K.N. Sanyal vs S.M. Ghosh

Lahiri, J.

In No. 2291 of 1956

In this Rule, we are invited by the Plaintiff to set aside an order of the District Judge of Andaman and Nicobar Islands by which he has dismissed the Plaintiff''s suit on the ground that the facts alleged in the plaint constitute a criminal offence and as such the civil court has no jurisdiction to proceed with the trial of the suit. The Plaintiff Petitioner filed a suit for the recovery of 61 Mauds 75 pounds of SNA-shells lying in the custody of the Superintendent of Police, Port Blair, and the value of those goods was stated to be Rs. 4,204. The facts alleged by the Plaintiff in his plaint are these:

That on August 18, 1954, the Plaintiff sent a consignment of 61 Mauds 75 pounds of sea-shells from Mayabandar Port in North Andamans to Port Blair in South Andamans by M.V. Mahavir, the freight to be paid either at the time of loading or at destination. M. V. Mahavir arrived at Port Blair on August 19, 1954 and the Plaintiff sent his agent, Krishna Swami, to the Marine Jetty to get delivery of the shells on payment of freight but he found that the shells were covered by a ticket in the name of the Defendant No. 1, S. K. Ghose. The Plaintiff alleged that the ticket in the name of S. K. Ghose was fraudulently obtained in collusion with the Serang of the boat and with the help of opposite party No. 2, Tha Sang, who purported to be the consignor and who had been in the employment of the Plaintiff till July 1954, when he was dismissed. When the Plaintiff discovered the fraud, he reported it to the Engineer and Harbour Master of Port Blair and at the instance of the Harbour Master, the Superintendent of Police, Port Blair, took the consignment of sea-shells in his custody. Upon these allegations, the Plaintiff made a prayer for a declaration that he had title to the sea-shells which were lying in the custody of the police. The Plaintiff also made a further prayer for restraining the Defendants from taking delivery of the sea-shells from police custody. The Defendants filed a written statement contesting the claim of the Plaintiff on the merits.

At the trial, the learned District Judge of Andaman and Nicobar Islands, without trying the suit on merits, came to the following finding:

The facts of the case disclose offences of a criminal nature ; perhaps of theft against Defendant No. 2, receiving stolen property against Defendant No. 1 and Criminal breach of trust against the Sarang of the ship. The case does not contain any element of a civil nature.

On this finding, the learned District Judge dismissed the suit on the ground that he had no jurisdiction to proceed with the trial. Against this order, the Plaintiff has obtained this Rule under Article 227 of the Constitution of India.

On going through the allegations made by the Plaintiff in the plaint, it is quite clear to us that the plaint discloses a claim of a civil nature. According to the Plaintiff, the goods belonged to him and they were wrongfully converted through the wrongful act of Defendant No. 2 and the Serang of the ship. The learned District Judge, therefore, was not right in holding that the case does, not contain any element of a civil nature. The learned District Judge seems to take the view that if the facts alleged in plaint disclose a criminal offence, the civil court loses jurisdiction to try the suit. I have no doubt that this view is not correct. u/s 9 of Code of Civil Procedure, a civil court has jurisdiction to try all suits of a civil nature except those of which cognisance is either expressly or impliedly barred. It is settled law that exclusion of the jurisdiction of the civil court must either be explicitly expressed or clearly implied and is not to be readily inferred. (See the observations of the Judicial Committee in the case of Secretary of State v. Mask and Company (1940) 44 C.W.N. 709 ) Existence of a criminal liability does not bar the jurisdiction conferred by Section 9. The facts alleged in a plaint may constitute a civil as well as a criminal liability and in such a case the aggrieved individual has the right to start simultaneous proceedings in the civil as well as the criminal court. For example, if you steal my watch. I may prosecute you u/s 379 of the Indian Penal Code in the criminal court and at the same time sue you for the recovery of its price. If you take my money by extortion I may prosecute you u/s 383 of the Indian Penal Code and at the same time, sue you for the recovery of the money. If you take my money by robbery, I have similarly both the remedies open to me. Article 35 of the second schedule of the Provincial Small Causes Courts Act contain a list of various kinds of suits for compensation for wrongful acts which also constitute criminal offences and excludes those suits from the jurisdiction of the Small Causes Courts and makes them triable by courts in the exercise of their ordinary jurisdiction. For these reasons, I hold that the jurisdiction of the civil court is not ousted merely because the facts alleged in the plaint constitute an offence under the criminal law. The existence of a bona fide claim of civil right may, in certain cases, exclude the jurisdiction of the criminal court to proceed with the trial but the converse of that proposition is not true. For these reasons, the order made by the learned District Judge on November 16, 1954 cannot be upheld.

