High Courts(1923) 02 MAD CK 0014

Sri Sri Sri Ramachandra Deo Maharajulungar Maharajah of Jeypore vs Sri Rajah Chetrucherla Gangaraju Bahadur and Others

Madras High Court · Decided on 9 February 1923 · Citation: AIR 1923 Mad 604 : (1923) 45 MLJ 8

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Judgment

61 paragraphs · 1,456 words
1.

In O.S. No. 5 of 1921 on his file the Judicial Assistant Commissioner of the Agency Division dismissed an application for the appointment of a

receiver; and the petitioner before us appealed against that order of dismissal to the Agency Commissioner. The Commissioner, on the ground that

one of the parties to the proceedings was his ward, obtained an order from this Court, transferring the appeal to the District Court, Vizagapatam.

We are now to transfer it from that Court to the High Court.

2.

The transfer to the District Court was made by us administratively and without notice to the petitioner, no dispute as to the correctness or

sufficiency of the ground on which it was proposed being possible; and there is accordingly no reason why it should not be reconsidered at his

instance. He urges that it should be, because this Court had no power to make it or to transfer a case from the file of the Commissioner to that of

any Court except the High Court. This contention no doubt involves that our order of transfer to the District Court was ultra vires and ineffective

and therefore the relief required is a transfer from the file of the Commissioner, from which the appeal has never been removed in any legal way, to

the file of this Court, although that is not what is actually asked for in the petition before us. But it is not suggested by Respondents that there is any

substance in the difference. We therefore turn to the law to ascertain our powers in the matter, observing only that neither side disputes the

necessity for a transfer to some Court other than that of the Agent with reference to his position as guardian of a party.

3.

The general power of the High Court to transfer from the file of a Court, such as that of the Agency Commissioner, which is not subject to the

Code of Civil Procedure, is conferred by Section 107 Government of India Act (5 and 6. Geo. V. c. 6:) and is exerciseable thereunder subject to

fulfilment of two conditions, that (1) the Court from which the transfer is made is subject to the High Court''s appellate jurisdiction (2) the transfer is

to another Court of equal or superior jurisdiction. The first of these conditions is in our opinion complied with, because under Rule XIV of the

agency rules at present in force an appeal lies to the High Court from ""all decrees passed by the Agency Commissioner upon original suits;"" and the

conclusion founded directly on this comprehensive wording cannot be affected by the fact, relied on by respondents as inconsistent with the

application of Section 107(a) and therefore of the section as a whole, that Rule XIX provides for the submission to the High Court of returns, since

that provision may have been made simply for convenience and completeness or with reference to Section 107 proviso.

4.

The respondents have then referred to the decision in Maharajah of Jeypore v. Papayamma I.L.R.(1899) M. 329 as negativing this Court''s

power to transfer, not only to the District Court (consistently with petitioner''s contention), but also to its own file. It is not material that this decision

was given u/s 15 Indian High Court''s Act (24, 25 Vict. c. 104), because that section has been re-enacted in almost identical terms in the section of

the Government of India Act above referred to; but it is material to both the points above stated that a different set of Agency Rules was

promulgated on 9th November 1920 in the Fort St. George Gazette Part 1. p. 1425 and governs the present case. For as regards the point at

present under consideration the appellate jurisdiction of this Court was sustained in the judgment of White C.J. with reference to Rule XXI and

was negatived by Benson I. mainly with reference to the exclusion from that jurisdiction of the ''class of suits referred to in Rule XXII of the Rules

then in force, transfer of a suit of that class being (it may be added) in fact in question. Whilst however the former Rule XXI is reproduced without

substantial difference in the present Rule XIV, the proviso to the present Rule II(3) which deals with cases of the nature of those dealt with in the

former Rule XXII, those in which the succession to or an interest in the estate of a Chief is in dispute, differs from it materially, because it entirely

excludes such cases from the jurisdiction of the Courts and from trial as suits whilst under the former rule their character as suits was maintained,

but, the fact on which Benson J. to some extent relied, the appeal was to the Governor-in-Council and, if it was (as the Rule provided) referred to

the Sudder or High Court for decision, the decree could be carried into execution only with his permission. No such derogation from the High

Court''s Appellate Jurisdiction is recognised in the present Rules, and accordingly we have not to take into consideration the main ground on which

Benson J''s conclusion was founded. It may be true that the suit, in connection with which in the present case the appeal to the Commissioner was

filed, is (as respondents contend) of the description referred to in the former Rule XXII and in the present Rule II(3). But, if so, that is merely

possible ground for objection to the Court''s jurisdiction at the trial; it cannot be urged on the present application and is not material to the disposal

of the general question of construction at present under discussion. On that question we must hold that the High Court has appellate jurisdiction

over the Court of the Agency Commissioner.

5.

The learned judges in Maharajah of Jeypore v. Papayamma ILR (1899) M. 329 were agreed in holding on the second question stated above

that a District Court was not of ""equal or superior jurisdiction"" to that of the Agent (corresponding with the Agency Commissioner in the present

Rules), White, C.J. referring apparently in this connection only to an argument based on the policy of the legislature, on which Benson, J. had relied

generally, and also expressing an opinion against the general power of the High Court to transfer suits from an Agency Court to itself. Regarding

the merits of this argument, which has also been pressed on us, that the policy of the legislature is indicated as being against any power of transfer

by its provision of special statutes and statutory rules adapted to the backward condition of the agency tracts, to which the developed procedure

of the ordinary Courts would be unsuited, it would with all respect be sufficient that the true inference from the existence of such provision is in

favour of discrimination in the use of the power of transfer, not of its absence and of the absence of any means of protecting an Agency litigant

against a disqualified Judge. But we need not pursue this consideration further, because, whatever its weight, when (as those learned Judges

thought) the language of the Rules they were construing admitted of doubt or a secondary interpretation, it is inadmissable to control the clearer

language, with which we are concerned.

6.

The conclusion already reached with reference to the comprehensive wording of Rule XIV, that the High Court has appellate jurisdiction over

the Court of the Agency Commissioner in fact precludes all doubt that the one is superior to the other, the exercise of appellate jurisdiction being

the clearest test of superiority; and only the position of the District Court remains for consideration. In favour of equality (superiority is not alleged)

between it and the Court of the Agency Commissioner there is, so far as we have been shown, only the fact that the original pecuniary jurisdiction

of both is unlimited. On the other hand the powers, which each can use in disposing of cases differ widely, as the learned Judges have shown in

Maharajah of Jeypore v. Papayamma I.L.R.(1899) M. 329; and those differences remain under the Rules now in force. There can be no

comparison and no question of equality between Courts so differently constituted. The conclusion must accordingly be that the High Court, being

superior to the Court of the Agency Commissioner, can transfer a case therefrom to its own file, but not to the file of a District Court, which is not

equal or superior.

7.

This being so, we hold that the appeal numbered as C.M.A. No. 2 of 1922 on the file of the District Court of Vizagapatam has never been

legally transferred from the file of the Agency Commissioner and transfer it to the file of this Court for disposal.