TMI Blog1950 (4) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... [7] of 1892) to transfer to the City Civil Ct. suits instituted in the H. C. on its original side before the date of the Notfn. G. O. No. M. S. 4175 Home dated 11-11-1948 required reconsideration. In order to better appreciate the scope of the questions raised in the reference and the contentions urged before us, it is necessary to set out briefly the relevant provisions that have a bearing on the questions. 2. The original jurisdiction of the H. C. is derived under clause 12 of the Letters Patent which empowered the H. C. of Judicature at Madras in the exercise of its Ordinary Original Civil Jurisdiction to receive, try and determine suits of every description, if, in the case of suits for land or other immovable property, such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell, or carry on business, or personally work for gain within such limits ; except that the said High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exceptions specified in Section 3, if the Provincial Government may, by notification in the Official Gazette, invest the City Court with jurisdiction to receive, try dispose of all suits and other proceedings of a civil nature arising within the City of Madras of such value not exceeding ten thousand rupees as may be specified in the notification. Appeals against the decisions of the City Civil Ct. lie to the H. C. the right of appeal was conferred by Section 15 of the Act. Sub-clause (2) of that section provides that the period of limitation for an appeal from a decree or order of the City Ct. shall be the same as that provided by law for an appeal from a decree or order of the H. C. in the exercise of its original jurisdiction. The nest section, Section 16, saves the original civil jurisdiction of the H. C. also confers a power of transfer on the H. C. of suits pending before it. As the construction of this section is ono of the important points in this case, it is necessary to set it out in extenso : 16. Nothing in this Act contained shall affect the original civil jurisdiction of the High Court : Provided that 1. If any suit or other proceeding ia inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit is below rupees ten thousand in value, is the litigant bound to institute it in the City Civil Ct. as the Ct. of the lowest grade competent to try it. Section 15 of the Code directs that every suit shall be instituted in the Ct. of the lowest grade competent to try it. Under Clause 12 of the Letters Patent, subject to one qualification, the H. C. has unlimited original jurisdiction this jurisdiction was saved under Section 16, City Civil Court Act (VII [7] of 1892). Competency contemplated by thia section is pecuniary competency it has been held that this section lays down a rule of procedure not of jurisdiction. While it enjoins the institution of a suit in the Ct. of the lowest grade competent to try it, it does not oust the jurisdiction of the Ct. of a higher grade. Even if the Ct. of a higher grade tries disposes of a suit which could have been instituted in a Ct. of a lower grade, the decision rendered is not without jurisdiction is not a nullity--(Sea Nidhilal v. Mazhar Hussain, 7 ALL. 230 : 1885 A. W. N. l F. B.), Matra Mondal v. Hari Mohan, 17 Cal. 155; Krishnasami v. Kanakasabai, 14 Mad. 183 ; (1 M. L. J. 284) and Gowrachandra v. Vikrama Deo, 23 Mad. 367. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thstanding that it is not one of the excepted sections mentioned in Section 120 of the Code. The conclusion was based on the arrangement of the group of sections relating to place of suing most of which were expressly excluded by Section 120 as inapplicable to Chartered H. Cts. 8. In my view there is much to be said in favour of the view taken by the Calcutta Rangoon H. Cs. in the two decisions above referred to. The City Civil1 Court Act expressly saved the original civil jurisdiction of the H. C. the policy of the Legislature has been not to touch the original jurisdiction of the H. C. The scheme of the entire group of sections relating to place of suing cannot be made applicable when a self-contained provision relating to place of suing was laid down in Clause 12 of the Letters Patent. The practice has also been so far not to apply Section 15 to the original jurisdiction of the High Court. 