Amar Kaur and Another vs Kulbir Singh and Others

A.S. Anand, C.J.—Through the medium of these two petitions the petitioners seek transfer of their claim petitions pending with the Motor

Accidents Claims Tribunal, Srinagar to its counterpart at Jammu, principally on the ground of the convenience of the parties, though the accident

out of which the claim petitions arose allegedly occurred near Qazigund in Kashmir province. The respondents have submitted in writing that they

have no objection to the transfer of the petitions from the tribunal at Srinagar to the tribunal at Jammu. Ordinarily, the agreement of the parties

should have sufficed to transfer the claim petitions from Srinagar to Jammu but the question is not whether there are grounds to grant the

petitioners' prayer but one of its permissibility in law and that controversy in turn would require determination of whether the High Court has the

power to transfer a claim petition, from one claims tribunal to another in the State.

The power to transfer civil cases is provided in Section 24 of the Civil P.C. It provides :

24.(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own

motion without such notice, the High Court or the District Judge may at any stage -

(a) transfer any suit, appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it and competent to try or

dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(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(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.

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Section 24 C.P.C. empowers the High Court to withdraw a case pending in any subordinate Court and try it itself or transfer the same to another

subordinate Court for its trial. The section talks of ""subordinate Court"" and the expression ""tribunal"" is absent in the section. Whether a claims

tribunal can be equated with ""any court subordinate to the High Court"" is the question, the answer to which would determine whether or not the

High Court has the power to transfer a claims petition from one claims tribunal to another in the State?

There is divergence of opinion amongst the courts in the country as to whether a claims tribunal can be considered to be a court subordinate to

the High Court Whereas some of the courts have held in the affirmative, the others have decided in the negative. But to apply Section 24 C.P.C. to

the claims tribunal, it is not necessary to refer to the differing views of the High Courts on the point in view of the pronouncement of the Supreme

Court in Bhagwati Devi v. I. S. Goel reported as 1983 ACJ 123 where the Supreme Court referred to its earlier pronouncement in State of

Haryana Vs. Smt. Darshana Devi and Others, which arose out of a decision of the Punjab and Haryana High Court The question-before the

Punjab & Haryana High Court was whether a claimant before the Motor Accidents Claims Tribunal could claim the benefit of Order XXXIII

C.P.C. to the proceedings before the claims tribunal. The tribunal had negatived the claim holding that Order XXXIII C.P.C. was not applicable to

the proceedings before the tribunal. The High Court, however, overruled the tribunal against which the State of Haryana filed an appeal to the

Supreme Court which approved the reasoning of the High Court holding that Order XXXIII C.P.C. also applied to the tribunals which have all the

trappings ""of a Civil Court"" and equated the Tribunal' with a 'Civil Court'. In Bhagwati Devi's case (supra) the matter arose in the context' of the

power of the Supreme Court u/s 25 C.P.C. to transfer suits and other proceedings, inter alia, from one' Civil Court' in one State to another Civil

Court' in any other State. Their Lordships were considering the applicability of Section 25 C.P.C. to the transfer of the proceedings from one

tribunal to another tribunal. They opined :

We are of the view that the Motor Accidents Claims Tribunal constituted under the M. V. Act is a Civil Court for the purposes of Section 25 of

the Civil P.C. We are satisfied that the cases before us are fit cases for being transferred from the file of the Motor Accidents Claims Tribunal,

Moradabad to the file of the Motor Accidents Claims Tribunal, Delhi.....

In Noreen R. Srikantaiah Vs. L. Dasarath Ramaiah, Gulbarga and Another, a Division Bench of that court was specifically considering the

question whether the High Court in a State can transfer a petition from one Motor Accidents Claims Tribunal to another u/s 24 C.P.C. and relying

upon the law laid down in Bhagwati Devi's case 1983 ACJ 123 (SC)(supra) opined that it could. The Division Bench held that there is no

distinction in the concept of a Civil Court between Section 24 and Section 25 C.P.C. The Bench noticed that the requirement of the element of

'subordination' envisaged in Section 24 so as to render the power u/s 24 exercisable, is understandable not in Section 25 and then after a detailed

discussion, held :

In view of the foregoing, we hold that the Motor Accidents Claims Tribunal is a ""Court'' subordinate to the High Court within the meaning and for

purposes of Section 24 of the Civil P. C. Transfer of a case from one Tribunal in the State to another is permissible.

