Ramchandra Aggarwal & ANR Vs.
State of Uttar Pradesh & ANR [1966] INSC 118 (5 May 1966)
05/05/1966
ACT:
Code of Criminal Procedure (Act 5 of 1898),
s. 146 (1)Reference by Magistrate to Civil Court-If to a persona designata.
Code of Civil Procedure (Act 5 of 1908), s.
24-Jurisdiction of District Judge to transfer reference from one Civil Court to
another.
HEADNOTE:
Under s. 146(1) Criminal Procedure Code, a
Magistrate referred to a Civil Court of competent jurisdiction the question as
to which of the parties was, at the relevant point of time, in possession of
the subject-matter of dispute in a proceeding under s. 145 Cr. P.C. Under s.
24, Civil Procedure Code, the District Judge transferred the reference to
another Civil Court. It was contended that the District Judge acted without
jurisdiction because (i) the reference was to a persona designata, and (ii) the
provisions of C.P.C. did not apply to the proceeding as it was not a proceeding
in a court of Civil jurisdiction within the meaning of s. 141, C.P.C.
HELD:-(i) Where a special or local statute
refers to a constituted court as a court and does not refer to the presiding
officer of the court, the reference cannot be said to be to a persona
designata. The power unders. 146(1) is not to refer the matter to the presiding
Judge of a Civil Court, but to a court. [396A-C].
(ii)The provisions of the Civil Procedure
Code apply generally to a proceeding before a civil court arising out of a
reference made by,,& Magistrate under s. 146(1) Cr. P.C. F399 E-F]
Adaikappa Chettiar v. Chandrasekhara Thevar, 74 I.A. 264, Mamg Ba Thaw v. Ma
Pin, 61 I.A. 158 and South Asia Industries (P) Ltd. v. S. B. Sarup Singh,
[1965] 2 S.C.R.
756 applied.
Section 24 C.P.C. refers to "other
proceeding in any court sub-ordinate to it" and not to a civil proceeding
pending before a subordinate court. The term "proceeding" is
comprehensive enough to include all matters coming up for judicial adjudication
and is not confined to civil proceedings alone, and therefore, there is no need
to invoke s. 141, V.P.C. [399 F-H] Obiter:-The proceeding before the civil
court is a civil proceeding as contemplated by s. 141 C.P.C. [398 F-H] A
proceeding stemming from a criminal matter does not always bear the stamp of a
criminal proceeding. [397 D-E] Sri Sheonath Prasad v. City Magistrate,
Varanasi, A.I.R.
1959 All. 467, disapproved.
The Magistrate when he refers the question to
a civil court, does not confer a part of his criminal jurisdiction upon the
civil court.
Under s. 146(1D), Cr.P.C., neither an appeal
nor a revision lies against the finding of the civil court in the reference,
because of the express provision and not because the Proceeding beforethe civil
court is not a civil proceeding. [398 A-C] 394
CRIMINAL APPELLATE JURISDICTION:Criminal
Appeal No. 113 of 1965.
Appeal from the judgment and order dated
October 26, 1964 of the Allahabad High Court in Criminal Revision No. 803 of
1963.
J. P. Goyal, for the appellants.
O. P. Rana and Atiqur Rehman, for respondent
No.1.
S. K. Mehta and K. L. Mehta, for respondent
No., 2.
B. R. L. lyengar and B. R. G. K. Achar, for
the Intervener.
The Judgment of the Court was delivered by
Mudholkar, J. The only point which falls to be decided in this appeal by
certificate granted by the High Court at Allahabad is whether the District
Judge has jurisdiction under s. 24 of the Code of Civil Procedure to transfer a
reference made by a Magistrate to a particular civil court under s. 146 of the
Code of Criminal Procedure to another civil court. It arises this way.
Proceedings under s. 145, Cr. P.C. were initiated by a Magistrate on the basis
of a report of a police officer to the effect that a dispute likely to cause a
breach of the peace exists concerning a plot of land situate within the
jurisdiction of the Magistrate between the parties mentioned in the report and
praying for appropriate action under S. 145 of the Code of Criminal Procedure.
