Lala Tota Ram vs State

Jaswant Singh, J.

(1) The plaintiff who is a contractor originally brought a suit on January 14, 1966, in the court of the District Judge, Udbampur, for rendition of

accounts relating to the execution of the work of construction of Motor Road from Fore by to the site of power House of the Cheneni Hydel

Project (RD O, to RD 10,000) alloted to him vide agreement dated December 29, 1964, valuing it for the purpose of court fees and jurisdiction at

Rs. 5,1000/ A preliminary decree directing accounts to be taken was passed in the said suit by the District Judge on July 25. 1966. On appeal a

Division Bench of this court vide its judgment dated July 10, L970, set aside the preliminary decree passed by the District Judge holding that the

suit for rendition of accounts was not maintainable. The Bench however, granted an opportunity to the plaintiff to amend his plaint by claiming a

specific sum and ""putting a proper valuation on his claim in the trial court."" Pursuant to the aforesaid judgment of the Division Bench of this court

the amended plaint claiming Rs. 23, 785.42 from the defendant was filed in the court of the District Judge on October 3. 1970. On an objection

however, being taken on behalf of the defendant to the effect that the valuation of the suit being in excess of the pecuniary jurisdiction of the court,

the plaint ought to be returned for presentation to the proper court under Order 7 Rule 19 (1) of the Code of Civil Procedure, the District Judge

passed an order on November 24, 1970, returning the plaint for presentation to the proper court. Thereafter the plaintiff presented the plaint on the

original side of this court on November 25, 1970, After the filing of the written statement by the defendant and the framing of the issue a prayer

was made on behalf of the plaintiff before the learned Single Judge for transfer of the suit to the court of the District Judge, Udhampur, on the

ground that the cause of action having arisen within the territorial jurisdiction of that court, it would tend to the convenience of the parties if the suit

is tried in that court. This prayer was resisted on behalf of the defendant on the ground that the valuation of the suit being above rupees twenty

thousand, it had not only to be instituted in but had also to be tried and disposed of by this court. Reliance in support of this objection was placed

upon Section 56 (2) of the Constitution Act, 1996 (Act XIV of 1996 Samvat; 1939 A. D.) and clause 10 of the Letters Patent issued to the High

Court in 1943 AD. It was on the other hand contended by the learned counsel for the plaintiff that the only restriction contained in the aforesaid

provisions of law relied upon by the plaintiff was regarding the institution of a suit of which the value is Rs. 20.000/ or above and not regarding its

trial and determination by the District Court which has unlimited pecuniary jurisdiction under Section 20 of the Civil Courts Act, 1877 (1920 A D).

Feeling that the point raised before him involved an important question relating to the interpretation of Section 56 (2) of the Constitution Act. 1966,

Clause 10 of the Letters Patent and Section 20 of Civil Courts Act, 1977, (1920 A. D ) D. D. Thakur J has referred it for decision to this Bench.

It is how the matter is before us.

(2) The learned counsel for the parties have reiterated the submissions made by them before the learned single Judge.

(3) We have given our anxious consideration to the submission of the learned counsel for the parties.

(4) It will be seen that the jurisdiction exercised by the High Court in relation to the administration of justice immediately before commencement of

the Constitution of Jammu and Kashmir which came into force on January 25, 1957 was not only left intact but was specifically saved by Section

102 of the constitution. Now the jurisdiction in relation to Civil Suits and original proceeding was before the coming into force of the Constitution

of Jammu and Kashmir derived by the High Court from Section 56 (2) of the Jammu and Kashmir Constitution Act, 1996, and clause 10 of the

Letters Patent which are reproduced below for facility of reference :

S. 56 of the Constitution of J & K.

...... ....... ....... ....... .......

(2) The High Court shall have jurisdiction to hear and determine any original civil suit or other proceeding of which the value is not less than rupees

twenty thousand and every such suit or proceeding shall be instituted in the High Court.

