TMI Blog1964 (2) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... nge the view that was taken by me earlier in the case cited above. 3. In the course of arguments before us. it appears to have been assumed that, whenever a judicial function is being exercised by any person, that person can only be described as, and must belong to, one of the two classes, a Court or a persona designata. I do not consider that these are the only two classes by which such authorities must necessarily be covered. The word 'tribunal' has been used in the Displaced Persons (Debts Adjustment) Act, 1951 (hereinafter referred to as the Act), with which I am concerned, and has also been used in other statutes and I do not see why every tribunal must necessarily be covered by either the word 'Court' or the word 'persona designata'. The Constitution itself, in Article 227, mentions Courts and tribunals and thus seems to distinguish between a Court and a tribunal without specifically envisaging that every tribunal must necessarily be a persona designata. In my opinion, therefore, it is not at all necessary in this case to go into the question whether a tribunal under the Act is a persona designata or not. The question that is to be seen is whether i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act is to be exercised by the Civil Courts specified by the State Government by a notification in the official gazette. 7. The next two sections that may be considered are Sections 25 and 26 of the Act. Section 25 lays down that all proceedings under the Act shall be regulated by the provisions contained in the Civil Procedure Code. It is significant that the language used in this section confines the applicability of the Civil Procedure Code to the limited extent that proceedings under the Act are to be regulated by its provisions. The Civil Procedure Code has not as such been made applicable to the tribunals. It is not laid down that the Civil Procedure Code shall govern the jurisdiction and proceedings of the tribunals under the Act. The significance attaches to the circumstances that provision has been made only for regulating proceedings under the Act in accordance with the provisions of the Civil Procedure Code which means that once a proceeding under the Act has been initiated, thereafter the provisions of the Civil Procedure Code are made applicable to that proceeding but initiation of proceedings has to take place under the Act and not under the Civil Procedure Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same manner as it could have done if, it were a decree or order passed by it as a Civil Court. Thus a fiction of law is introduced to the effect that, for purposes' of execution, the tribunal is to treat the decree or order passed by it in that capacity as a decree or order passed by it in the capacity of a Civil Court. This provision was only necessitated because a distinction was sought to be made clearly between a tribunal under the Act and a Civil Court. The Legislature clearly indicated that the tribunal functioning under the Act did not function as a Civil Court under the Civil Procedure Code. 9. Then, in Section 35 of the Act, provision has been made for taxation of lawyers' fees When giving the power to the tribunal to direct payment of costs in respect of fees to any legal practitioner employed in any proceeding before it the provision made is that the tribunal is to be guided by the rules for the time being in force regulating the payment of such costs in proceedings of a similar nature before the ordinary Civil Courts and there is the additional bar that the tribunal shall not award more than one-half of what, in its opinion, the costs before the Civil Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tachment before judgment and, consequently, had to enact this Section 54 as an -exception to Section 25 of the Act. 12. Reliance has been placed on behalf of the applicant on a decision of their Lordships of the Privy Council in Rajah Nilmoni Singh Deo Bahadur v. Taranath Mookerjee 9 Ind App 174 (PC). The principle laid down by their Lordships of the Privy Council was as follows:- It must be allowed that in those sections there is a certain distinction between the Civil Courts there spoken of and the Rent Courts established by the Act, and that the Civil Courts referred to in Section 77 and the kindred sections mean Civil Courts exercising all the powers of Civil Courts, as distinguished from the Rent Courts which only exercise powers over suits of a limited class. In that sense there is a distinction between the terms; but it is entirely another question whether the Rent Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons seeking their Civil rights, and whether being a Civil Court in that sense, it does not fall within the provisions of Act VIII of 1859. It is hardly necessary to refer to those provisions in deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor possessed property in that district, it was held that the rent Court could exercise powers of the Civil Court in that behalf I am unable to interpret that decision as laying down that the rent Court under Act X of 1859 was held to be a Civil Court for all the purposes of Act VIII of 1859. 