Daya Ram vs Gian Chand

R.S. Pathak, C.J.—This is a tenant''s petition under Article 227 of the Constitution praying for the transfer of an eviction petition filed by the Respondent landlord before the Controller, Kangra.

There is a shop located at Dharamsala of which the Respondent is the landlord and the Petitioner is tenant. In 1974 the Respondent applied to the Controller, Kangra, for possession of the shop by the eviction of the Petitioner. The Petitioner filed an objection, and one of the grounds was that the property was located at Dharamsala and the Controller at Kangra had no jurisdiction to entertain the petition. At the same time, the Petitioner also applied to the learned District Judge, Kangra at Dharamsala, for transfer of the case from the Controller at Kangra to the Controller at Dharamsala. The learned District Judge dismissed the transfer application on the ground that Section 24 of the CPC could not be invoked. The Petitioner then filed the present petition under Article 227 of the Constitution. The relief expressly prayed for is the transfer of the eviction petition from the Controller at Kangra to the Controller at Dharamsala. But learned Counsel for the Petitioner also prays for the relief that the eviction petition pending before the Controller at Kangra be quashed on the ground of want of jurisdiction.

It becomes necessary therefore to consider (a) whether the eviction petition was rightly entertained by the Controller at Kangra and (b) whether the petition should be transferred from the Controller at Kangra to the Controller at Dharamsala.

The principal contention of learned Counsel for the Petitioner on the first point is that the territorial jurisdiction of the Controller at Kangra is limited to the town of Kangra itself and does not extend to the town of Dharamsala. Learned Counsel for the Respondent, however, urges that the Controller at Kangra has jurisdiction which extends to the town of Dharamsala also. On a perusal of the material before me it appears that learned Counsel for the Respondent is right.

Admittedly both the town of Kangra and the town of Dharamsala are situated in the district of Kangra. The district of Kangra was formerly a district in the composite State of Punjab, and is governed by the Punjab Courts Act, 1918. Section 26 of the Act provides that the jurisdiction to be exercised in original civil suits as regards the value by any person appointed to be a Subordinate Judge shall be determined by the High Court either by including him in a class or otherwise as it thinks fit. Pursuant to Section 26, the High Court at Lahore issued a notification No. 4 dated January 3, 1923, creating four classes of Subordinate Judges in respect of the jurisdiction exercised by them in civil suits. The classification was based on a pecuniary valuation of the suits. It was mentioned in the notification that when a Subordinate Judge is appointed to any of the classes constituted by this notification, he shall exercise the jurisdiction defined therein for the class to which he is appointed within the local limits of the civil district to which he may be posted from time to time. Section 27 of the Punjab Courts Act provides that the local limits of the jurisdiction of a Subordinate Judge shall be such as the High Court may define, and that when the High Court posts a Subordinate Judge to a district, the local limits of the district shall, in. the absence of any direction to the contrary, be deemed to be the local limits of his jurisdiction. Now, therefore, it appears that when a Subordinate Judge is posted at the town of Kangra the local limits of his jurisdiction correspond to the local limits of the district of Kangra. A number of notifications have been placed before me indicating that to be so.

Originally, the Punjab Urban Rent Restriction Act, 1947, held sway over this area. A notification dated April 18, 1947 was issued by the Governor of Punjab pursuant to Section 2(b) of that Act appointing all First Class Subordinate Judges in the Punjab to perform the functions of Controller under the said Act in the East Punjab area within the limits of their existing civil jurisdiction; Clearly, the First Class Subordinate Judge posted at Kangra was competent to exercise the functions of a Controller under that Act within the limits of the District of Kangra. Subsequently, when the Punjab Urban Rent Restriction Act, 1947, was repealed and re-enacted by the East Punjab Urban Rent Restriction Act, 1949, the operation of this notification continued in force by virtue of Section 22 of the Punjab General Clauses Act. That position has been affirmed by this Court in Laehhman Dass v. Smt. Sheilla Emile I.L.R 1975 . (Him) 189, Thereafter, the Himachal Pradesh Urban Rent Control Act, 1971, was enacted It superseded the East Punjab Urban Rent Restriction Act, 1949. On February 2; 1973, the Governor of Himachal Pradesh, in exercise of the powers conferred on him u/s 2(b) of the Himachal Pradesh Urban Rent Control Act, 1971 designated all Senior Subordinate Judges as well as those Subordinate Judges in Himachal Pradesh who were exercising the power of a Controller under the East Punjab Rent Restriction Act, 1949, to be Controllers u/s 2(b) of the Himachal Pradesh Urban Rent Control Act. Consequently, the Subordinate Judge at Kangra now became competent to perform the functions of a Controller u/s 2(b) of the Himachal Act and was entitled to exercise jurisdiction over the entire area respecting which he had so far exercised jurisdiction. In other words, he was competent to exercise jurisdiction as Controller under the Himachal Act throughout the district of Kangra. The notification of February 2, 1973, has recently been superseded by a notification dated July 7, 1975. This notification covers the entire sweep of the territories comprising the State of Himachal Pradesh, and by it the Governor of Himachal Pradesh has appointed all the Senior Subordinate Judges and all the Subordinate Judges in Himachal Pradesh to perform the functions of a Controller under the Himachal Pradesh Urban Rent Control Act within their respective territorial jurisdiction. The notification makes no difference to the amplitude of the territorial jurisdiction of the Subordinate Judge, Kangra, functioning as Controller under the Himachal Pradesh Urban Rent Control Act. He continues to exercise jurisdiction throughout the district of Kangra. For that reason he was entitled to entertain the eviction petition filed by the Respondent in respect of the shop located at Dharamsala.

The second point arising in this petition may now be noticed. Learned Counsel for the Petitioner urges that this Court has jurisdiction to transfer the eviction petition pending before the Controller at Kangra to the Controller at Dharamsala, and that there is good ground for directing such transfer. It seems to me unnecessary to enter into the grounds urged by learned Counsel for the Petitioner in support of the prayer for transfer. When the District Judge rejected the application of transfer made before him by the Petitioner he did so rightly on the ground that Section 24 of the CPC could not be invoked, but power has now been conferred on him by the amendment made in the Himachal Pradesh Urban Rent Control Act by the Amendment Ordinance of 1971. Sub-section (2) of the new Section 23A provides that the High Court or appellate authority may, on an application made to it or otherwise, transfer any proceeding pending before any Controller to another Controller within its jurisdiction, and the Controller to whom the proceeding is transferred may, subject to any special direction in the order of transfer, dispose of the proceedings. It is plain that the District Judge, Kangra at Dharam-sala, as an appellate authority, has jurisdiction to consider an application for transfer now made to him. It is a settled principle that where the High Court and a Subordinate Court enjoy concurrent jurisdiction in a matter the jurisdiction of the Subordinate Court should first be invoked by the party seeking relief. The principle is one of universal application. It is therefore desirable that the Petitioner should first apply to the learned District Judge, Kangra at Dharamsala, as the appellate authority constituted under the Himachal Pradesh Urban Rent Control Act, for transfer of the case. It will be necessary for the Petitioner to make a fresh application for transfer before him.

In the result, the petition fails and is dismissed. Having regard to the circumstances there is no order as to costs. The parties will appear before the Controller at Kangra on June 1, 1976. The Petitioner may, meanwhile, make an application before the learned District Judge, Kangra at Dharamsala, functioning as the appellate authority under the Himachal Pradesh Urban Rent Control Act, 1971, for transfer of the case.