Mohd. Yousuf Palla vs District Judge, Anantnag and Others

G.L. Raina, J.—This petition invokes the writ Jurisdiction so as to undo the decree passed by the civil Court. The circumstances in which

this petition has been laid need to be broadly noticed :-

Petitioner and respondents 5 and 6 are the sons and daughter of respondent Hasan Palla. Respondents Assad Palla and Mst. Hafiza instituted

the civil suit, numbered as 844/94, on 19-12-1994 in the Court of District Judge, Anantnag, whereby they sought a declaration that their father,

Hassan Palla, had orally gifted away the immovable property identified in the plaint (copy annexure-P5) which is situated at village Bhan, Tehsil

Kulgam, District Anantnag. On the presentation of the plaint in his Court, the District Judge transferred it on 17-12-1994 to the Court of Sub-

Judge Anantnag for sub-judge, Kulgam, within whose territorial jurisdiction the property is situate was not available because of his leave of

absence.

While the suit was thus on the dockets of Sub- Judge Anantnag, the parties thereto i.e. the respondents 5 to 7 herein, entered, into the

compromise whereon the Sub-Judge passed the compromise decree on 20-3-1995. The decree acknowledged that the suit property had been

transferred, by oral gift, by respondent I lassan Palla to respondents Assadullah Palla and Mst. Hafiza. Having thus admitted their title over the

gifted property, the father came to be forbidden, by the decree, from interfering in the possession of the donees over the property. This is one

aspect of the controversy.

The petitioner, herein, filed another suit diarised as suit No. 227/94 in this Court which sought declaration against his father, his brothers and

sisters that respondent Hassan Palla had gifted the immovable property situate at Village Bhan. Tehsil Kulgam, to him. He further sought

declaration that any collusive decree or any disposition of the subject matter of that suit by the parents of the petitioner in favour of any other

person be declared illegal and void. This suit got transferred for disposal on 7-9-1995 to the court of District Judge, Anantnag. It is not known as

to what fate was met by this suit.

The petitioner challenges through this petition the validity and the legality of the compromise decree (supra) on the grounds : -

a) that the subject matter of suit being in respect of the immovable property situated within the territorial jurisdiction of Sub-Judge Kulgam, the suit

was thus triable by that Sub-Judge alone;

b) that Sub-Judge Anantnag inherently lacked the jurisdiction to try and hear the suit;

c) that the District Judge had no legal authority either u/s 24 CPC or u/s 29 Civil Courts Act to transfer the suit to Sub-Judge Anantnag;

d) that the proceedings in the suit before the Sub-judge. Anantnag, being without jurisdiction, the compromise decree passed thereon is a nullity.

The petitioner seeks quashment of the plaint, the quashment of the District Judge's order dated; 17-12-1995 and the quashment of the

compromise decree passed in the suit (No, 844 of 1994) by Sub-Judge, Anantnag. Prayer for command, that the compromise decree be not

reflected in the revenue records by forbidding its execution by the decree holders i.e. the respondent Assad Palla and Hafiza herein, is also made.

The petitioner further seeks command so as to for bear respondent Nos. 5 to 7 from dealing, in any manner or mode, with the property in

reference.

The maintainability of the petition is questioned for the non-oificial respondents inter-alia on the grounds that the averments made therein do not

disclose infringement of any right, statutory or constitutional, which could attract the jurisdiction under Article 226 of the Constitution of India read

with section 103 of the Constitution of Jammu & Kashmir; that complicated disputed questions of fact involved in the controversy cannot be

adjudicated upon in the writ jurisdiction; that the questions raised in the petition for decision relate to the title of the property claimed by the

petitioner which can be decided by the civil court alone; that the claim to title projected in the petition in vague and uncertain fashion cannot be

determined in the writ jurisdiction. It is pleaded in specific that the property in question falls within the territorial jurisdiction/limits of District Judge

Anantnag, before whom the suit was filed by respondents 5 and 6 against their father respondent No. 7 herein. The District Judge, Anantnag in

lawful exercise of his powers under Sec, 24 of the CPC transferred the suit to sub-Judge Anantnag as the Sub-Judge at Kulgam was on leave. The

parties thereto entered into the lawful compromise which led to the passing of the challanged compromise decree by the sub-Judge at Anantnag.