13. In this connection, I may take notice of the recent rent enactments in this State, such as the U. P. Tenancy Act of 1939 and the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act No. 1 of 1951). These two enactments also created Courts with limited jurisdiction to deal with matters relating to rent and revenue of agricultural land as also disputes relating to rights about agricultural land. It seems to me that those Courts cannot all of them be held to be Civil Courts for all the purposes of the Civil Procedure Code of 1908 because, if they were to be held to be Civil Courts for purposes of this code as a whole, they would be competent under Section 9 of the Civil Procedure Code of 1908 to take cognizance of all suits of a civil nature and have jurisdiction to try those suits unless the cognizance was expressly or impliedly barred. I am, therefore, of the opinion that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate to the High Court. It is true that, in some cases, where a decision is given in a suit by as Assistant Collector, the appeal lies to the District Judge and the district Court is thus the appellate authority but the same Assistant Collector decides suits of a different nature in which the appeal lies not to the District Judge but to the Collector the Commissioner or the Board of Revenue, so that the district Court, in respect of those suits, does not come into the picture even as an appellate Court. As an example, suits for ejectment from agricultural land, no doubt, involve disputes of a civil nature and all questions involved and decided would be purely questions of a civil nature relating to civil rights of parties but, even in such suits, when an Assistant Collector gives a decision, the appeal does nut lie to the District Judge. The first appellate authority is the Commissioner and the second appellate authority is the Board of Revenue. I do not think that it can be held that, when exercising jurisdiction in respect of such a suit, the Assistant Collector, the Commissioner and the Board of Revenue can be held to be Civil Courts even for the purpose of Section 3 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. In this connection, I may also mention that the Civil Procedure Code, as it exists to-day, is different from the Code as it was in force at the time when their Lordships of the Privy Council gave the decision in the case cited above. Act VIII of 1859 had no provision similar to the provision contained in Section 3 Civil Procedure Code 1908. Further, there was also no provision similar to Section 115 Civil Procedure Code. The question of subordination of Courts did not, at that stage, therefore, arise, nor were their Lordships concerned with such a question. On the other hand, the judgment of their Lordships of the Privy Council, read as a whole, indicates that their Lordships held the view that the rent Court could exercise jurisdiction of a Civil Court to transfer decrees for execution because, under the earlier code governing the enforcement of judgments in places beyond the jurisdiction of Courts pronouncing them, no distinction had been made between one Court and another and, under that earlier law, judgments of all Courts could be enforced in one and the same manner. It was further held that Act VIII of 1830 expressed the same intention that all Courts entertaining civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must then necessarily be held to be subordinate to the District Courts. With respect, therefore, I am constrained to say that I differ from the view taken in that case. 18. For purposes of analogy, reference has also been made to two Full Bench cases of Ram Autar Misir v. Mahabir Shukul 1942 All WR 325 and Shah Chaturbhuj v. Shah Mauji Ram AIR1933All456 In which it was held that the Court of an Assistant Collector under the U. P. Agriculturists' Relief Act is a Civil Court. In both these cases, it was held that the High Court was competent to entertain an application for revision under Section 115 Civil Procedure Code against the decision of an Assistant Collector empowered under Section 12 of the U. P. Agriculturists' Relief Act or exercising jurisdiction for amendment of decrees under Section 5 (1) of the U. P. Agriculturists' Relief Act. With all respect, I find myself in some difficulty in following the views expressed in those two cases, because in neither of those two cases were the provisions of Section 3 Civil Procedure Code discussed in detail to see where an Assistant Collector would be placed in the hierarchy of Civil Courts and, further, there was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh v. Mohan Singh, Civil Revn. No. 602 of 1956, D/- 11-3-1958 (All) by a Bench of Roy and B. Dayal, JJ., and Lal Chand v. Bharat Nidhi Ltd AIR1962All378 decided by a Bench consisting of Desai, C. J. and Ramabhadran, J. It does not appear to me to be necessary to make any comments in