Report No. 14
11. Powers under the Succession Act (Delegation recommended).-
The matters arising under the Indian Succession Act are proceedings relating to the grant, etc., of probate, letters of administration and succession certificates. Section 264 of the Act confers upon the district judge jurisdiction to grant and revoke probate and letters of administration in all cases within his district. Under section 265, the High Court may appoint such judicial officers within any district as it thinks fit to act for the district judge as delegate to grant probate and letters of administration in non-contentious cases within such local limits as it may prescribe; this has in fact, been done in a number of States by delegation of the said powers to the civil judges.
Similarly, several High Courts (Assam, Bombay, Madhya Pradesh, Madras, Punjab and West Bengal) have invested all subordinate judges with all the powers of the district judge to take cognizance of any contested proceeding under this Act arising within the local limits of their respective jurisdictions that may be transferred to them by the district judge. Under section 371, the district judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, within whose jurisdiction any part of the property of the deceased may be found, may grant a succession certificate.
Under section 388, the State Government is authorised to invest any court inferior in grade to a district judge with powers under Part IX to exercise the functions of a district judge relating to the grant of succession certificates. In exercise of this authority, all civil judges have been invested with this jurisdiction in Bombay and Madras. We recommend that in other States also where such powers have not been given to the subordinate judicial officers they should be so empowered.
12. The Guardians and Wards Act (Authorisation of subordinate judges).-
Under section 4(5) of the Act, 'Court' means the district court having jurisdiction to entertain an application under the Act. However, under section 4A the High Court may by general or special order, empower any officer exercising original civil jurisdiction subordinate to a district court, or authorise the judge of any district court to confer power upon any such officer subordinate to him to dispose of any proceedings under the Act transferred to such officer under the provisions of the section. Sub-section (2) also empowers the district judge to transfer at any stage any proceeding under the Act pending in his court for disposal to any officer subordinate to him and empowered under sub-section (1).
Notwithstanding a view to the contrary expressed by the Bombay High Court, we would strongly urge upon all the High Courts to make a large use of section 4A and to empower all senior or subordinate judges in the State to dispose of proceedings under the Act. As, under our scheme of distribution of civil work the subordinate or senior judges would be exclusively occupied with the trial of original proceedings, both ordinary and special, it is only in the fitness of things that original proceedings arising under the special Acts should also be dealt with by them.
13. The Lunacy Act.-
Under section 37 of the Act, jurisdiction has been conferred upon the High Courts of Calcutta, Madras and Bombay to take cognizance of proceedings under this Act arising within the Presidency towns. Under section 62, whenever a person not subject to the jurisdiction of the Courts mentioned in section 37 is possessed of property and is alleged to be lunatic, jurisdiction is conferred upon the district court within whose jurisdiction such person is residing, to direct an inquisition for the purpose of ascertaining whether such person is of unsound mind.
The district court has been defined to mean the principal court of original jurisdiction in any area outside the local limits for the time being of the presidency towns. As proceedings under the Act involve the status of an alleged lunatic and may also involve difficult questions of law and fact, we are of the view that while provision should be made in the Act enabling delegation of the powers of the district judge, such delegation should be made only to a subordinate judge or an officer of a similar rank but not to a munsif. We also recommend that State Governments should, as far as possible, make use of this power of delegation.
14. The Land Acquisition Act (Authorisation of senior and junior civil judges).-
The power to try references under section 18 of the Land Acquisition Act has been conferred on the court. Section 3(d) defines "Court" as the principal civil court of original jurisdiction unless the appropriate Government has appointed, as it is empowered to do, a special judicial officer within any specified local limits to perform the functions of the court under the Act. The questions arising in land acquisition references, though important, are not so difficult as not to be entrusted for adjudication to an officer of the rank of a subordinate or senior civil judge.
The Civil Justice Committee had suggested1 that other judicial officers may be empowered by the State Governments to entertain and dispose of references under the Land Acquisition Act. In Madras, even munsifs are invested with jurisdiction to try cases under the Land Acquisition Act where the amount of compensation claimed falls within the limits of their pecuniary jurisdiction.
In Bombay where such jurisdiction has been conferred upon civil judges of the senior division, the High Court does not favour the extension of such jurisdiction to civil judges of the junior division or munsifs as they are called in most other States. We are of the view that the States where such delegation does not exist may well follow the example of Madras with advantage. In any case, they should, following Bombay, invest the courts of subordinate judges with jurisdiction under the Land Acquisition Act in order to afford necessary relief to the district court.
1. Report, p. 93, para. 13.
15. Insolvency jurisdiction.-
Section 3(1) of the Provincial Insolvency Act confers on the district court jurisdiction to exercise the powers under the Act. The proviso thereto empowers the State Governments to invest any subordinate court with jurisdiction to try any class of cases under the Act. We recommend that all civil judicial officers may be invested with insolvency jurisdiction. Such powers have been conferred upon these officers in Bombay and Madras.