It is neither possible nor permissible to adjudicate upon the disputed question of title which is raised in the petition. It has to be borne in mind

that rival claims of title, on the basis of oral gifts, either to the petitioner or to the respondents 5 and 6 said to be made by respondent No.7, cannot

be addressed to in the writ jurisdiction. The validity or legality of the impugned compromise decree cannot be adjudicated in this jurisdiction in so

far as the attack thereto emanates from the disputed rival claims of alleged gift of the property either to the petitioner or to the respondents 5 and 6.

It is at best determinable in this jurisdiction whether the compromise decree could have been passed by the Court which passed It.

It is well settled principle that an order passed by the Court lacking territorial jurisdiction is void and illegal for want of jurisdiction. It is only on

this aspect that attention has to be diverted to determine whether the impugned decree can be quashed in these proceedings.

Section 15 of the CPC directs that every suit shall be instituted in the Court of lowest grade, competent to try it. Sec. 16 thereof lays down

that the suit, where the subject matter is immovable property, shall be Instituted in the Court within the local limits of whose jurisdiction the

immovable property is situated. Section 24 provides that objection to the place of suing shall not be allowed to be taken in the appellate or the

revisional Court unless such objection is taken in the Court of first instance and that too at the earliest possible opportunity ; exception thereto is

that such objection if not taken in the lowest grade can be looked into if it has lead to failure of Justice.

Section 21-A, inserted vide Amendment Act No. XI of 1983 bars the institution of suit challenging the validity of a decree passed in a former

suit between the same parties or under whom they or anyone of them litigate under the same title on any ground based on the objection as to the

place of suing.

Codal provisions indicate that where the subject matter of dispute is in respect of any immovable property, the suit seeking adjudication of that

dispute/disputes has to be instituted in the Court within the local limits of whose jurisdiction, the property is situated. Where the suit about the

determination of rights or interests in the Immovable property is instituted in any other Court beyond the local limits of the Court where the

property is situated, the objection as to place of suing has to be taken at the earliest before the Court of first instance. Section 21-A bars the filing

of the suit challenging the validity of a decree passed in a former suit between the same parties or between the parties under whom they or any one

of them claim on any ground based on objection to the place of suing. This bar applies to the parties to the suit or between the parties under whom

they or any one of them claim. Section 21-A cannot be said to bar the institution of the suit by a third party to challenge the validity of a decree

passed in a former suit on the ground of lack of territorial jurisdiction. Put in other words, a person who is not a party to the former suit or who

does not claim through such party to the former suit can challenge the compromise decree through a separate suit on the ground of lack of

territorial Jurisdiction of the Court which passed it.

The compromise decree impugned in this petition arose out of that suit to which the petitioner was not a party, nor has he projected his claim

or interest therein through any of the parties in the former suit. His claim appears to be that he has since become owner of the property by virtue of

an oral gift made in his favour. The suit to challenge the compromise decree in the former suit is not thus perhaps barred by Section 21-A of the

CPC. In this situation, the contention appears to be forceful that efficacious remedy against the Impugned decree being available through the civil

suit, the writ jurisdiction cannot be invoked and that too about the controversy which is based on controverted questions of fact.

The uncontroverted factual position is, that the projected dispute of title and possession, etc. Is with respect to immovable property that is

situated within the territorial jurisdiction of sub-Judge Kulgam. The property falls within the jurisdiction of District Judge Anantnag. Section 29 of

the Civil Courts Act is :--

Power to distribute business :-- Not withstanding anything contained in the Code of Civil Procedure, every District Judge may by written order

direct that any civil business cognizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he

thinks fit:

Provided that no direction issued under this section shall empower any Court to exercise any powers or deal with any business beyond the limits of

its jurisdiction.

The perusal of this statutory provision, goes to show that though the District Judge has the power to direct, by a written order, that any civil

business cognizable by his Court and the Courts under his control shall be distributed amongst such Courts as he thinks fit, but the rider attached to

this provision somehow limits that discretion in that the proviso provides that no direction shall be issued by the district Judge to empower any

Court to exercise any power or deal with any business beyond the limits of its jurisdiction. The word ""beyond limits of its jurisdiction"" have two

connotations; firstly, that the District Judge cannot assign or distribute any civil business to any Court, which falls beyond its own jurisdiction,

pecuniary or territorial, and secondly the word 'jurisdiction' as it appears in the proviso can either be territorial Jurisdiction or the pecuniary

jurisdiction. In so far as the pecuniary jurisdiction is concerned it cannot be disputed that the District Judge cannot assign any civil business to any