detail on the views expressed in these two decisions as I have already given my reasons for the view that a tribunal under the Act is not a Civil Court within the meaning of Sections 3 and 115 Civil Procedure Code. I would, therefore, answer the question referred to the Full Bench as follows:- A Tribunal constituted under the Displaced Persons (Debts Adjustment) Act, 1951 (Act No. LXX of 1951) is not a Court subordinate to the High Court within the meaning of Section 115 Civil Procedure Code and no revision lies under Section 115 Civil Procedure Code against an order passed by such a Tribunal. Shankar Dayal Khare, J. 20. A revision application was filed against an order passed by the Additional Civil Judge, acting as a 'Tribunal' specified under Section 4 of the Displaced Persons (Debts Adjustment) Act, 1951, (hereinafter referred to as 'the Act'). The valuation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed by the Tribunal? 23. The word 'Court' has not been defined in the Act. It would, therefore, be relevant to notice the definition of the word 'Court' available elsewhere. Stephen in his commentary on the Laws of England, 18th Edition, Vol. III, Ch. XXVI. pp 491 and 492 defines the word 'Court' as the place where justice is judicially administered. According to Stephen generally in every civil judicial proceeding there must be at least three constituent parts, the actor, reus and judex; the actor or plain-tiff who complains of an injury done, the reus or defendant who is called upon to make satisfaction for it, and the judex or judicial power which is to examine the truth of the fact and to determine the law arising upon the fact and if any injury appears to have been done to ascertain and by its officers to apply the remedy. 24. Section 3 of the Indian Evidence Act (No. 1 of 1872) defines 'Court' as including all judges and Magistrates and all persons except arbitrators legally authorised to take evidence. This definition has, however, been held not to be exhaustive, framed only for the purposes of the Evidence Act, and is not, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Public Servants (Inquiries) Act, 1850, was not held to be a 'Court' within the meaning of the terms as used in the Contempt of Courts Act. The main reason for arriving at that conclusion was that the Commissioner under the aforesaid Act was not empowered to decide the matter briefly but was required only to submit his recommendations to Government which alone was competent to pass final orders. 29. In the case of Virindar Kumar Satyawadi v. State of Punjab 1956CriLJ326 stress was laid on another essential requisite of a 'Court' and it was held that the Returning Officer who decided on validity of nomination paper under sub-section (2) of Section 36 of the Representation of the People Act. 1951. is not a 'Court'. While arriving at that conclusion the Supreme Court observed:- What distinguishes a Court from a quasi- judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce Evidence in proof of it. And i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. Section 31 of the Act lays down that Section 60 Civil Procedure Code will apply with certain modifications. Variation of maintenance allowance, extension of period of limitation and curtailment of period of limitation for execution of certain decrees are provided for under Sections 34, 36 and 37 of the Act. Section 40 of the Act makes a general provision relating to appeals and provides that appeals shall lie to the High Court. Section 41 of the Act makes it clear that where the subject-matter of the appeal relates to the amount of a debt and such amount on appeal is less than ₹ 5,000/- no appeal shall lie. 34. The last Chapter in the Act (Sections 43 to 59) deals with miscellaneous matters. Section 54 provides that Order 38 (arrest and attachment before judgment) of the First Schedule to the Civil Procedure Code will not apply to any proceeding under the Act. Section 50 lays down that the displaced debtor is not to be deemed an insolvent. 35. As regards execution of decrees. Section 28 of the Act provides that it shall be competent for the Civil Court which has been specified as a Tribunal for the purposes of this Act to execute any decree or order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court' specified under Section 4 of the Act as authority to exercise jurisdiction under the Act. 42. In my opinion there is no force in any of these contentions The hierarchy of Courts (that of Munsif, Civil Judge. Judge, Small Causes, and District Judge) is not specified under the Civil Procedure Code. All that Section 3 Civil Procedure Code provides is that for the purposes of the Code of Civil Procedure the District Court will be subordinate to the High Court, and every Civil Court of a grade interior to that of a District Court and every Court of Small Causes is Subordinate to the High Court and District Court. The hierarchy of Civil Courts (that of Munsifs, Subordinate --now Civil Judges. (Additional Judges and District Judges) is only to be found in the Bengal, Agra