The learned Magistrate upon being satisfied about the possibility of a breach
of the peace made a preliminary order under s. 145, Cr. P.C., attached the
property to which the dispute related and called upon the parties to adduce
evidence in respect of their respective claims. In due course he recorded the
evidence but he was unable to make up his mind as to which of the parties was
in possession on the date of the preliminary order and within two months
thereof. He, therefore, referred the case under s. 146(1) of the Cr. P. C. to a
civil court for decision, as to which of the parties was in possession at the
material point of time and in the meanwhile directed that the attachment of the
Property shall continue. The reference went to the court of the Munson within
whose territorial jurisdiction the property was situate. But thereafter one of
the parties Brij Gopal Binani, respondent No. 2 before us, made an application
to the District Judge under S. 24, C.P.C. for transfer of the case to some
other. court. The, ground given was that in the execution case out of which
proceedings under s. 145, Cr.P.C. had arisen, the same Munsiff had. made an
order against him depriving him of costs. The Munsiff having no objection to
the transfer the District Judge' transferred the case to the court of another
Munsiff. The opposite parties, that. is, the appellants before us Ram Chandra
Aggarwal and Kedar Prasad Aggarwal acquiesced in the order of transfer and did
not raise any question as to the jurisdiction of the, transferee court to-hear
and-decide the reference. Eventually evidence was led by both sides' and a
finding given by the transferee court. This finding was in favour 395 of the
second respondent. After receiving the finding the I Magistrate heard
the-parties and held that it was the second respondent who was in possession at
the relevant date and passed an order under s. 145(6), Cr. P.C. pursuant
thereto.
A revision application was preferred by the
appellants before the court of Sessions in which the objection was taken for
the first time that the decision of the civil court was a nullity because it
had no territorial jurisdiction over the subject-matter of the dispute. It was
further contended that the District Judge had no jurisdiction to transfer the
case and that consequently the ultimate order made by the learned Magistrate
was a nullity. The learned Additional Sessions Judge who heard the revision
application rejected these contentions on the ground that they were not raised
earlier. The appellants then took the matter to the High Court in revision. The
appellants rested their revision application on the sole ground that s. 24,
C.P.C.
was not available in respect of a reference
under s. 146(1) Cr. P.C. and that, therefore, the proceedings subsequent to the
transfer of the reference from the court of one Munsiff to that of another are
a nullity. The High Court permitted the point to be urged. The attack was based
upon two grounds that the reference under s. 146(1), Cr. P.C. was to a persona
designata and that the provisions of s. 24, C.P.C. were not available with
respect to it. The second ground was that the proceeding before the civil court
was not a civil proceeding within the meaning of s. 141, C.P.C.
The High Court negatived both the grounds on
which the contention was based.
On behalf of the appellants Mr. Goyal has
reiterated both the contentions. In fairness to Mr. Goyal it must be said that
his attack on the order of the District Judge transferring the case under s.
24, C.P.C. was based more on the ground that the reference under s. 146(1) Cr.
P.C. is not a civil proceeding than on the ground that the reference was to a
persona designata. However, as he did not wish to abandon the other point we
must deal with it even though Mr. B. R. L. Iyengar who appears for the State
conceded that a reference under s. 146(1) is to a constituted court and not to
a persona designata.
In BalakrishnaUdayar v. Vasudeva Aiyar(1)
Lord Atkinson has pointed out teh difference between a persona designata and a
legal tribunal. The difference is in this that the "determinations of a
persona designata are not to be treated as judgments of a legal tribunal".
In the central Talkies Ltd. v. Dwarka Prasad(2) this 'Court has accepted the
meaning given to the expression persona designata in Osborn's Concise Law
Dictionary. 4th edn. p. 263 as eta person who is pointed out or described as an
individual, as opposed to a person ascertained as a member of a class, or as
filling a particular characters Section 146(1) Cr. P.C.
empowers a Magistrate to refer the question
as to whether any, and if so, which of the parties was in possession of the
subject-matter of dispute at. the relevant point of time to a civil court of
competent jurisdiction. The power is not to refer the matter to the presiding
Judge of a particular civil court but to a court. When a special or local law
provides for an adjudication to be made by a constituted court that is, by a
court not created by a special or local law but to an existing court-it in fact
enlarges the ordinary jurisdiction of such a court. Thus where a special or
local statute refers to a constituted court as a court and does not refer to
the presiding officer of that court the reference cannot be said to be to a
persona designata. This question is well settled. It is, therefore, unnecessary
to say anything more on this part of the case except that cases dealing with
the point have been well summarised in the recent decision in Chatur Mohan v.
Ram Behari Dixit.(1).
Now, as to the argument based on the ground
that the proceeding before the civil court is not a civil proceeding, Mr.