Court subordinate to it which is beyond the pecuniary Jurisdiction of such subordinate Court. The power of the District Judge to distribute civil

business within his territorial jurisdiction is not completely restricted by the words 'limits of its jurisdiction' as occur in the proviso to Section 29 of

the Act, It is in this context that reference has to be made to Sec. 22 of the Act which says that the local limits of the jurisdiction of a subordinate

Judge or Munsiff shall be such as the High Court may define, Sub-section (2) of this section warrants reference :--

When the High Court posts a subordinate Judge or a Munsiff to a district the local limits of the district shall, in the absence of any direction to the

contrary, be deemed to be the local limits of his jurisdiction.

The extracted statutory provision goes to show that the Sub-Judge being posted to the District the limits of his district shall be deemed to be

the local limits of his district unless any direction to the contrary is issued by the High Court. Put in other words, the Sub-Judge or a Munsiff posted

to a district shall be deemed to have the limits of his jurisdiction for the whole district unless there is any direction to the contrary by the High Court.

Thus the posting of a Sub-Judge to District Anantnag will empower the Sub-Judge to exercise jurisdiction for the whole district as such Sub-Judge

unless the High Court issue a direction to the contrary, by fixing his jurisdiction to a particular area or part of the district. The judicial notice can

none-the-less be taken of the fact that the High Court has defined the local limits of Jurisdiction of Sub-Judge, Anantnag and Sub-Judge Kulgam

which are both subordinate to the District Judge, Anantnag.

It is to be noticed that the suit where from the impugned compromise decree emerged had been, as a matter of fact, addressed to and

presented in the Court of District Judge, Anantnag. The immovable property where-about the dispute was raised in the suit, fell within the territorial

jurisdiction of District Judge, Anantnag. As Section 15 of the Code required the suit to be instituted in the Court of lowest grade competent to try

it, so the District Judge having taken note of the fact that the Sub-Judge at Kulgam, within whose territorial jurisdiction the subject matter of the suit

fell was on leave, so he by exercise of his powers under Section24 of the CPC transferred it to the Court of Sub-Judge Anantnag. For the sake of

ready reference, it is worthwhile to quote the order of the District Judge :

17-12-1994 : The above entitled suit has been presented by the counsel for the plaintiff stating therein that the learned Sub-Judge Kulgam is on

leave. He has prayed that the suit be transferred to some other Court for disposal.

This is fact that the learned Sub-Judge Kulgam is on leave, therefore, the suit is transferred to the Court of learned Sub-Judge, Anantnag for

disposal in accordance with law.

Announced :

Sd/- District Judge,

Anantnag.""  

After this order was passed by the District Judge, the suit got on to the dockets of Sub-Judge, Anantnag, where it was diarised as suit No.844

of 1994. The parties to this suit entered into the compromise and the trial of the suit culminated in the compromise decree being passed on 20-3-

1995 by the Sub-Judge. The statutory provision that is the proviso to Section 29 of the Act has to be appreciated in the light of the circumstances

in which the District Judge transferred the suit to Sub-Judge, Anantnag, notwithstanding that the suit related to immovable property that was

situated within the local limits' of Sub-Judge, Kulgam. The Presiding Officer of Sub-Judge's Court Kulgam was not available, so the Court was not

sitting. The District Judge having entertained the plaint transferred it to Sub-Judge Anantnag which was in the given situation the lowest grade Court

available to try it, more-so when the valuation of the suit as given in the plaint did not exceed the pecuniary jurisdiction of the sub-Judge. The word

'jurisdiction' as occurs in the proviso, supra, has in this situation reference to pecuniary jurisdiction and not territorial jurisdiction, as otherwise by

giving such an interpretation, the District Judge was obliged to have retained the suit on his own dockets notwithstanding that a subordinate Court

was available which could try it 'on being transferred for trial. This is one aspect of the matter.

Now the General powers of transfer and withdrawal.

Section 24 of the CPC provided that either on the application of any of the parties or on its own motion, the High Court or the District Court

may at any stage transfer any suit, appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it and competent

to try or dispose of the same. We are not here concerned with the rest of the provisions of the Section. Section 24(1)(a) empowers thus the

District Court to transfer any suit, appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it and competent

to try and dispose of the same. The prerequisite for exercise of the powers under this sub-section is that the matter should be pending before the

District Judge and that the subordinate Court to which it transfers the matter be competent to try and dispose of the same.

