Pana Lal Bahal vs Kulbushan Bahal and Others

I.K. Kotwal, J.—This revision petition must succeed on the short point that the order impugned in the petition is without jurisdiction.

Bihari Lal respondent No. 2 filed a suit in the court of Second Additional Munsiff, Srinagar on 23-2-1968 against the Jammu and Kashmir

Bank, the petitioner and Harbans Lal. respondent No. 3 for a declaration to the effect that the petitioner and respondents 2 & 3 were the only

heirs and legal representatives of their father. Bishember Dass who was alleged to have been killed in the communal riots of 1947. This suit was

not resisted either by the petitioner or respondent No. 3 and eventually a decree came to be passed against all the defendants in the suit on 22-7-

1968. The decree was thereafter executed. Some land belonging to the deceased Bishember Dass was taken possession of and his locker in the

Jammu and Kashmir Bank was opened and the property lying therein taken away. On 15-12-1970 i.e. nearly two years after the decree came to

be passed an application was moved by Kulbushan respondent No. 1 that the petitioner and respondents 2 & 3 alone were not the heirs of their

father Bishember Dass, but respondent No. 1 was also one of the sons of Bishember Dass, besides his three daughters all of whom were alive. It

was stated in the application that the decree had been obtained by respondent No. 2 in collusion with the petitioner and respondent No. 3 either

by creating false evidence or by making false statements in the court by the petitioner and respondents 2 & 3 to their own knowledge. This

application was made u/s 476 Cr. P.C. with a prayer that the Second Additional Munsiff, Srinagar who had finally disposed of the suit may lodge a

complaint against the petitioner and respondents 2 & 3 under Sections 193, 199, 200, 209 read with Section 120-B R.P.C. Notice was issued to

the petitioner and respondents 2 & 3 by the Second Additional Munsiff, Srinagar who pursuant to the notice appeared in his court and filed their

objections to the application of respondent No. 1. The trial court considered the application as well as the objections filed thereto and after hearing

the learned Counsel for the parties at length declined to grant the prayer of respondent No. 1 vide its order dated 9-9-1975. It is not necessary for

me to mention herein the grounds upon which the application was dismissed by the trial court as in my opinion the reasons given by the courts

below have no role to play in the final disposal of this revision petition considering the view which I propose to take herein. An appeal was

accordingly taken u/s 476-B Cr. P.C. by respondent No. 1 to Sub-Judge, Chief Judicial Magistrate, Srinagar who being of the view that the order

passed by the trial court was not legally correct, accepted the same, overset the order of the trial court and remanded the case back to it for

further proceedings in accordance with law. It is this order of the lower appellate court passed on 14-10-1976 which has been assailed in this

revision petition.

Mr. Raina appearing for the petitioner has taken a short point before me. He has contended that an appeal against the order of Second

Additional Munsiff, Srinagar ordinarily lay to the District Judge, Srinagar and not to the Sub-Judge. Chief Judicial Magistrate, Srinagar and as such

the order impugned in the revision petition was without jurisdiction. Mr. K. N. Bhat appearing for respondent No. 1 has on the other hand argued

that the value of the suit decreed by the trial court not exceeding Rs. 500/- Sub-Judge, Chief Judicial Magistrate, Srinagar was competent to

entertain and hear an appeal against the said decree, he having been invested with the powers to hear such appeals by the High Court in exercise

of its powers under Sub-section (5) of Section 34 of the Civil Courts Act.

When any civil, revenue or criminal court is of the opinion that it is expedient in the interests of justice that an enquiry should be made into any

offence referred to in Section 195 Cr. P.C. Sub-section (1) Clause (b) or Clause (c), which appears to have been committed in or in relation to a

proceeding in that court, such court may, after such preliminary enquiry as it thinks necessary record a finding to that effect and lodge a complaint

thereof in writing to a magistrate of the first class having jurisdiction to try the same. This power u/s 476-A may also be exercised by the Court to

which such court is subordinate within the meaning of Sub-section (3) to Section 195 Cr. P.C. Where such a complaint has been lodged or where

the court has refused to lodge such a complaint, the party aggrieved may appeal to the court to which such former court is subordinate within the

meaning of Sub-section (3) to Section 195 Cr. P.C. Sub-section (3) of Section 195 reads thus:

(3) For the purposes of this section. a court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable

decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court

having ordinary original civil jurisdiction within the local limits of whose jurisdiction such civil Court is situate.