On behalf of the opposite party, it has been contended that the order passed by the learned District Judge is an order rejecting the plaint and consequently it is appealable as it comes within the definition of a decree as given in Section 2 of the Code of Civil Procedure, and, therefore, we cannot interfere with this order in exercise of our re-visional jurisdiction. I cannot, however, accept this argument for two reasons. In the first place, the order passed by the District Judge does not purport to be an order rejecting the plaint under Order VII, Rule 11 of the Code of Civil Procedure. The final order made by the learned District Judge runs as follows: "The "suit is dismissed as not maintainable". In the second place, the District Judge dismisses the suit not on the ground that the plaint discloses no cause of action but on the ground that the facts alleged in the plaint oust the jurisdiction of the civil court. Such an order cannot be said to be an order rejecting the plaint. The Petitioner would have a right of appeal against the decree if a decree had been drawn up in this case but what is extremely strange is that although the Plaintiff filed an application before the District Judge for drawing up a decree, the learned District Judge by an order, dated August 31, 1955, rejected that application on the ground that as the suit was not maintainable and as no adjudication had been made on the rights claimed or defence set up, no decree was required to be prepared. The result has been that the Petitioner has been precluded from challenging the legality of the order passed by the District Judge on November 16, 1954 by appealing against the decree. We are of the opinion that the only remedy open to the Petitioner in a case like this is to file an application in revision u/s 115 of the Code of Civil Procedure. The Petitioner has, however, invoked the jurisdiction of this Court under Article 227 of the Constitution. That Article can be called in aid only in those cases where there is no other remedy open to the Petitioner. In the present case, however, we think that the remedy of the Petitioner is u/s 115 of the CPC because the District Judge has failed to exercise a jurisdiction vested in him by law. I would, accordingly, make this Rule absolute and set aside the order of the District Judge, dated November 16, 1954, and send back the case to him for trial on the merits. The Petitioner, however, has paid court fee upon the application treating it as one under Article 227 of the Constitution. If the application is to be treated as one u/s 115 of the Code of Civil Procedure, the Petitioner will have to pay additional court fee to the extent of Rs. 18 for the two rules, namely, Civil Revision Cases Nos. 3698 of 1955 and 2291 of 1956. We are told that this additional court fee of Rs. 18 has been put in to-day. The same may be accepted.

As the Defendants did not take the plea of want of jurisdiction of the civil court before the District Judge and as the Defendant also did not oppose the Plaintiff''s prayer for drawing up of the decree, we think we should not be justified in making the Defendants liable for the cost of this Rule. We accordingly make no order for costs in this Rule.

In No. 3698 of 1955.

In this Rule, the Plaintiff challenges the order of the learned District Judge, dated August 31, 1955, by which he has refused to draw up a decree. We have already said in our judgment in the other Rule, namely Civil Revision Case No. 2291 of 1956, that it was the imperative duty of the District Judge to draw up a decree whatever might be the ground upon which the suit was dismissed. The learned District Judge seems to think that if he dismisses a suit on the preliminary ground of want of jurisdiction, he is not required to draw up a decree. It is needless to say that there is no warrant for this view in the CPC Code. Every suit instituted in a civil court must terminate in a decree. Since, however, we have set aside the order of the District Judge, dated November 16, 1954, it is not necessary for us to set aside the order passed by him on August 31, 1955 because he will have to try the entire suit on the merits and no question arises as to the drawing up of the decree. There will be no order as to costs in this Rule.

Gtjha, J.

I agree.