16. All officers to be empowered (Matrimonial jurisdiction) (Amendments suggested).-
The Indian Divorce Act, 1869, the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955: Further relief can be given to district judges by investing the subordinate judges with jurisdiction in certain matrimonial cases which is now exclusively vested in the former. Under the Special Marriage Act of 1954, all matrimonial proceedings under Chapters V and VI are to be instituted in the district court within the local limits of whose jurisdiction the marriage was solemnized or the husband and wife reside or last resided together or in the city civil court.
Under this Act, therefore, the district court alone has jurisdiction in the mofussil to take cognizance of matrimonial proceedings. In contrast, section 3(b) of the Hindu Marriage Act of 1955 enables the State Government by notification in the official gazette to authorise any civil court to deal with proceedings under this Act. We do not see any reason why a similar provision should not be made in respect of cases arising under the Special Marriage Act of 1954 by an appropriate amendment.
Similarly, under the Indian Divorce Act, all proceedings are instituted either in the district court or the High Court. Jurisdiction under this Act must be exercised by the district judge alone and not even by an additional district judge. In respect of proceedings under this Act also we recommend that the definition of district court should be amended on the analogy of section 3(b) of the Hindu Marriage Act, 1955. We recommend that State Government might make larger use of their powers by empowering subordinate judges to try and dispose of cases under these Acts.
17. Proceedings relating to endowments and public charities (Subordinate courts to be empowered).-
Section 92 of the Civil Procedure Code and section 18 of the Religious Endowments Act, 1863: Under section 92 of the Code of Civil Procedure, the principal civil court of original jurisdiction or any other court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of a subject-matter of the trust is situate can try a suit of the description referred to therein concerning public charities. Similarly, section 18 of the Religious Endowments Act confers on the civil court exclusive jurisdiction to entertain applications or suits referred to in it.
Section 2 defines the words "Civil Court" and "Court" to mean the principal court of original jurisdiction, that is, the court of the district judge or any other court empowered in that behalf by the State Government. We recommend that the State Government should make as large a use as possible of these powers by empowering subordinate judges to try and dispose of cases under section 92 of the Civil Procedure Code and section 18 of the Religious Endowments Act.
18. State Acts.-
We have not been able to examine the various State enactments under which special jurisdiction has been conferred on the district judges; but we would suggest that the State Governments should undertake a general review of these, in consultation with the High Courts with a view to give relief to the district judges by transferring their work under special enactments to subordinate judges and munsifs wherever possible.
19. Summary procedure (Statutory provisions).-
We have next to consider other proposals for speeding up the trial and avoiding delay in the subordinate courts. Our Questionnaire invited opinion on the feasibility of the extension of the summary procedure contemplated by section 128(2)(f) and Order XXXVII of the Code of Civil Procedure to subordinate courts. Under section 128(2)(f), the High Courts have the power to make rules providing for summary procedure in-
(1)Suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on an express or implied contract; or on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or on a guarantee where the claim against the principal is in respect of a debt or a liquidated demand only or on a trust, or
(2) Suits for recovery of immovable property, with or without rent or mesne profits, by a landlord against a tenant whose term has expired or has been only determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant.
Order XXXVII of the Code lays down the procedure for the trial of such suits. The order applied only to the High Courts of Calcutta, Madras and Bombay. A power to extend it to other courts has, however, been given and it has been extended to the three Presidency Small Causes Courts. Further, in exercise of their rule-making powers certain High Courts have extended the provisions of Order XXXVII to other Courts as well. In Bombay, it has been extended to the Bombay City Civil Court and, in Madras, to the Madras City Civil Court and also all Courts of subordinate judges and munsifs.
In Calcutta, it has been extended to all civil courts except the courts of small causes in the district of 24 Paraganas, in Uttar Pradesh to any court in the Province of Agra exercising small cause powers and in the Punjab to the courts of district judges and subordinate judges, first class, in the Province of Delhi and similar courts • in the district of Amritsar.
The procedure under Order XXXVII is applicable only to suits on negotiable instruments. A suit under this Order is instituted in the ordinary form by presenting a plaint but the summons is issued in Form No. IV in Appendix B of the Code. The essence of a summary suit under Order XXXVII is that the defendant is not, as an ordinary suit, entitled as of right to defend the suit. He must apply for leave to defend within ten days from the date of service of summons upon him and such leave will be granted only if the affidavit filed by the defendant discloses such facts as will make it incumbent upon the plaintiff to prove consideration or such other facts as the court may deem sufficient for granting leave to the defendant to appear and defend the suit. If no leave to defend is granted, the plaintiff is entitled to a decree. The principle underlying the summary procedure is to prevent unreasonable obstruction by a defendant who has no real defence.
21. Bombay amendment.-
The Bombay High Court has extended' this procedure to all the suits mentioned in 128(2)(f) in addition to the suits on negotiable instruments. Further, the procedure has to some extent been made less rigorous by an amendment of rule 3 of Order XXXVII. The Bombay amendment requires a plaintiff to serve with the writ of summons, a copy of the plaint and the exhibits, and the defendant may, at any time, within ten days of such service enter only an appearance in the first instance.