Goyal's contention is that since the proceeding before the criminal court under
s. 145 is a criminal proceeding any matter arising out of it, including a
reference to a civil court, does not lose its initial character of a criminal
proceeding. In support of his contention he has placed strong reliance upon the
observations of Jagdish Sahai J., in Sri Sheonath Prasad v. City Magistrate,
Varanasi. (2) In that case the learned Judge was called upon to consider the
meaning of the expression "civil court of competent jurisdiction"
occurring in s. 146(1) of the Code of Criminal Procedure. It was contended
before him that the competency of the court is to be determined not merely with
respect to the territorial jurisdiction of the court but also with respect to
its pecuniary jurisdiction. The question arose because it was contended before
him that the finding on a question of possession was recorded by a civil court
which though it had territorial jurisdiction over the subject matter of the
dispute the value of the subject matter was in excess of the pecuniary
jurisdiction of the court. In the course of his judgment the learned Judge has
observed:"that a proceeding even on reference made to a civil court
retains its old moorings and does not change its character from a criminal
proceeding to a civil proceeding and does not become a proceeding in the
suit." Then he went on to point out that the criminal court still retains
its jurisdiction because it could withdraw the reference from the civil court
at any. time and also because the ultimate decision with the respect to the
dispute between the parties was to be made by the Magistrate and not by the
civil court.
All this, according to the learned Judge,
would show that the proceeding even before the civil court would not be a civil
proceeding and the idea of pecuniary jurisdiction of a court being foreign to
the Code of Criminal Procedure it was not necessary to (1) 1964 All. L. J. 256.
(2)A.I.R. 1959-All. 467.
397 ascertain whether the court to which a
reference was made under s. 146(1) Cr. P.C. had pecuniary jurisdiction over the
subject matter of the dispute or not. This' decision ignores the vast 'body of
authority which is to the effect that when a legal rightis in dispute and the
ordinary courts of the country are seized of such dispute the courts are
governed by the ordinary rules of procedure applicable to them. Two of the
decisions are Adaikappa Chettiar v. Chandrasekharca Theyar(1) and Maung Ba Thaw
v. Ma Pin(1) and also a decision of this Court which proceeds upon the same view.
Thus in South Asia Industries (P) Ltd. v. S. B. Sarup Singh(1) it was held that
where a statute confers a right of appeal from the order of a tribunal to the
High Court without any limitation thereon 'the appeal to the High Court will be
regulated by the practice and procedure obtaining in the High Court. We would
also like to refer to the decision of this Court in Naravan Row v. Ishwarlal(1)
in which it was held that there is no reason for restricting the expression
"civil proceeding" only to those proceedings which arise out of civil
suits or proceedings which are tried as civil suits. Though this decision was
concerned with the meaning of the words "civil proceeding" used in
Art. 133(1)(c) of the Constitution the reasoning behind it sufficiently repels
the extreme contention of Mr., Goyal that a proceeding stemming from a criminal
matter must always bear the stamp of a criminal proceeding. Then, according to
Mr. Goyal, when a magistrate refers a question as to which party was in
possession at the relevant date what be does is to delegate that duty,
initially resting upon him, to the civil court. In performing that duty the
civil court would, therefore, be acting as a criminal court just as the
magistrate would be doing where he has to decide the question himself. The two
Privy Council decisions we have referred to sufficiently answer this
contention. No doubt, the Magistrate, while discharging his function under the
Code of Criminal Procedure under s. 145(1), would be exercising his criminal
jurisdiction because that is the only kind of jurisdiction which the Code
confers upon the magistrates but when the magistrate refers the question to a
civil court he does not confer a part of his criminal jurisdiction upon the
civil court. There is no provision under which he can clothe a. court or a
tribunal which is not specified in the Criminal Procedure Code with criminal
jurisdiction We are, therefore, unable to accept the contention of Goyal.
Mr. Iyengar tried to put the matter in a
somewhat different way. In the first place. according to him, if we hold that
the proceeding before the civil court is a, civil proceeding then all the rules
of procedure contained in the Civil Procedure Code,. including those relating
to appeals or revision would apply to the proceeding. This.
(1) 74 I.A. 264.
(2) 61 I.A. 158.
(3)[1966].2 S.C.R. 756.
(4) A.I.R. 1956 S.C.1818 398 he points out,
would be contrary to the provisions of s.
146(1-P) of Code of Criminal Procedure which
bar an appeal,review or revision from any finding of the civil court. From this
he wants us to infer that the proceeding does not take the character of a civil
proceeding even though it takes place before a civil court. We are not,
impressed by this argument. If sub-s. (1-D) had:-, not been enacted (and this
is really a new provision) an appeal or revision application would have been
maintainable. Now that it is there, the only effect of it is that neither an
appeal nor a revision is any longer maintainable. This consequence ensues
because of the express provision and not because the proceeding, before the
civil court is not a civil proceeding.
