Babui Dineshwari Kuer and Another vs Ram Narain Singh and Others

Mohamad Noor, J.—This application, originally presented as an appeal from an order, is directed against an order of the Subordinate Judge of Gaya, directing that a petition for ascertainment of mesne profits presented before the Munsif of Jehanabad be transferred to the Munsif, second Court, Gaya. The petitioners in this Court instituted before the Munsif, second Court, Gaya, a suit for possession with mesne profits of properties situated within thana Arwal in the District of Gaya which was then within the territorial jurisdiction of that Court. The trial Court dismissed the suit, but it was decreed with mesne profits by the first appellate Court and this decree was upheld by this Court. In the meantime, that is since the decision of the suit by the trial Court and before its disposal by this Court, a new Munsif was established at Jehanabad having territorial jurisdiction over the thana of Arwal. After the termination of the suit in this Court the plaintiffs namely the petitioners before us, filed an application for the ascertainment of mesne profits before the Munsif of Jehanabad who after hearing the parties passed a decree for a certain amount in their favour. No objection as to the jurisdiction of the Munsif of Jehanabad to ascertain the mesne profits was raised before him by the defendants They however, being dissatisfied with this decree, preferred an appeal to the District Court of Gaya which was heard by the Subordinate Judge who held that a proceeding for ascertainment of mesne profits was a proceeding in the suit, that the suit itself continued to be pending before the Munsif, second Court, Gaya, that the Munsif of Jehanabad had no jurisdiction to ascertain the mesne profits and pass a decree and that his decree was null and void for want of jurisdiction. He gave decisions on the merits of the plaintiffs'' claim favourable to them, but in the end, on the basis of his decision on the point of jurisdiction, allowed the appeal and directed that the application for ascertainment of mesne profits be transferred from the Munsif of Jehanabad to the Munsif second Court of Gaya. The plaintiffs being dissatisfied with this order presented an appeal to this Court which purported to be an appeal against an order returning the plaint for presentation to the proper Court. In view however of the decision of this Court in Sheikh Mohammad Abdul Ghafoor v. Mahtab Choudhury 1917 Pat 334, in which it was held that no appeal lay against an order returning petitions not being plaints, as Order 7, Rule 10 refers to the return of plaints only and not petitions, the petitioners sought the leave of this Court to treat their appeal against the order as a petition in revision. This was allowed on 13th February 1936.

I am clearly of opinion that the view taken by the learned Subordinate Judge on the question of jurisdiction is wrong. Once a new Court is established and the territorial limit of an existing Court is curtailed by notification of Government, the latter Court ceases to have jurisdiction over the area which is taken away from its jurisdiction and placed under the jurisdiction of the newly established Court. Similarly, if an area is taken out of the jurisdiction of one existing Court and placed under that of another, the former Court ceases to have jurisdiction over the cases of the area so taken out of its jurisdiction and the pending cases automatically placed under the jurisdiction of the latter Court. It is not enough that a Court should have jurisdiction over a suit at the time of its institution but that its jurisdiction must continue till the case is finally disposed of, subject of course to any order of transfer which may be passed by a competent authority.

In order to enable a Court to pass a decree in a suit it must possess the basic jurisdiction which comes under four heads: (1) Territorial, (2) pecuniary, (3) personal and (4) subject matter. It is essential (barring those cases in which there are doubts about the territorial limits) that the Court must possess all these jurisdictions at the time of the passing of the decree, otherwise it is void. Therefore, if a Court loses the territorial jurisdiction it cannot proceed to pass the decree, though it had such jurisdiction when the suit was instituted. In this particular case it is true, as the learned Subordinate Judge has held, that the suit must be treated as pending for the purposes of ascertainment of mesne profits, as the decree in respect of it was preliminary, and for certain purposes a suit remains pending between the preliminary and the final decrees; but the question is in which Court did it remain pending. The simple answer is that it remained pending in the second Court of the Munsif of Gaya up to the time when the Court at Jehanabad was not established and then automatically became pending in the Court of the Munsif of Jehanabad since that Court was established. Section 17, Bengal, Agra and Assam Civil Courts Act of 1887, runs thus:

Where any civil Court under this Act has from any cause ceased to have jurisdiction with respect to any case, any proceeding in relation to that case which, if that Court had not ceased to have jurisdiction, might have been had therein may be had in the Court to which the business of the former Court has been transferred.

It is obvious that the business of the second Court Munsif of Gaya in respect of thana Arwal which on the establishment of the Court at Jehanabad was transferred to that Court by the operation of the notification of the Local Government. Therefore, further proceeding in respect of the cases of that thana must be taken in the newly established Court. This seems to me to be the view taken by the Allahabad High Court in Jhandu Mal v. Pirthi (1907) 4 ALJ 213 where during the pendency of an appeal before the District Judge of Saharanpur the Munsif of Kairana in Muzaffarnagar from where the appeal came was transferred from the Judgeship of Saharanpur to that of Meerut. The District Judge of Saharanpur transferred the appeal to the District Judge of Meerut. It was held that the procedure adopted was correct, and that the Government notification transferring Muzaffarnagar from Saharanpur to Meerut was sufficient authority for the action of the District Judge of Saharanpur. The same principle may be deduced from the decision in Allah Dei Begam v. Kesri Mal (1906). 28 All 93 which was followed in Jhandu Mal''s case Jhandu Mal v. Pirthi (1907) 4 ALJ 213, I have just referred to, and in M. Subbayya v. Rachayya 1915 Mad 362. The finding of the learned Subordinate Judge is, therefore, erroneous and I would set it aside and also the order of transfer of the petition which is based upon it.

The next question is what consequential order should be passed in this case. In my opinion, the position after setting aside the order is that the appeal of the defendant remains undisposed of though a judgment up to a certain stage has been written. The position is as if the appeal is still sub judice. I would accordingly remand the case to the lower appellate Court. If practicable, the Subordinate Judge (Mr. R.N. Ghosh) who heard the appeal will finally dispose of it according to law, after giving the parties such further hearing (it any) as he may think fit. If, however, that learned Subordinate Judge be not available within a reasonable time, the appeal will be reheard either by the learned District Judge himself or by some other competent Court subordinate to him, as he directs. The application is allowed as stated above with costs: hearing fee five gold mohurs.

Saunders, J.

I agree.