Clause 10 of the Letters Patent (Civil original Jurisdiction of the High Court)

And we do hereby ordain that the said High Court of Judicature shall have jurisdiction to hear and determine any suit or original proceeding of

which the value is not less then rupees twenty thousand where the said suit or original proceeding relates to any right, title, or obligation arising in

the towns of Srinagar and Jammu or anywhere else within our State and notwithstanding anything contained in any Section of the Code of Civil

Procedure every such suit or proceeding shall be instituted in the said High Court.

(5) The above quoted provisions which are identical consist of two parts. The first part is in the nature of an enabling provision. It appears to have

been enacted to confer original jurisdiction on the high Court. But for this provision the High Court which, no doubt, enjoyed extraordinary original

jurisdiction under Section 11 of the Civil Courts Act, 1977 (1920 A. D) would not have been in a position to entertain any civil or suit or original

civil proceeding as a court of ordinary original jurisdiction. The second part contains a rule of procedure. It regulates the forum for institution of civil

suits and original proceedings by imposing an obligation on the suitors to file the aforesaid suits and origins! proceeding of the value of rupees

twenty thousand and above on the original side of the High Court so that it may see as to which case of such a high valuation can be safely

entrusted to the District Court for trial and determination, but does not oust or unllify the jurisdiction possessed by the District Court to try and

determine suits of any value. This position would be clear from a perusal of Sections 19 and 20 of the Civil Courts Act, 1977. According to

section 19 which is a deeming provision, the court of the District Judge has to be treated as the principal civil court of original jurisdiction in the

District. Section 2J lays down that except as otherwise provided by any enactment for the time being in force, the court of the District Judge shall

have jurisdiction in original suits without limit as regards the value, Now the requirement of the institution of the civil suit and original proceedings of

the value of rupees twenty thousand and above in the High Court enjoined by Section 56 (2) of the Constitution Act, 1996, and Clause 10 of the

letters Patent cannot by any stretch of imagination be taken to rob the District court of its jurisdiction to try and determine them Reference a in this

connection may be made to a decision of the Calcutta High Court in Mohini Mohan Das and ors. v. Kunjabehari and ors, A. I, R. 1943 Calcutta

450, where while dealing with the effect of Section 15 of the Code of Civil Procedure, which provides that every suit must be filed in the Court of

the lowest grade competent to try it, a Division Bench of that court said:

Section 15 lays down a rule of procedure and not jurisdiction and it does not divest any court of jurisdiction which it otherwise possesses under

the Statute constituting such courts.

(6) It would also be useful at this stage to recall that it is a well settled canon of construction of statutes that exclusion of jurisdiction of an existing

competent civil court will not be taken for granted in the absence of express words in or necessary intendment of the statutory provision to that

effect. Reference in this connection be made to A. I. R. 1956 Madras. 146, Again in Prosunno Coomar Paul v. Koyhsh Chunder Paul, 8 W. R,

429, 436, Peacock C. J, said :

The jurisdiction of the originary courts of judicature is not to be taken away by putting a construction upon an Act of the legislature which does not

clearly say that it was the intention of the legislature to deprive such courts of their jurisdiction."" ,

(7) It is also well recognized that if there be any doubt about the ousting of jurisdiction of an existing court, the court would lean to such an

interpretation which would maintain the existing jurisdiction. Reference in this connection may with advantage made to a case reported as 56 CWN

566.

(8) It would be also profitable to bear in mind that the expression ""institute'' ""hear"" or ''try"" and ''determine"" have different connotations and are

used to indicate different stages of litigation.

(9) In view of the above discussion. I am clearly of the opinion that after a suit of the value of rupees twenty thousand or above is instituted in the

High Court it can be transferred to the District Judge for trial and disposal. This view receives further support from the phraseology of Section 24

(1) (a) of the Code of Civil procedure, 1977(1920 A. D.) which runs thus :

24(1) on the application to 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.

(10) The reference is answered accordingly. Let the case go back to the learned Single Judge, for disposal in accordance with law.

Ali C. J.

I entirely agree with the judgment proposed by my learned brother Jaswant Singh J. and would like to add a few lines of my own on certain

aspects of the case.