Notice of the appearance must be given to the plaintiff's attorney and thereafter the plaintiff shall serve on the defendant a summons for judgment returnable in less than ten days from the date of service, supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. It is only after the service of this additional summons for judgment that the defendant is required within ten days thereof to apply for leave to defend.
22. Extension recommended.-
A general extension of the summary procedure to all courts of subordinate judges and munsifs has not been advocated nor do we recommend any such far-reaching measure. We understand that although Order XXXVII has been applied to the courts of all subordinate judges and munsifs in Madras, it is not in use and has virtually become, a dead letter so far as subordinate courts in the mofussil of that State are concerned. The High Court of Allahabad is opposed to its general extension.
The Bombay High Court is in favour of extending it to the courts in such commercial towns as are recommended by the High Court. The Civil Justice Committee made a similar proposal. Order XXXVII was extended to certain courts in Bengal, Uttar Pradesh and the Punjab, probably, on the basis of that recommendation. We suggest that the High Courts should extend the rules of summary procedure, as amplified in Bombay, to subordinate courts in important industrial and commercial towns, like Ahmedabad, Asansol, Kanpur and Jamshedpur.
23. Third party procedure.-
Section 128(2)(e) of the Civil Procedure Code also gives power to the High Courts to make rules prescribing what is known as third party procedure. So far as we are aware, except on the Original Sides of the High Courts of Calcutta, Madras and Bombay, in the Bombay City Civil Court and in the moffusil of Madras such rules are not in force in other courts.
The third party procedure is applicable where, in a suit, a defendant claims against any person not already a party to the suit, any contribution or indemnity or any relief or remedy relating to or connected with the original subject-matter of the stilt, or where any question or issue relating to or connected with the same subject-matter as substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and defendant but as between the plaintiff and the defendant and the third party or between any or either 'of them.
In such cases, the defendant may, with the leave of the court, give a third party notice stating the nature and the ground of the claim or the relief or the remedy claimed or the nature of the question or issue to be determined. The third party then becomes a party to the suit with the same rights in respect of its defence against any claim made against him as if he had been duly sued in the ordinary way by the defendant. The rules further provide for the consequences of the third party's failure to appear. At present, the remedy of a defendant who is entitled to any contribution, indemnity or relief as aforesaid, against a third party has to be enforced by way of a separate suit.
In our Report on the Liability of the State in Tort, we have made a proposal for an appropriate provision in the Civil Procedure Code making it obligatory "to implead as party to a suit in which a claim for damages against the State is made, the employee, agent or independent contractor for whose act the State is sought to be made liable. Any claim based on indemnity or contribution by the State may also be settled in such proceedings as all the parties will be before the Court"1 The High Courts may consider the advisability of extending the application of the third party procedure to commercial towns like Ahmedabad, Kanpur, Asansol and others. We would not recommend any larger extension of the third party procedure.
1. Report, p. 40, para. 66(IV)(iii).
24. Summary of recommendations.-
Our recommendations regarding the jurisdiction of civil courts can be summarised as follows:-
(1) Subordinate judges or senior civil judges should be invested in all States with unlimited pecuniary jurisdiction.
(2) The pecuniary jurisdiction of junior civil judges or munsifs should not be less than Rs. 5,000. Eventually, on the recommendation of the High Court, the jurisdiction of the junior civil judge or the munsif should be raised to Rs. 10,000.
(3) On their first appointment, probationers or junior munsifs should be posted to centres where there are more judges than one and at the start be entrusted only with the trial of simple suits or suits of small value.
(4) All subordinate judges and munsifs should be empowered to grant succession certificates and subordinate judges should also be authorised to dispose of contentious proceedings for the grant of probate or letters of administration.
(5) The High Courts should make larger use of section 4A of the Guardians and Wards Act and empower all senior civil judges or subordinate judges to dispose of proceedings under that Act.
(6) The Indian Lunacy Act of 1912 should be amended so as to empower subordinate judges to exercise the powers of the district judge under the Act.
(7) The presiding officers of all civil courts should be empowered to hear references under the Land Acquisition Act. An immediate beginning should be made by investing subordinate judges with this power.
(8) All civil judicial officers should be invested with insolvency jurisdiction.
(9) The Indian Divorce Act and the Special Marriage Act should be amended so that courts subordinate to the district court might be empowered to deal with proceedings under these Acts and jurisdiction under these Acts might be conferred upon subordinate judges.
(10) The State Governments should freely confer jurisdiction under the Religious Endowments Act, 1863, and under section 92 of the Civil Procedure Code on the courts of subordinate judges.
(11) The State Governments should in consultation with the High Courts examine State enactments conferring special jurisdiction on the district judge and consider the advisability of transferring the work to subordinate courts.
(12) Order XXXVII of the Civil Procedure Code might be amended on the lines of the Bombay amendment. The High Courts should extend such summary procedure to subordinate courts in important commercial towns.
(13) The High Courts should consider the advisability of applying the third party procedure now used on the Original Sides of the High Courts to Courts in commercial towns.