I am in agreement with this view which is based on the decision in Bhagwati Devi's case and find that for the purposes of Section 24 C.P.C., the

Claims Tribunal is a 'Court' subordinate to the High Court. Even otherwise, the view appears to be rational and aimed at avoiding hardships and in

the aid of justice. The procedural laws are the handmade tools of justice and require to be interpreted with a view to advance the cause of justice

and the interpretation placed by the Division Bench of the Karnataka High Court aims in that direction. The interpretation would also aim at

avoiding situations where the transfer from one tribunal to the other becomes necessary and essential as for example, where one tribunal for

personal reasons cannot try a claims petition or the like situations.

I also find support for my view from the provisions of Sec. 104 of the Constitution of Jammu & Kashmir. This section reads :

The High Court shall have the superintendence and control over all courts for the time being to its appellate or revisional jurisdiction and all such

courts shall be subordinate to the High Court.

A plain reading of the section shows that the High Court has superintendence and control over all courts subject to its appellate or revisional

jurisdiction and that all such 'Courts' shall be subordinate to the High Court. The High Court exercising jurisdiction over the territory of the State is

the highest court in the State and the framers of the Constitution vested it with supervisory powers over all the 'subordinate courts', qualifying that

all 'Courts' which are subject to the appellate or revisional jurisdiction of the High Court shall be ""subordinate Courts"". There is, of course, a

conspicuous omission of the word ""tribunal'' in Sec. 104 of the State Constitution, unlike in Article 227 of the Constitution but all that the omission

would imply is that the High Court shall have superintendence and control only over such tribunals which are subject to ""its appellate or revisional

jurisdiction"" and all such tribunals would be deemed to be courts subordinate to the High Court. Thus, where the statute constituting a tribunal itself

provides for vesting the ""appellate or revisional jurisdiction"" in the High Court, such a 'tribunal' would be deemed to be a 'court' subordinate to the

High Court for the purposes of Section 104 of the Constitution.

Section 110-D of the Motor Vehicles Act vests the appellate jurisdiction in the High Court in respect of the award and certain other specified

orders of the claims tribunal. Thus, in terms of Section 104 of the State Constitution, ex facie, a tribunal constituted under the Motor Vehicles Act,

from which an appeal lies to the High Court u/s 110D, would be a 'court subordinate' to the High Court and subject to its superintendence and

control as envisaged by Section 104 of the State Constitution. The High Court can, therefore, in an appropriate case invoke its powers u/s 104 of

the State Constitution in the aid of justice, where other statutes are silent and even withdraw a petition from one such tribunal and transfer it to

another tribunal in the State.

So far as the law laid down by a Division Bench of this High Court (Bhat and Rizvi JJ.) in Abdul Gaffar Gujree Vs. Mohammad Phaphoo and

Others, holding that the Claims Tribunal is not* a ""Civil Court"" subordinate to the High Court or subject to its revisional jurisdiction u/s 115,

C.P.C. is concerned, it is not relevant for the purposes of discussion in hand because under the Motor Vehicles Act, revisional jurisdiction has not

been specifically vested in the High Court unlike the appellate jurisdiction u/s 110-D of the Act Moreover, whether or not the Division Bench

judgment, holding '""broadly"" that the claims tribunal is not a ""Civil Court subordinate to the High Court"" is good law in view of the law laid down in

1983 ACJ 123 and State of Haryana Vs. Smt. Darshana Devi and Others, cases respectively, is a matter which may require consideration in an

appropriate case at an appropriate time and need not detain me in this case. It is, however, pertinent to notice here that both the above judgments

of the apex court have not been noticed by the Division Bench, as presumably the same were not brought to its notice.

Thus, in view of the above discussion, I hold that a Claims Tribunal constituted under the Motor Vehicles Act is a court subordinate to the High

Court for the purposes of Section 104 of the Constitution of Jammu & Kashmir and subject to its superintendence and control and that both by

virtue of the provisions of Section 104 of the State Constitution and S. 24, C.P.C. it is permissible for the High Court to withdraw a claims petition

or proceedings from one tribunal in the State and transfer it to another tribunal. Consequently, I allow the petitions and transfer the proceedings in

the claim petitions titled Amar Kaur and Anr. v. Kulbir Singh & , others and claims petition titled Jaswant Kaur and others v. Kulbir Singh and

others, pending before the Motor Accidents Claims Tribunal Srinagar 10 the Motor Accidents Claims Tribunal, Jammu, for disposal in accordance

with law. The tribunal at Srinagar shall send the record to the tribunal at Jammu. Parties through their learned counsel, are directed to appear

before the tribunal at Jammu on 20-2-1937.