The next contention-and it was the one
pressed strenuously by him-was that a proceeding upon a reference under s.
146(1) entertained by a civil court not being
an original proceeding the provisions of s. 141, C.P.C. are not attracted and
that, therefore. those provisions of the Civil Procedure Code which relate to
suits are not applicable to a proceeding undertaken by a civil court upon a
reference to it under s. 146(1) of the Code of Criminal Procedure. A number of
cases dealing with this point were brought to our notice either by him or by
Mr. Goyal. It seems to us, however, that those cases are not relevant for
deciding the point which is before us. In passing, however, we may mention the
fact that a full bench of the Allahabad High Court has held in Maha Ram v.
Harbans(1) that the civil court to which an issue on the quest-ion of
proprietary rights has been submitted by a revenue court under S. 271 of the Agra
Tenancy Act, 1926 has jurisdiction to refer the issue to arbitration under
paragraph I of Schedule II of the C.P C. This decision is based upon the view
that by virtue of S. 141, C.P.C. the provisions relating to arbitration
contained in the second schedule to the Code of Civil Procedure before the
repeal of that schedule applied to a proceeding of this kind. Similarly
recently this Court has held in Munshi Ram v. Banwarilal(2) that under s. 41 of
the Arbitration Act and also under s. 141, C.P.C. it was competent to the court
before which an award made by an arbitration tribunal is filed for passing a
decree in terms thereof to-permit Parties to compromise their dispute under O.
XXIII, r. 3, C.P.C. Though there is no discussion, this Court has acted upon the
view that the expression "'civil proceeding" in s. 141 is not
necessarily confined to an original proceeding like a suit or an application
for appointment of a guardian etc. but that it applies also to a proceeding
which is not an original proceeding. Thus, though we say that it is not an
original to consider in this case weather. the proceeding before the civil
court is a civil proceeding as contemplated by s. 141 or not there is good
authority for saying that it is a civil Proceeding.
All that we are concerned with in this case
is whether (1) I.L.R. [1941] All.193 (2) I.L.R. 1962 S.C.903.
399 the provisions. of s. 24(1)(b) of the
Code of Civil Procedure are available with respect to a proceeding arising out
of a reference ,,under s. 146(1), Cr. P.C. The relevant portion of s. 24 may,
therefore be set out. It reads thus:"On the application of any of the
parties and after notice to the parties and after hearing such of them as
desired to be heard, or of its own motion without such notice, the High Court
or the District Court may at any stage(a) (b) withdraw any suit, appeal or
other proceeding pending in any Court subordinate to it, and (ii) transfer the
same for trial or disposal to any Court subordinate to it and competent to try
or dispose of the same; or III..............................
It plainly speaks of "other proceeding
pending in any court subordinate to it" and not only to the civil
proceeding pending before a subordinate court. The decisions of the Privy
Council and one decision of this Court which we have earlier quoted would
warrant the application of the provisions of the Code of Civil Procedure
generally to a proceeding before a civil court arising out of a reference to it
by a Magistrate under s. 146(1) of the Code of Criminal Procedure. The
expression "proceeding" used in this section is not a term of art
which has acquired a definite meaning. What its meaning is when it occurs in a
particular statute or a provision of a statute will have to be ascertained by
looking at the relevant statute. Looking to the context in which the word has
been used in s. 24(1)(b) of the Code of Civil Procedure it would appear to us
to be something going on in a court in relation to the adjudication of a
dispute other than a suit or an appeal.
Bearing in mind that the term
"proceeding" indicates something in which business. is conducted
according to a prescribed mode it would be only right to give it, as used in
the aforesaid provision, a comprehensive meaning so as to include within it all
matters coming up for judicial adjudication and not to confine it to a civil
proceeding alone. In a recent case Kochadai Naidu v. Nagavasami Naidu(1)
Ramachandra lyer J., (as he then was) was called upon to consider the very
question which arises before us.
The learned Judge held (1) I.L.R. [1961] Mad.
413.
400 that a proceeding before a civil court
arising out of a reference to it under S. 146(1), Cr. P.C. can be transferred
by the High Court or District Court under S. 24, C.P.C. because it is in any
case a proceedings. He has also considered this question from the angle of the
nature of the proceeding and expressed the view that the proceeding was a civil
proceeding to which the procedure for suits could, with the aid of s. 141,
C.P.C. be applied. If indeed the term "proceeding" in s. 24 is not
confined to a civil proceeding there is no need whatsoever of taking the aid of
S. 141, C.P.C. Upon this view we dismiss the appeal.
Appeal dismissed.
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