Here in this case, the suit was as noted herebefore, presented in the Court of District Judge at Anantnag. The endorsement of presentation

leaves no scope for the argument that the suit was not pending before the District Judge when it passed the order, transferring it for disposal, to

Sub-Judge. Anantnag. The Sub-Judge Anantnag did not lack pecuniary jurisdiction to try the suit. Put in other words, the valuation of the suit was

well within the pecuniary limits of Sub-Judge. True that the subject matter of the suit i.e. immovable property fell within the local limits of Sub-

Judge Kulgam but in the scheme of the Code as indicated by Section 21 and 21-A goes to show that the lack of territorial jurisdiction is not a

ground to assail the subordinate Courts jurisdiction, to which the matter is transferred by the High Court or the District Judge from its board. Any

interpretation to the contrary would incapacitate the High Court or the District Court to transfer or assign any civil matter pending before it for trial

or disposal to any Court subordinate thereto.

Occasions and circumstances may arise where a subordinate Court, seized of the civil matter, gives cause for seeking transfer of the matter to

any other Court. If the interpretation sought to be put on the codal and the statutory provisions, referred to herebefore, is accepted, then the High

Court or the District Court cannot shift the venue of the trial of the suit in any case beyond the local limits of the Court seized of the matter, against

whom a party may have a genuine grievance, requiring the orders to divest that Court of the jurisdiction to deal with the matter. The legal

provisions have to be harmoniously interpreted so as to leave the scope for redressal of the grievances, notwithstanding the bar of territorial

jurisdiction. Yet again occlusions may arise where the local Court within whose jurisdiction the subject matter of the suit falls is non-functional on

any count or for any reason, then the District Court or High Court cannot be held to be powerless to transfer and assign the matter to any other

Court which has otherwise the pecuniary jurisdiction to deal with the matter. I am, therefore, of the considered opinion that the challenge thrown to

the impugned decree on the ground of lack of territorial jurisdiction of Sub-Judge Anantnag is in the facts and circumstances totally misconceived.

The conjoint reading of the statutory provisions and the codal requirements goes to show that as Sub-Judge Kulgam was not available on the

day the suit was presented in the District Court, the latter was competent and well within its powers to transfer it from its board to the Court of

Sub-Judge, Anantnag and the Sub-Judge, Anantnag was thus clothed with the powers to try and dispose of the suit, notwithstanding that the

subject matter of the suit i.e. the immovable property, was beyond the local limits of his jurisdiction. I am thus unable to accept the contention that

the impugned decree is open to be challanged on the ground of lack of jurisdiction of the Court which passed it. The contention to this extent has

to be repelled.

23A. The proceedings in the suit before Sub Judge Anantnag cannot be said to be without jurisdiction as the suit had been transferred by District

Judge, Anantnag from his own board, when it was presented in his Court. The District Judge was well within his legal authority to transfer the suit

to Sub-Judge Anantnag as the concerned Sub- Judge at Kulgam was non-functional on that particular date because of the Presiding Officer being

on leave. The Sub-Judge Anantnag thus was conferred the jurisdiction, notwithstanding the territorial limitation, to try the suit by the District Judge.

It is thus far-fetched to contend that the plaint in the suit or the proceedings therein, taken by Sub-Judge Anantnag and the decree passed on

compromise, deserve to be quashed on the ground of lack of jurisdiction by the Court which passed it.

Before parting, I would like to quote the Hon'ble Apex Court,

..... It is well settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a

Court to try a case. Competence of a Court to try the case goes to the very root of the jurisdiction and where it is lacking, it is a case of lack of

jurisdiction. On the other hand, an objection as to the local jurisdiction of the Court can be waived and this principle has been given a statutory

recognition by enactments like Section 21 of the CPC."" Seth Hiralal Patni Vs. Sri Kali Nath, .

These observations must set at rest the controversy raised herein. This Court cannot even otherwise sit in its writ jurisdiction to determine the

validity of the impugned decree passed by the Court to which it was lawfully and validly transferred by the District Court.

The petition is misconceived and is accordingly hereby dismissed, but without any order as to costs.