9. Apart from this in my opinion proviso (1) to Section 16, Madras City Civil Court Act, is clearly inconsistent with Section 15 does not make it obligatory on the pltf. to choose the lowest Ct. of pecuniary jurisdiction to institute a suit when the conflict is between the City Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y when there is necessity to choose the forum in the gradations of Cts referred to in Section3. The lowest Ct. of pecuniary jurisdiction must be the Ct. in which the suit should be instituted. But Section 8 speaks only of subordination of Cts. defines it whereas Section 15 speaks of the Ct. of the lowest grade competent to try competency in this section can only mean pecuniary competency, .If this view of the section is right, it follows that when there are two Cts. of different pecuniary jurisdiction like the City Civil Ct. the H. C. exercising original civil jurisdiction, there is no reason for not treating the City Civil Ct. as the Ct. of the lowest grade if the value of the suit is within the pecuniary jurisdiction of that Ct. It is, therefore, difficult to restrict the meaning of Section 15 in the manner contended. 11. But, for the reasons I have already given, I am definitely of opinion that Section 15 has no application to the H. Cts. exercising ordinary original jurisdiction when there is a conflict between the original jurisdiction of the H. C. City Civil Ct. constituted under the Madras City Civil Court Act. The answer, therefore, to the first question referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that if the Legislature had exercised its will judgment regarding all matters such as the place, the person or the laws powers but merely entrusted to some other authority the power of determining the time of commencement of the Act the places to which it should be applied, it is not a delegation of a legislative power at all. Following the view of the F. C. I was of opinion that the power of extending the life of an Act was really a legislative power as in substance in effect such a power was to bring the Act itself into existence for a further period. The decision of the P. C. in Empress v. Burah, 4 Cal. 172: (5 I. A. 178 P.C.) Emperor v. Banori Lall, 1945-1-M. L. J. 76: (A.I.R. (32) 1945 P. C. 48 : 46 Cr. L. J. 589) are instances where a power to extend an Act which removed the jurisdiction of the ordinary civil Ct. criminal Cts. vested such power in officers to be appointed by an outside authority a power to constitute special criminal Cts. with power to determine the class of cases to be tried by such Cta. were treated as non-legislative powers. In the light of those decisions, it is difficult to hold that in an Act which is complete in itself a po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular suit within the jurisdiction of the City Civil Ct. the H. C. has, in my opinion, an undoubted power to transfer the suit to the City Civil Ct. In my opinion, the use of the language suit or proceeding is within the jurisdiction of the Court, by the Legislature is deliberate is intended to enable a H. C. to transfer suits if the City Civil Ct. by the date of such transfer acquired pecuniary jurisdiction to try such suit or proceeding. Even if the meaning of the expression arising in Section3A of the Act in the notification is to be understood as indicative of suits instituted after the said date, that would not in my view, prevent the H. C. from exercising the power of transfer under the second proviso. 15. In my opinion, the expression suit or proceeding of a civil nature arising within the city of Madras'' is used to denote the class of suits over which the jurisdiction to receive, try dispose of was intended to be conferred upon the City Civil Ct. by the Legislature. They must be suits or proceedings which arise within the city of Madras not outside it. The expression arising is not indicative in the context of a point of time, past or future; b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither in the City Civil Ct. or in the H. C. If the suit is instituted in the H. C. it is subject to the power of transfer under the second proviso to Section 16. If the H. C. does not choose or does not think it proper in a given case to transfer the suit to the City Civil Ct. but if it is really a suit which ought to have been instituted in the City Civil Ct. power is given to the H. C. under the first proviso to impose a special penalty. It cannot, therefore, be said that because a person has a right a vested right to have a suit tried in a particular Ct. the power of transfer recognised in the statute is abrogated. The vested rights is always subject to the overriding power of the Ct. subject to the restrictions contained in the statute to transfer to another Ct. competent to try the same. It is unnecessary for me to examine in detail the decisions that have been cited on thia part of the case as I have stated succinctly the principles deducible from those decisions. The very case in G. P. Banerjee v. B. S. Irani, A.I.R. (36) 1949 Bom. 182 : (51 Bom. L. R. 122) recognised the fact that in the legislation under examination in that case there was no power of transfer which shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value below ₹ 10,000 can be transferred to the City Civil Ct. that the City Civil Ct. is competent to try such suits when so transferred. It is unnecessary therefore to answer the question whether the H. C. has or has not the power of transfer under Section 24(1), C. P. C. This is my answer to the second question. Subba Rao, J. 19. I intended to deliver a separate judgment in view of the importance of the question referred to us. But after perusing the judgments prepared by my learned brethren, I feel that anything I may add would merely be a repetition. I am content to express my respectful agreement with the conclusions arrived at by them. Viswanatha Sastri, J. 20. There are three Gts. of different grades having original civil jurisdiction within the City of Madras, namely, the H. C. of Madras, the Madras City Civil Ct. the Presidency Small Cause Ct. The classes of suits triable by these Cts. the minimum maximum limits of their pecuniary jurisdiction vary. A short analysis of the rele vant statutory provisions constituting these Gta. investing them with jurisdiction to try suits is necessary. Clauses 11 12 of the Letters Patent of the H. C. o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Civil Ct. to ₹ 5000 by a further G. O. no. 4175 dated 11-11-1948 to HS. 10,000. Section 14 of the Act recognised the power of the H. C. to transfer to itself a suit filed in the City Civil Ct. acting under Clause 13 of the Letters Patent a. 25, C. P. C. (Section 24 of the C. P. C. of 1908). Section 15 provides that the H. C. is authorised to hear appeals from the City Ct. Section 16 expressly declares that nothing in the Act shall affect the original jurisdiction of the H. C. Proviso (1) to Section 16 requires a Judge of the original side of the H. C to disallow costs to the successful pltf., if, in the opinion of the Judge, the suit is one which ought to have been instituted in the City Civil Ct. Proviso (2) to Section 16 empowers any Judge of the H. C. at any stage of any suit or proceeding, to transfer the same to the City Ct. if. in his opinion, such suit or proceeding is within the jurisdiction of tbat Ct. should be tried therein. Though Section 8 of Act VII [7] of 1892 requires the City Civil Ct. to administer the law for the time being administered by the H. C. in the exercise of its ordinary original civil jurisdiction, the procedure in suits other proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy Towns Small Cause Courts Act xv [15] of 1892, the Small Cause Ct. is a Ct. subordinate to the H. C. It may be observed that Act xv [15] of 1882 is a self-contained enactment, Order 51, C. P. C. merely extending a few of the provisions of the Code to suits proceedings in the Small Cause Court. 23. The result of the foregoing statutory provisions as regards the pecuniary jurisdiction of Cts. established for the trial of the civil suits in the City of Madras, is as follows : (1) Over certain suits and proceedings, the H. C. has exclusive jurisdiction, irrespective of the value of the subject-matter, as for instance, matrimonial, testamentary, admiralty insolvency proceedings. (2) Over certain suits the H. C. has no original jurisdiction, that is to say, suits triable by the Ct. of Small Causes where the value of the claim does not exceed ₹ 100. (8) The pecuniary jurisdiction of the H. C. is otherwise unlimited. (4) The City Civil Ob. has no jurisdiction over suits proceedings falling under head (1) or over suits and proceedings cognizable by a Small Cause Ct. of a value not exceeding ₹ 1000. Subject to a maximum of ₹ 10,000 the City Civil Ct. has concurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al side unless a contrary provision is made in the rules. Section 15, C. P. C. requires a suitor to file his suit in the Ct. of the lowest grade competent to entertain it. The City Civil Ct is a Ct. of a lower grade than the H. C. because its pecuiary jurisdiction is limited to ₹ 10,000 while the jurisdiction of the H. C. is unlimited because appeals lie from the City Civil Ct. to the H. C. Though the City Civil Ct. might not come within the hierarchy of Cts. specified in Section 8, O.P.C. which contemplates Cts. established under the Madras Civil Courts Act (III [3] of 1873) still it is a CT. of a grade lower than the H.C. within the meaning of Section 15, C.P.C. Section 15 would, therefore, seem to apply to the H. C. compel a suitor to file his suit for less than ₹ 10,000 in the City Civil Ct. even though both the H. C. the City Civil Ct. might have concurrent jurisdiction. 