Baldev Raj vs Somesh Sachdeo and Others

V.K. Khanna, J.—This revision is directed against the order of the IVth Additional District Judge, Allahabad dated 20th February, 1982.

A petition under Sections 12 and 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as the "Act") was filed before the District Judge, Allahabad. The District Judge, Allahabad transferred the petition, firstly to the court of the Vth Additional District Judge and thereafter to the court of IVth Additional District Judge. The IVth Additional District Judge at the very outset examined the question as to whether the petition could be transferred by the District Judge to his court in view of the provisions of Section 4A of the Act. In the impugned order it has been held that the petition could not have been transferred.

The applicant has urged that the court below has misconceived the legal position and has not exercised the jurisdiction vested in him. Before me the learned Counsel for the opposite parties has not disputed the contention raised by the applicant and has urged that the transfer of the petition to the IVth Additional District Judge was validly made by the District Judge.

Section 4(4) of the Act defines "District Court" as "District Court has the meaning assigned to that expression in the Code of Civil Procedure, and includes a High Court in the exercise of its ordinary original civil jurisdiction."

Section 4A of the Act provides the power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers. Sub-clauses (1) and (2) of Section 4A, which are relevant, are as follows:

(1) The High Court may, by general of special order, empower any officer exercising original civil jurisdiction subordinate to a District Court or authorise the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer tinder the provisions of this section.

(2) The Judge of a District Court may by order in writing transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under Sub-section (1).

Before me none of the parties could produce any general or special order passed by the High Court, under Sub-section (1) of Section 4A of the Act conferring jurisdiction on subordinate Judicial Officers. In fact, the District Judge, Allahabad himself addressed a communication to the Registrar of this Court after the passing of the impugned order seeking information about any such general or special order passed by the High Court, as in his judgeship no such general or special order existed. On enquiries made form the Registrar of the High Court no such general or special order has been brought to the notice of the Court It is thus clear that the High Court has not passed any general or special order u/s 4A of the Act. Thus the order of the District Judge transferring the case to the IVth Additional District Judge could not be justified under the provisions of Section 4A(2) of the Act.

However, the crucial question which arises for consideration is as to whether u/s 8 of the Bengal, Agra and Assam Civil Court Act, the District Judge could assign this petition to IVth Additional District Judge and after the assigning of the aforesaid petition the Additional District Judge would exercise the same powers as of the District Judge. Similar controversy arose before this Court in the case of Gangadeen Vs. Kanhaiya Lal and Others, . After examining the provisions of Bengal, Agra and Assam Civil Courts Act it was held:

The Bengal Agra and Assam Civil Courts Act...are in respect of jurisdiction of the court.

Section 8 (2) of the Bengal, Agra and Assam Civil Courts Act does not restrict the powers of the District Judges...can be instituted in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the Civil Court.(Portions from quotation omitted-Editor)

A Bench of the Calcutta High Court while considering the jurisdiction of Additional Judges in Nibaran Chandra Mukherjee Vs. Sital Chandra Bag, held:

An Additional Judge to whom u/s 8 (2) of the Bengal Civil Courts Act (12 of 1887), is assigned the function of District Judge relating to all suits cognizable by the District Judge under any Act in force for the time being is empowered to exercise the same powers, as the District Judge in suits u/s 92 of the Code of Civil Procedure. In such cases it is not necessary that the court should be empowered by the local Government.

Provisions of Punjab Courts Act, 1918, which are similar to the provisions of Bengal, Agra and Assam Civil Courts Act, came up for consideration before the Supreme Court in the case of Kuldip Singh Vs. The State of Punjab and Another, , where it was held:

Punjab Courts Act nowhere speaks of an Additional District Judge or of an Additional Judge to the District Court; also, the Additional Judge is not a Judge of co-ordinate judicial authority with the District Judge. Section 21(1) states that:

When the business pending before any District Judge requires the aid of an Additional Judge or Judges for its speedy disposal, the State Government may appoint such Additional Judge as may be necessary.

But these Judges cannot discharge all the judicial functions of the District Judge. Their jurisdiction is a limited one and is limited to the discharge of such functions as may be entrusted to them by the District Judge. (Emphasis provided). Section 21(2) states that:

An Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him.

It is true that Sub-section (2) goes on to say that "in the discharge of those functions he shall exercise the same powers as the District Judge" but these powers are limited to the cases with which he is entitled to deal.

In my opinion, the view of the Additional District Judge that u/s 8 (2) of the Bengal, Agra and Assam Civil Courts Act the District Judge could not assign his functions is not correct. In view of the decision of this Court in the case of Gaugadin (supra) and of the Supreme Court in the case of Kuldip Singh (supra) the District Judge could entrust the hearing of the petition u/s 8 (2) of the Bengal, Agra and Assam Civil Courts Act and in the discharge of those functions the IVth Addl. Distt. Judge would exercise the same powers as District Judge.

Sri Baldev Raj, the applicant, has however suggested that the District Judge in his order should have assigned the petition to the IVth Additional District Judge and should not have used the order ''transfer''. In my opinion, the words are not material and the purport of the order passed by the District Judge, Allahabad was to assign his functions of hearing the petition of the application u/s 8 (2) of the Bengal, Agra and Assam Civil Courts Act. The impugned order passed by the IVth Additional District Judge is, therefore, liable to be set aside. It may be mentioned that ''this court had ordered expeditious hearing of the petition and had even fixed a date for completion of the hearing. However, in view of the impugned order of the IVth Additional District Judge holding that he has no jurisdiction to try the petition, the hearing of the case could not commence. The IVth Additional District Judge will now see that the petition is now disposed of by him as expeditiously as possible. The record of the case will be sent down immediately.

In the result, the revision succeeds and is allowed. The judgment and order of the IVth Additional District Judge, Allahabad dated 20-2-1982 is set aside and he is directed to decide the petition as expeditiously as possible in accordance with law. However, in the circumstances of the case the parties shall bear their own costs.