealdah who had no territorial jurisdiction over the subject-matter although the First Munsif had the pecuniary jurisdiction. The successor-in-office of the First Munsif had neither the territorial nor the pecuniary jurisdiction over the subject-matter. According to the distribution of civil business u/s 13(2) of the Act, Titagarh was allotted to the Second Munsif at Sealdah who had jurisdiction both territorial and pecuniary over the subject-matter. The successor of the First Munsif transferred the suit to the Court of the Second Munsif in anticipation of the District Judge''s sanction. The order transferring the suit was challenged in revision in the High Court. It was held by Chakravartti, J. that the source of jurisdiction of a Munsif was the order u/s 13(1) of the Act and that an order made by the District Judge u/s 13(2) of the Act distributed as a matter of convenience and with reference to certain local areas, the civil business amongst two or more Courts each of which had jurisdiction over the whole area, and that neither of the Courts lost jurisdiction which it had under the Government order made u/s 13(1) of the Act. The same principle of law was followed in the decision in 1981(2) C.L.J. 26 (Sailendra Nath Mukherjee v Stewart & Co. Ltd.). The facts and the point of issue involved in the aforesaid case are different from the facts and point of issue in the present case and accordingly the principle of law laid down in the aforesaid cross does not any is the present case.

In view of what has been stated and discussed above, I hold that the High Court Notification u/s 21(4) of the Act in the present case, has suspended or closed the forum of the District Judge to entertain and admit the appeals from the decrees or orders of the Munsifs of Asansol so long as the said notification remains in force and has opened. The forum of the Subordinate Judge at Asansol to entertain and admit such appeals and accordingly the fundamental or inherent jurisdiction of the District Judge to entertain and admit such appeals u/s 21(2) of the Act has only ceased to function subject, however, to the provisions of section 11(4) of the Act.

Such being the legal position, the learned District Judge, Burdwan, has wrongly exercised his jurisdiction while entertaining and admitting the misc. appeal against the order of the learned Munsif of Asansol and such wrong exercise of jurisdiction is not a mere irregularity. The High Court after issuing the notification u/s 21(4) of the Act, cannot allow at the same time both the District Judge, Burdwan and the Subordinate Judge (now Assistant District Judge) at Asansol to entertain and admit appeals from the decrees or orders of the Munsifs of Asansol to the creation of chaos in the judicial work and administration. On this ground alone not only the impugned order of the learned District Judge but also all his orders in the misc. appeal from the stage of its admission shall have to be set aside with a direction upon the learned District Judge to return the memorandum of appeal to the filing Advocate for presentation to the proper forum.

Without expressing any opinion on the merit of the misc. appeal if legally filed against the order of the learned Munsif granting ad-interim order of injunction till the disposal of the petition for temporary injunction, I may only say for guidance of the first appellate court that while admitting such misc. appeal, if the appellate court is confronted with a prayer for stay of the operation of the impugned order against which the misc. appeal has been preferred, the first appellate court being subordinate to the High Court is under obligation to follow the principles of law as enunciated in 1983(2) C.L.J. 72 with regard to the feasibility of granting stay of the operation of the impugned order till the disposal of the said misc. appeal, unless there is any other decision of this High Court to the contrary. In the result, this revisional application is allowed and the orders of the learned District Judge including the impugned order in the misc. appeal from the stage of the admission of the misc. appeal are set aside with a direction upon the learned District Judge, Burdwan, to return the memorandum of appeal to the filing Advocate for its presentation to the proper forum. I made no order as to costs. The stay order granted by this Court stands vacated.

Let a copy of this order be sent immediately, to the courts below.