26. The object of Section 15, C. P. C. is to prevent superior Cts. being flooded or overcrowded with suits triable by Cts. of inferior grade. The section merely regulates procedure not jurisdiction. It does not deprive Cts. of superior pecuniary grade of their jurisdiction to try suits w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowance of costs to the successful plbf. The second proviso to Section 16 empowers a Judge of the H, C. to transfer any pending suit or proceeding to the' City Civil Ct. if the suit or proceeding is otherwise competent to be tried by that Ct. This proviso gives a discretion to a Judge of the H. C. to try the suit himself or to send it for trial to the City Civil Ct. Section 15, C. P. C requires a suitor to file his suit in the Ct. of the lowest grade competent to try it Order 7 Rule 10 is the machinery or sanction provided for enforcing or compelling compliance with Section 15. The language of Order 7. Rule 10 is mandatory and the superior Ct. is bound to return the plaint to the Ct. of the lowest grade where it should have been instituted. There is no provision in the Original Side Eules corresponding to Order 7, Rule 10, C. P. C. Order 49, Rule 3, C. P. C. expressly excludes the application of Order 7, B. 10, C, P. C. to the H. C. in the exercise of its original jurisdiction. Under the two provisos to Section 16, Madras Civil Courts Act, the H. C. can either try a suit which should have been, but was not instituted in the City Civil Ct. mulcting the pltfs. in costs, or tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms. No palpable absurdity results if both the provisions coexist there is no compelling reason why Section 15, C. P. C. should nob be interpreted as applying to cases Cts. not dealt with by the special enactments. In Barker v. Edgar, (1898) A. C. 748 at p. 754 : (67 L. J. P. c. 115), the Judicial Committee observed : When the Legislature has given its attention to a separate subjeat made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter its own terms. 29. If Section 15, C. P. C. were held to apply to suits on the original side, ib would pro tanto deprive the parties interested of their right to have their suits institubed heard on bhe original side in the exercise of the jurisdiction conferred on the H. C. by Clause 12 of the Letters Patent. Where power is given to a suitor to take proceedings in different Cts. he has a choice of the forum his remedy is also subject to the lex fori. A suitor has a longer period of limitation for the institution of summa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original side of the H. C, could have been instituted only on the original side, for, on the date of its institution the pecuniary jurisdiction of the City Civil Ct. did not extend beyond ₹ 6000. By G. O. NO. 4175 dated 11-11-1918, issued under Section 3A, Madras City Civil Court Act, the pecuniary jurisdiction of the City Civil Ct. was raised to ₹ 10,000, the relevant portion of the G. O. being as follows: His Excellency the Governor of Madras hereby invests, with, effect on from 1-12-1948, the Madras City Civil Court, subject to the exceptions specified in Section Section 3 of the Act (VII of 1892) with jurisdiction to receive, try dispose of suits other proceedings of a civil nature arising within the City of Madras of value not exceeding ₹ 10,000. If the suit now in question had been instituted after 1-12-1948, the City Civil Ct. would have had jurisdiction to entertain it. A valid transfer of a suit or other proceeding can be made from one Ct. to another only if the Ct. which transfers the suit or proceeding had initially the jurisdiction to entertain it, the Ct. to which the suit or proceeding is transferred has jurisdiction under the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Madras are descriptive of the nature of the suit do not connote the future tense so as to be applicable only to suits instituted after the date of the G. O. The limits of territorial jurisdiction prescribed by Sections. 16, 19 20, C. P. C. which apply to the City Civil Ct., are compendiously referred to by the use of the words, arising within the City of Madras in Sections. 8 8-A the G. O. above referred to. On a literal reading of the language of these sections G. O. No. 4175 it can be said that the H. C. has power to transfer a suit instituted on the original side to the City Civil Ct., where the value o the suit is below ₹ 10,000 the suit is not exempted by Section 3, Madras City Civil Court Act from the cognizance of the City Civil Ct., even though at the time when the suit was first instituted it was beyond the pecuniary jurisdiction of the City Civil Ct. 31. It is, however, contended that there are certain well-established principles of statutory construction, which have to be taken into account in arriving at a conclusion as to whether this power of transfer can be exercised in respect of suits pending in this Ct. which were beyond the pecuniary