and Assam, Civil Courts Act, 1887. It is, therefore, clear that the Courts of Munsifs, Civil Judges, Judges. Small Causes, and District Judges, may not be the only Civil Courts for the purposes of Section 3 of the Civil Procedure Code. 43. The U. P. Agriculturists Relief Act, 1934, gives jurisdiction under the aforesaid Act to 'Count' meaning thereby 'Civil Court' (vide Sub-section (5) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of revisional jurisdiction under Section 115 Civil Procedure Code. This question may well be considered from two view points. My view is that the 'Tribunal' is nothing but the Civil Court (the Court of the Civil Judge, or the District Judge, as the case may be) specified to exercise jurisdiction under the Act, and has no separate entity. The other view, which has not been accepted by me, may be that the Tribunal has a separate entity. Even then, as already held by me, it will be a 'Civil Court' (though different from the Civil Court specified as Tribunal). In either case, the subordination of the Tribunal to the High Court will be there. In the first case, the sub ordination to the High Court is already there (vide Section 3 Civil Procedure Code) and is well recognised. In the second case also, the subordination of the Tribunal to the High Court will be there in view of the provisions of Section 3 Civil Procedure Coda read with Preamble and Sub-section (4) of Section 2 Civil Procedure Code and Sub section (24) of Section 3 of the General Clauses Act. 49. The preamble to the Civil Procedure Code indicates that it is an Act to consolidate and amend the law relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revision application against such orders lay to the High Court. It was also observed that the subordination of all Courts of civil judicature to the District Court in a district area and to the High Court in a State is clearly there and that if will be very difficult to suppose that the Legislature in enacting as a part of the consolidating Code a provision dealing with the subordination of Courts in the hierarchy of Civil Courts in the country could possibly have left out of account an important class of Courts dealing with particular kind of civil proceedings as assigned to them by special or local laws. 54. The subordination of the Tribunal constituted under Section 4 of the Act to the High Court is also evident from the fact that under Section 40 of the Act appeals from the decisions of the Tribunal lie to the High Court. It was held to the Full Bench cases of Maknan Lal v. Secy. of State AIR1934All260 and Ram Saran Tewari v. Raj Bahadur Varma, v MANU AIR1962All315 that where appeals lie from the order of a particular Court or Tribunal to the High Court the subordination o that Court or Tribunal to the High Court is clearly envisaged. 55. I would, therefore, hold t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd awarded proportionate costs. It is against this decree that the present revision has been filed before this Court. 62. At the hearing of this revision before a learned single Judge a preliminary objection was raised that the revision was not maintainable. Since there was conflict on this point between two Division Benches of this Court, namely. Civil Revn. No. 602 of 1956, D/-11-3-1958 (All), by a Bench consisting of Roy and B. Dayal, JJ. and AIR1962All378 decided by a Bench consisting of Desai, C. J. and Ramabhadran, J., the learned Single Judge referred the matter to a Division Bench and the Division Bench referred it to a Full Bench. 63. Before stating the points in controversy it is necessary to refer to certain provisions of the Act. Section 2(12) defines Tribunal to mean any Civil Court specified under Section 4 as having authority to exercise jurisdiction under this Act. Section 4 provides that the State Government may, by notification in the Official Gazette, specify any Civil Court or class of Civil Courts as the Tribunal or Tribunals having authority to exercise jurisdiction under this Act. On December 24, 1951. the State Government issued notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the applicant filed an application to revision. 65. With regard to the preliminary objection as to the maintainability of the revision two points arise for consideration. The first is whether the Tribunal is a Court or a persona designata. If it is held that it is a persona designata, then the question referred must straightaway be answered in the negative; but if it is held that it is a Court, then a second question arises for consideration whether it is a Court subordinate to the High Court within the meaning of Section 115, Civil Procedure Code. 66. I shall first deal with the question whether the Tribunal is a Court or a persona designate. Two decisions have been brought to our notice in which it has been held that the Tribunal under the Act is not a Court but is a persona designata In AIR1962All378 Desai C. J., has observed as follows: The provisions or the Act show that it was not the intention of the Legislature that the Civil Judge should