Kamla Yadav vs Sushma devi and others

Hari Nath Tilhari, J.—This is a revision under Section 115 of the Code of Civil Procedure rejecting an application under Order 6 rule 17 CPC for the amendment of the Claim Petition i. e. Claim Petition No. 181 of 1990 pending before the Motor Accident Claims Tribunal (Sri N.J. Khan, XIV Addl. District Judge) Lucknow. A preliminary objection has been taken as to the maintainability of the Civil Revision under Section 115 of the Code by the learned Counsel for the defendantoppositeparties, Shri Surya Kant.

It has been contended that the Motor Accidents Claims Tribunal is not a court subordinate to the High Court for the purposes of Section 115 of the Code of Civil Procedure, so revision application u/s. 115 of the Code of Civil Procedure is not maintainable.

The learned Counsel for the oppositeparties elaborating his arguments submitted that what is a Court subordinate to High Court for the purposes of Section 115 as well as for the purposes of the Code of Civil Procedure has well been denned by sections of the Code of Civil Procedure. He under a reference to Section 3 of the Code of Civil Proce�dure and submitted that District Court is subordinate to High Court and every Civil Court of a grade inferior to that of District Court including the Court of small Causes is a Court subordinate to the High Court and to the District Court. The learned Counsel submitted that in view of this section it is only a Civil Court i. e. District Court or a Civil Court of inferior grade that of a District Court is to be taken to be a court subordinate to High Court for the purposes of revision under Section 115 before the High Court i. e. when the High Court is called upon to exercise its jurisdiction under Section 115 of the Code of Ctvil Procedure, while with reference to the case under Section 115 when District Court is called upon to exercise its jurisdiction under Section 115 every Civil Court of a grade inferior to that District Court is subordinate to it.

Learned Counsel further submitted that Tribunal is not a Civil Court, subordinate to either the High Court or District Court. Learned Counsel further made a reference to the provisions of Section 110C of the Motor Vehicles Act and invited my attention to subSection 2 thereof and had laid great emphaiss on subSection 2 which provides that the Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for other purposes as may be prescribed; and the Clams Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974),

Referring to this provisions Sri Surya Kant, learned Counsel for the oppositeparties contended that had the legislature conceived or inten�ded that Tribunal is, by itself, to be taken on its own status to be a Court of Civil jurisdiction there would have been no need of providing a deeming clause. He submitted that the function of deeming clause to be that in effect, that something is deemed to be some different than what it is not in its actuality A thing under deeming clause is deemed for certain purpose to be something which it is not either in fact or in law. That in the view of State of things he contended that the operation of deeming clause under Section 110C(2) Motor Vehicles Act by itself being limited for all the purposes relating to Section 195 and Chapter XXVI of the Code of Criminal Procedure, the Tribunal is not to be deemed to be a Civil Court i. e. it is deemed to be the Civil Court only for the limited purposes referred to in that provisions of Motor Vehicles Act i.e. the spirit of the provisions of Section 110C(2) of the Motor Vehicles Act.

Learned Counsel further submitted that in this view of the matter, the District Judge when acting as the Motor Accident Claims Tribunal did not perform his function as the Civil Court but as a Tribunal under the law and in its spirit irrespective of the fact that there is special pro�vision that provides for an appeal from the award of the Tribunal to this Court.

Shri Surya Kant submitted that simply because there is a provision for appeal to the High Court from an award of the Tribunal that will not make the Tribunal a Civil Court for the purposes of Section 115 or a Court of Civil jurisdiction subordinate to High Court. He submitted that hierarchy of Courts subordinate have been defined and created by the Bengal, Agra and Assam Civil Courts Act and, therefore, he submitted that when the Tribunal is not a Court subordinate within the meaning of section 115 of the Code of Civil Procedure read with sections thereof, the present revision under section 115 is not maintainable.