j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial Committee was taken away a right of appeal to the H. C. of Australia was substituted by the Judiciary Act of 1903, which came into force before the action was decided by the S. C. It was held by the Judicial Committee that the right of appeal to the Judicial Committee was a right vested in the suitor when the action was brought was not affected by the Judicature Act, which became law pending the action. The relevant portion of the judgment is as follows : The Judiciary Act is not retrospective by express enactment or necessary intendment. And, therefore, the only question is, was the appeal to Hia Majesty in Council a right vested in the applt. at the date of the passing of the Act, or is it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle their Lordships see no difference between abolishing an appeal altogether transferring an appeal to a new tribunal. In either case there is an interference with existing rights, contrary to the well known g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was interposed as a condition of the maintainability of an appeal from his judgment. The result of the leading cases above referred to is, whether a statutory provision takes away an existing right of action or appeal, or whether it imposes an onerous condition for the exercise of such a right, it is not to be given retrospective effect unless the language of the statutory provision is quite clear no other interpretation is possible. 34. We are here concerned with a suit properly instituted on the original side of the H. C., at a time when it was the only forum open to the pltf. It 13 true that at the moment when the suitor entered this Ct., he was not liable to be ejected therefrom by the exercise of this Ct.'s power of transfer under the second proviso to s, 16, Madras City Civil Court Act, he had a right to have his suit tried decided by this Ct. itself. That the prineiple of the decision in Colonial Sugar Refining Go. v. Irwing, 1905 A. C. 369: (74 L. J.P. C. 77) with reference to a right of appeal applies equally to a right to continue a suit to its termination in a Ct. in which it was properly filed, has been held by the F. C. in Venugopala Reddi v. 1951 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere, after a transfer by this Ct. of a suit the value of whose subject-matter is below ₹ 10,000, to the City Civil Ct., would be within the authority conferred on this Ct. by the second proviso to Section 16. Section 24(a), C. P. C. empowers the H. C. at any stage to transfer any suit pending before it for trial or disposal to any Ct. subordinate to it competent to try or dispose of the same. Even here the competency of the subordinate Ct. to receive try a suit transferred to it ia its competency on the date of the transfer of the suit by this Ct. As already pointed out, the City Civil Ct, is a Ct. subordinate to the H. C., though it may not be in the heirarchy of Cta. established by the Madras Civil Courts Act in [3] of 1878 contemplated by Section 3, C. P. C. That Section 24, C. P. C. applies to the City Civil Ct. is recognised by Section 14 of the Madras City Civil Courts Act. That Section 24 empowers the H. C. to transfer a suit on the original side for trial to a subordinate Ct. which would have jurisdiction to try the suit had been held by a F. B. of this Ct. in Krishna Mudaliar v. Sabapathi Mudaliar, I.L.R. 1945 Mad. 389 : (A.I.R. (32) 1945 Mad. 69 F.B.). It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am content to say that, looking at the terms of Section 3-A, Madras City Civil Court Act, I find no abdication, surrender, delegation or transfer by the Legislature of its legislative power and responsibility to the executive. It is merely an example of the common legislative arrangement now widely prevalent both here in other countries, by which a.. provision of a legislative enactment is authorised by the Legislature itself to be applied to a particular case, according to the judgment of a local administrative body as to its necessity or propriety. It cannot be disputed that it is open to the Legislature to appoint a subordinate agency confer upon it powers which need not be wholly administrative but also legislative in character. Conditional legislation of this kind is both convenient common is not delegated legislation at all. Such exercise of power by a subordinate agency or authority entrusted by the Legislature with discretion to exercise it has been variously styled as subordinate or subsidiary or conditional legislation. Emperor v. Banori Lal, 1945-1 M. L. J. 76 : (A. I. R. (32) 1945 P. C. 48 : 46 Cr. L. J. 589) Russel v. Reg, (1882) 7 A. C. 829: (61 L J. P. C. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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