Mr. Raina's contention is that an appeal from a decree passed by a Munsiff in a civil suit would ordinarily lie to the District Judge and not to the

Sub Judge, C. J. M. The Sub Judge. C J M was authorised to hear an appeal against the judgments and orders of a Munsiff only under a special

notification issued by the High Court under Sub-section (5) of Section 34 of the Civil Courts Act. According to the learned Counsel the legislature

would have surely omitted to use the word ""ordinarily"" if its intention would have been to authorise any court competent to hear the appeal from a

judgment and decree of a subordinate court. The word ""ordinarily"" according to the learned Counsel has a specific significance and the same is not

to be ignored or lost sight of at the time of judging as to whether the appeal had been preferred to a competent court u/s 476-B Cr. P.C. In order

to appreciate the contention raised by the learned Counsel it is necessary to notice Section 34 of the Civil Courts Act. Shorn of un-essentials

Section 34 of the Civil Courts Act is reproduced as below:

(1) Save as aforesaid an appeal from a decree or order of a Subordinate Judge shall lie -

a) to the District Judge where the value of the original suit in which the decree or order was made did not exceed two thousand and five hundred

rupees; and

b) to the High Court in any other case.

(2) Save as aforesaid, an appeal from a decree or order of a Munsiff shall lie to the District Judge.

(3) The High Court may, by notification in the Govt. Gazette, direct that appeals lying to the District Court under Sub-section (2) from all or any of

the decrees or orders passed in an original suit by any Munsiff shall be preferred to such Subordinate Judge as may be mentioned in the

notification, and the appeals shall thereupon be preferred accordingly and the court of such Subordinate Judge shall be deemed to be a District

Court for the purposes of all appeals so preferred.

On a plain reading of Sub-section (2) of Section 34 an appeal from a decree or order of a Munsiff shall undoubtedly lie to the District Judge.

Sub-section (5) however authorises the High Court to empower a Subordinate Judge to hear appeals from certain classes of decrees passed by a

Munsiff. But this the High Court can do by only issuing a notification in the Govt. Gazette. In the absence of such a notification therefore the

subordinate Judge shall have no jurisdiction to entertain an appeal from the judgment or order of a Munsiff which would ordinarily lie to the District

Judge.

In support of his argument Mr. Eaina has also made a reference to a case Kuldip Singh Vs. The State of Punjab and Another, . The facts of the

case before the Supreme Court were these:

The second respondent in the case had obtained a decree on a mortgage against the appellant from the court of a Subordinate Judge of the first

class. The appellant had produced a receipt in the trial court apparently evidencing payment of the mortgage money to the mortgagee. The receipt

was found to have been fabricated and the statement of the appellant in support of it was also held to be false. After the decree was confirmed by

the High Court in appeal, an application u/s 476 Cr. P.C. was made by the second respondent to the Subordinate Judge first class for filing a

complaint against the appellant under Sections 193 and 471 I.P.C. Before any order could be passed on the application the Subordinate Judge

first class was transferred from that court who was later on succeeded by another sub judge but only of the fourth class. The successor subordinate

Judge therefore declined to take any action on the application and referred the same to the District Judge. The District Judge transferred the

application to the Senior Subordinate Judge of the First class. This order was challenged in appeal by the appellant before the Additional District

Judge who accepted the appeal and held that the Senior Subordinate Judge was not the successor of the subordinate Judge first class. On revision,

however, a single Judge of the High Court of Punjab held that the Senior Subordinate Judge was competent to lodge the complaint end he,

therefore, set aside the order of the Additional District Judge. In appeal three points were raised before the Supreme Court out of which one was

as to whether the senior subordinate was competent to lodge the complaint. A notification issued by the High Court of Punjab in exercise of its

powers under Sub-section (3) of Section 39; Punjab Courts Act of 1918 was brought to the notice of the Supreme Court under which power to

hear appeals in certain cases against the decrees and orders passed by a Subordinate Judge of first class were conferred upon the senior Sub