In reply to these arguments of learned Counsel for the respondent raising preliminary objections, Shri S. K. Bhartharia, learned Counsel for the revisionistapplicant submitted that District Judge is a District Judge i. Ci Civil Court aud revision lies to this Court and he in particular placed reliarce on the decision of a Division Bench of this Court in the case of Afsari Begum v. Oriental Fire & General Assu�rance Company Ltd. and others, reported in (1979 ALJ 1168) in which, the Division Bench appears to have taken the view that Claims Tribunal under Motor Vehicles Act is a Civil Court amenable to revisional jurisdiction of High Court beacause it was not disputed or challenged to be a Court subordinate to High Court and appeal from award of Tribunal did lie to this Court. In this case, the Division Bench has overruled the single Judge decision of this Court of Satish Chandra v. State of Uttar Pradesh (1971 ACJ 180). It may be mentioned here that in course of his preli�minary objection, learned Counsel for the oppositeparties, namely, Sri Surya Kant made a reference to a single Judge decision of this Court in the case of Sardar Singh v. U P. State Road Transport Corporation and Another, reported in (1991(2) ACC page 628). In this decision, Hon''ble Mr. Justice B. L. Yadav has been pleased to take a view vide para 4 as under :

"Rule 21 of the rule made in this behalf does not provide for pro�vision of Order XXVI to be applicable. No doubt, Tribunal is not Civil Court rather it is a person designate it may have certain powers of the Civil Courts for the purposes of taking evidence on oath etc. but "that by itself would not constitute it to be a Civil Court".

In the case of Satish Chandra v. State U. P. (1971 ACJ 180), it has also held that the Claims Tribunal was not a Court subordinate to High Court.

A perusal of the judgment in the case of Sardar Singh (Supra) 1991 (2) ACC page 628 does not reveal that the attention of the learned Single Judge was invited to the decision of the Division Bench of this Court in the case of Afsari Begum on the the point in issue. Though it also appears from the judgment in Afsari Begum''s case that the attention of the Hon''ble Judges constituting the Division Bench was not invitvd to this provision of Section 3 of the Code of Civil Procedure which defines and explains the expression Court subordinate to High Court and District Court'''' for the purposes of the Code of Civil Procedure including Section 115 CPC as well. It also appears that the attention of the Division Bench in Afsari Begum''s case i. e. 1979 ALJ 118 was not invited to Section 110C(,2)of Motor Vehicles Act. Provisions of Section 2 which has been relied by the learned Counsel for the oppositeparties, namely, Sri Surya Kant in support of his contention.

In view of the above circumstances, without expressing any view on the merits or demerits of the contention at this stage 1 think it would be just and proper that the following points be framed for consideration by a Larger Bench of three Judges and a reference be made to the Hon''ble Chief Justice to constitute a Full Bench consisting of three Judges to re�consider the matter and points referred hereinafter and to remove the conflict and to lay down the law authoritatively.

The questions requiring consideration by Full Bench and referred to are as under :

Whether Claims Tribunal constituted under the Motor Vehicles Act is a subordinate Civil Court within the meaning of Section 115 of the Code of Civil Procedure ?

Whether in view of the provision of Section 3 of the Code of Civil Procedure for the purposes of the Civil Procedure Code only the Courts referred to in Section 3 are Civil Courts subordinate to the High Court and the District Court as the case may be and no other i e the authorities and that Tribunals of such as one constituted under Motor Vehicle Act do not come within the frame work of expression "Court subordinate to High Court" for the purpose of Section 115 of the Code ?

Whether the view expressed by the Division Bench in Musammat Afsari Begum v. Oriental Fire & General Assurance Company, reported in (1979 ALJ page 1169) to the effect that Claims Tribunal constituted under Motor Vehicles Act is a Court subordinate to High Court and its order are amenable to revisional jurisdiction of the High Court under Section 115 of the Code is in consonance with the letters and spirit of provisions of Section 115 read with Section 3 of the Code of Civil Procedure as well as provisions of Motor Vehicles Act and in particular Section 110C (2) Motor Vehicles Act, if not, is the present revision maintainable in this Court ? If not is it open to this Court to entertain, hear and dispose off the same under Article 227 of the Constitution ?

Let the papers of this case be placed before the Hon''ble Chief Justice/Acting Chief Justice for constituting a Full Bench of three Judges for the purposes of answering the above questions.

I may mention that notice of this revision on behalf of oppositeparties 1 to 4 has been accepted by Sri Surya Kant, who has filed power in this case and who has, as mentioned above, put in appcarence in this Court, argued the matter on preliminary point, so there is no need to issue a notice to oppositepary No. 1 to 4. The notice may be issued to opposite party No. 5 i.e. State of Uttar Pradesh as described in the revision petition. The interim order passed earlier shall continue.