Harihar Panda and Another vs Jambabati Pandani and Others

Narasimham, C.J.—This is a Civil Revision, against the order dated 11-9-63 of the District Judge of Bolangir-Kalahandi, in miscellaneous case No. 16 of 1963.

Title Suit No. 14 of 1961 was pending in me Court of the Subordinate Judge of Bolangir. That subordinate Judge was transferred as Subordinate Judge in the district of Kalahandi and was stationed at Bhowanipatna by the High Court on 1-8-63. The learned Dt. Judge, Bolangir-Kalahandi purporting to act u/s 24 of the CPC transferred the suit to the subordinate Judge of Kalahandi at Bhowanipatna for disposal. The plaintiff then filed a petition before the District Judge challenging the validity of the transfer (which was registered as Miscellaneous Judicial Case No. 16 of 1963) on the ground that as the Subordinate Judge of Kalahandi had no territorial jurisdiction over the district of Bolangir-Patna he was not competent to try the suit and that the transfer made u/s 24 of the CPC was therefore invalid. The learned Dt. judge upheld this contention, cancelling his previous order for transfer, and directed title suit No. . 14 of 1961 to be transferred again to the file of the Subordinate Judge of Bolangir.

The point involved in this civil revision is a pure question of law and its decision depends upon the construction of the words "competent to try" occurring in Section 24(1) of the Civil Procedure Code, if these words are construed to include territorial jurisdiction also, of the transferee Court, the learned District Judge''s order must prevail. He has relied on Jannat Hussain v. Ghulam Kutubuddin Ahmed AIR 1820 Pat 29 and Ram Das and Another Vs. Habib Ullah, in support of his view that competence for the purpose of transfer u/s 24 of the, C. P. C. must include territorial jurisdiction also It he had cared to scrutinise any recent annotated edition of the CPC he would have noticed that we aforesaid views of the Patna and Allahabad High courts have been subsequently dissented from by almost all the other High Courts in India. Ram Das and Another Vs. Habib Ullah, on which the learned Dt. Judges relies was a judgment of a Division Bench consisting of Suleiman C. J. and Bajpal J. That judgment was delivered on 16-4-1931. In a subsequent judgment delivered by Suleiman C. J. and Kendal J. on 15-6-1932, which is reported in Kishore Lal Vs. Balkishan, , Suleiman C.J. himself gave reasons for "re-considering" his previous view and holding that territorial jurisdiction does not come within the meaning of the words "competent to try" occurring in Section 24 Civil Procedure Code, and that they must refer only to pecuniary jurisdiction. This later decision of the Allahbad High Court is cited in almost all the annotated editions of the CPC and there was no justification for the learned Dt. Judge to have over-looked the same. In Rajagopala Pandarathar v. Tirupathia Pillai AIR 1926 Mad 421, U. Maung Maung v. U Nyo AIR 1940 Rang 133, AIR 1942 1 (Oudh) and Felix Edward Geyer v. M. M. Geyer AIR 1949 Lah 34, Chouth Mar v. Bhonrilal AIR 1956 Raj 192 and Prabha Singh Surjit Singh Firm, Madras v. Narasimha Rao AIR 1957 AP 992 where the words "competent to try" occurring in Section 24, CPC came up for construction, the learned Judge held that those words do not include territorial jurisdiction. In fact, the re is no decision subsequent to Ram Das and Another Vs. Habib Ullah, , of any other High Court, In which the view taken there has been endorsed. It may therefore be taken as settled law that when the Dt. Judge exercises his power of transfer u/s 24 of the CPC the transferee court need not have territorial jurisdiction over the subject matier of the litigation if he is otherwise competent to try it. It is on this principle that transfers under this section are made from one civil Court within a district to another civil court outside that district. The learned District Judge should have kept himself up-to-date on this question of law.

Some support for this view is also found in a recent pronouncement of the Supreme Court in Seth Hiralal Patni Vs. Sri Kali Nath, . There their Lordships have pointed out the fundamental distinction between the territorial jurisdiction of a court to try a case on the one hand and its competence to try the case on the other. They observed that territorial jurisdiction can be waived because it does not go to the root of the case whereas the competence of a Court to try a case goes to the very root of the jurisdiction and refers to the inherent lack of jurisdiction by the Court. To quote their Lordships (at page 201) :

"It is well settled that the objection as to local jurisdiction of a court does not stand on the same tooting as an objection to to the competence of a court to try case. The competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived."

Thus there is a pronouncement of the Supreme Court also impliedly supporting the view taken by the majority of the High Courts in India to the effect that the competence to try a case refers to the inherent jurisdiction to try and not merely to territorial jurisdiction.

For these reasons this Civil Revision is allowed, the order of the District Judge dated 11-9-1963 is set aside and Title Suit No. 14 of 1951 is restored to the tile of the Subordinate Judge, Bhowanipatna for dispossal according te law. There will be no order for costs .

I am grateful to Shri B. Mohapatra and Shri D. Mohanty for the assistance they rendered to this court as amicus curiae in this case.