Judge of the first class and it was urged that the Senior Sub Judge was competent to lodge a complaint u/s 476-A Cr. P.C. It was under these

circumstances that the scope and ambit of Sub-section (3) of Section 195 Cr. P.C. more particularly the real connotation of the word ordinarily

came to be considered by the Supreme Court. It may be pointed out that the provisions of Sections 195, 476, 476-A and 476-B of the State

Code of Cri. Procedure are similar to the provisions of Sections 195, 476, 476-A and 476-B of the Central Act as it then was. Again the

provisions of Sub-section (5) of Section 34 of the State Civil Courts Act are also in pari materia with the provisions contained in Sub-section (3)

of Section 39 of the Punjab Courts Act of 1918. The Supreme Court held that the expression, ""to which appeals ordinarily lie"" used in Sub-section

(3) of Section 195 did not include the appeals the power to hear which was conferred by virtue of any special notification e. g. notification issued

by the High Court under Sub-section (3) of Section 39 of the Punjab Courts Act. In holding so the Court observed as below (at p. 786 of Cri LJ)

: ""There are thus three forums of appeal from the Court of the Subordinate Judge depending on the nature of the suit and its value. The question is

whether in each of these three classes of cases the appeal can be said to lie ""ordinarily"" to one or other of these appellate tribunals.

Applying the rule we have set out above, the appeal to the Senior Subordinate Judge cannot be termed ""ordinary"" because the special appellate

jurisdiction conferred by the Notification is not the ordinary jurisdiction of the Senior Subordinate Judge but an additional power which can only be

exercised in a certain limited class of cases.

It is not a power common to all Subordinate Judges nor even to all Senior Subordinate Judges. Therefore, it cannot be said that appeals from the

Courts of the various Subordinate Judges ""ordinarily"" lie to the Senior Subordinate Judge. Consequently, that Court is not one of the appellate

tribunals contemplated by Section 195(3), Criminal P. C. and its proviso.

But appeals do ""ordinarily"" lie either to the District Court or the High Court; and as the District Court is the lower of these two tribunals that must

be regarded as the appellate authority for the purposes of Section 476-B, Criminal P. C.

This authority undoubtedly supports the argument advanced by Mr. Raina. Just as in the case before the Supreme Court the Senior Sub Judge

had the power to hear appeals from the decrees and orders of a subordinate judge of the first class, it being empowered by the High Court of

Punjab by virtue of a notification, the Sub Judge, CJM in the present case too had the powers to hear appeals from the decrees and orders of a

Munsiff by virtue of a notification issued by the High Court under Sub-section (5) of Section 34 of the State Civil Courts Act. Power to hear

appeals by virtue of such notification did not mean that appeals would ordinarily lie to the Sub Judge, CJM from the decrees Or orders passed by

a Munsiff within the meaning of Sub-section (3) of Section 195 Cr. P.C. as held by the Supreme Court in Kuldip Singh Vs. The State of Punjab

and Another, .

Mr. Bhat has on the other hand placed reliance upon certain observations made by Sulaiman C. J. in Shiva Prasad Vs. Pahlad Singh, which

read thus (at p. 697):

We may however point out that where by the special notification mentioned in Section 21, Sub-section (4), Civil Courts Act, appeals from decrees

and orders of Munsiffs are directed to be preferred to the Court of such a subordinate Judge, he would become the Court to which appeals

ordinarily lie from the appealable decrees of the former Court u/s 195, Sub-section (2) and therefore an appeal would lie to him u/s 476-B. In such

a case there will be no question of the appeal being transferred by the District Judge to the Court of the Subordinate Judge, as the appeal would be

filed in his Court direct.

These observations no doubt support the contention raised by Mr. Bhat. But in view of the dictum of the Supreme Court in Kuldip Singh's case

(Supra) the view taken by the Allahabad High Court in the said case must be deemed to have been impliedly overruled.

For the foregoing reasons this revision petition is allowed and the order of Sub-Judge, C. J. M., Srinagar dated 14-10-1976 set aside.