exercise the jurisdiction conferred by the Act as a Civil Judge, but to create a new Court, though to be presided over by a Civil Judge. It contains provisions such as Sections 26, 28, 40 and 53 suggesting that he was mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Naidu v. Koteswara Rao AIR 1924 Mad 561 (FB) : Persona designata are persons selected to act in their private capacity and not in their capacity as Judges . Sections 2(12) and 4 of the Act, read with the notification issued by the State Government under Section 4, unmistakably show that no individual person has been appointed as a Tribunal but a class of Civil Courts have been appointed Tribunal under the Act. It further appears from the provisions of the Act that the Tribunals have not been selected to act in their private capacity but to act in their capacity as Civil Courts. 69 Learned Counsel for the opposite party has relied upon a decision of the Supreme Court in Hans Kumar Kishan Chand v. Union of India [1959]1SCR1177 in support of the proposition that even a Court may, in certain circumstances act as a persona designata. There is no real anti- thesis between the expressions 'persona designata and 'Court'; in other words, even a Court may be a persona designata. Whether he is a Court or not depends upon his powers and the functions which he has to discharge. In legal phraseology 'persona designata means 'a person indicated in a statute or l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure Code The only Courts which are subordinate to the High Court for the purposes of the Civil Procedure Cod are those enumerated in Section 3 of the Civil Procedure Code and such other Courts as may have been made subordinate to the High Court for the purposes of the Civil Procedure Code by any other enactment. Taking this view V. Bhargava, J., came to the conclusion that no revision lay from a decree or order of the Tribunal under the Act. With respect, I am unable to subscribe to the view taken by V Bhargava, J,, that the Tribunal is not a Civil Court. It may be mentioned here that this decision was overruled by a Division Bench of this Court in Civil Revn. No. 602 of 1956, D/- 11-3-1958 (All). The only argument in favour of holding that the Tribunal is not a Civil Court is that Sections 4 and 28 make a distinction between the Civil Court and the Tribunal. Section 4 provides that the Civil Court specified shall act as the Tribunal and Section 28 pro-vides for the execution, by the Civil Court, of the decrees passed by it as the Tribunal. These sections do lend some support to the argument. But this is offset by Section 2(12) which defines a Tribunal as the Civil Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Courts referred to in Section 77, and the kindred sections mean Civil Courts exercising all the powers of Civil Courts, as distinguished from the Rent Courts which only exercise powers over suits of a limited class. In that sense there is a distinction between the terms; but it is entirely, another question whether the Rent; Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons seeking their civil rights, and whether being a Civil Court in that sense, it does not, fall within the provisions of Act VIII of 1859. It is hardly necessary to refer to those provisions in detail, because there is no dispute but that, if the Rent Court is a Civil Court within Act VIII of 1859, the collector has under Section 284, the power of transferring his decrees for execution into mother district. I am of the opinion that the expression 'Civil Court' must receive the same meaning in Section 3 of the present Code. The provisions of the Act show that the Tribunal has to give its decision on purely civil question between persons seeking their civil rights and must be held to be a Civil Court Referring to this decision of the Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : From these provisions it seems to us that Section 3 of the Code must be interpreted as a comprehensive declaration, as a matter of corollary, of the subordination of all 'Court of Civil judicature' to the District Court in a district area and to the High Court in a provincial area. There can be little doubt that in the present case the Sub-Collector and the District Collector were hearing and determining disputes of a civil nature and we see no sufficient reason why the proceedings before them should not be regarded as 'civil proceedings' and their Courts as 'Civil Courts' for the purposes of Section 3. The learned Judge observed that this conclusion was supported by the decision of the Privy Council in 9 Ind App 174 (PC). In view of the decision of the Privy Council above referred to, it is clear, that the Tribunal acting under the Act and deciding civil disputes with respect to civil rights in accordance with the procedure prescribed by the Act itself and by the Civil Procedure Code is a 'Civil Court' within the meaning of Section 3 of the Civil Procedure Code. 75. The fact that the Tribunal under the Act is a 'Civil Court' w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