The sole point for determination in this case is as to the scope and ambit of S. 56 of the Jammu and Kashmir Constitution Act of 1996 and the

provisions of our Letter Patent in so far as they are inconsistent with S 20 of the Civil Courts Act. My learned brother has pointed out the history

and the background against which both these provisions have been made. It seems to me that S. 20 of the Civil Courts Act is the general law

which gives unlimited jurisdiction to the court of the District Judge to try suits of any value. Before the Letters Patent and S. 56 of the Constitution

Act. of 1996, the High Court had no original jurisdiction to try suits and this power was conferred on the High Court by virtue of the Constitution

Act of 1996 and incorporated in the Letters Patent of this court. A careful perusal of S 56 (2) which runs thus :

The High Court shall have jurisdiction to hear and determine any original civil suit or other proceeding of which the value is not less than Rs 20.

000/ and every such suit or proceeding shall be instituted in the High Court

shows that the provision runs into two separate and distinct parts. The first part is merely an enabling provision which confers the power on the

High Court to bear and determine any original suit a power which hitherto had not been exercised by the High Court. The first part therefore does

empower the High Court to hear and determine original suits or proceeding, provided the value of these suits is Rs. 20,000/ or more. The second

Dart, however, modifies a portion of S. 20 of the Civil Courts Act by providing that any suit whose value is Rs, 20.000/ or more shall not be

instituted in the district court but in the High Court. To this extent and to this extent alone the provisions of S 20 of the Civil Courts Act have been

modified both by the Constitution Aft and the Letters Patent of this court, in other words the position is that whereas the District Judge continues to

be competent to hear and try original suits of any value, he cannot entertain suits of the value of Rs. 20,000/ or over unless such suits after being

instituted in the High Court are transferred to him. Thus the intention of His Highness in engrafting S. 56 of the Constitution Act appears to have

been to insist that suits of a particular valuation, namely, suits of the value of Rs. 20,000/ or over shall be instituted only in the High Court and not in

the district court without disturbing the right of the district court to hear and determine such suits. Thus the position is that suits of the value of Rs.

20.000/ or over would have to be instituted in the High Court and not in the district court, but once the suits are instituted in the High Court the bar

of the District Court to entertain them is completely removed and those suits can be heard by the district court if transferred by the High Court. The

policy behind conferring powers of transfer of such suit to the district court by the High Court is that the High Court will determine such types of

suits whose value is Rs, 20,000/ or more having regard to the nature of the parties in the cases, the complexities of the questions involved in the

suits and the stakes involved in the causes. Thus the High Court can retain those suits on its own file which involve complicated questions of law or

important rights or where the valuation is extremely high, For these reasons I am unable to agree with the Addl. Advocate General that the effect of

S. 56 is that suit of the valuation of Rs. 20,000/ or above should not only be instituted in the High Court but should also be heard and determined

by it. In fact the provisions of S. 56 are not contradictory but complementary to S. 20 of the Civil courts Act, and as I have already pointed out the

first part of S. 56 regarding bearing and determining the suits and the second part of the section regarding institution of the suit refer to different

contingencies and have distinct underlying objects.

(3) I, therefore, answer the question accordingly.

Sd/ Chief Justice Per Thakur J.

I agree with the judgment proposed by my lord the Chief Justice. I have gone through the judgment prepared by my brother, Jaswant Singh J. I

agree with the conclusion arrived at by him but am of the opinion that the principle contained in S. 15 Civil P. C has no room for its application to

justify the conclusion . Similarly the principle regarding the ouster of the jurisdiction of the civil courts too is beside the point. The case hinges upon

the question as to how the seemingly conflicting provisions of the Constitution Act. of 1996, the Letters Patent of this court and those of the Civil

Courts Act can be allowed to exist in harmony with each other, without negativing the effect of any of these provisions. I am in complete agreement

wite that part of the judgment of my brother, Jaswant Singh J. which relates to the harmonious interpretation of these provisions. The other

principles from which support has be""n borrowed appear to me to be wholly inapplicable.