Sailendra Nath Sadhu vs Netai Chand Pramanik

The Plaintiff Respondent filed a suit for declaration of his title to a certain share of the disputed property and for partition. Although the suit as framed purported to be one for partition the dispute between the parties is really a boundary dispute between them. The learned Subordinate Judge has passed a preliminary decree declaring the Plaintiff''s claim and has directed that partition be affected through a Commissioner.

The property in suit is situate within the area which was previously French Chandemagore and it will be necessary to consider whether Shri K.M. Roy who heard the matter and passed the decree as aforesaid had jurisdiction to entertain the suit or to decide the question in issue.

For a proper appreciation of the preliminary question as to jurisdiction it is necessary to refer shortly to the different stages through which the negotiations for the transference or the sovereignty of the French Chandernagore to the Indian Union had passed.

On April 18, 1950 there was an agreement between certain representatives of the French Republic and those of the Indian Union agreeing to the transfer of Chandemagore to the Indian Union. This agreement was ratified by the Governments of India and France on April 28, 1950. This was immediately followed by the promulgation on May 1, 1950 of the Chandemagore (Application of Laws) Order, 1950, u/s 4 of the Foreign Transfer Act (XLVII of 1947). Under this Order, administration in Chandemagore was placed under the charge of officers appointed by the Government of India and a number of enactments including the CPC and the Bengal, Agra and Assam Civil Courts Act, 1887 (subject to a modification in Section 4 thereof), were extended to Chandernagore though the sovereign authority was still in the French Republic. It was directed that the substantive law as under the French regime would continue to be applicable except where the enactments referred to in the Schedule and extended to Chandernagore, introduced a different procedural or substantive law.

A Treaty between the French Republic and the Indian Union is stated to have been signed at Paris on June 9, 1952 vesting the de jure administration together with the sovereign power in the Indian Union.

Under Article 243(2) of the Indian Constitution the President of the Indian Union may in respect of territories not specified in Part D of the First Schedule to the Constitution "make "regulations for the peace and good Government of any such "territory and any Regulations so made may repeal or amend "any law made by Parliament or any existing law which is for "the time being applicable to such territory and when promul-"gated by the President, shall have the same force and effect "as an Act of Parliament which applies to such territory".

On June 30, 1952 the Chandernagore (Administration) Regulation I of 1952 to make provision for the administration of Chandernagore and for matters connected therewith was promulgamated by the President.

Various provisions for the change over as they became necessary under the Treaty referred to above were made therein. One of the provisions contained in Section 10 of this Regulation was to the effect that all proceedings which were pending immediately before the second of May 1950 in any court in Chandernagore shall.

stand transferred or be deemed to have been transferred to "the corresponding- court constituted under the Bengal, "Agra and Assam Civil Courts Act, 1887, or the Code "of Criminal Procedure, 1898, as the case may be.

The suit out of which the present appeal arises was filed on February 19, 1951, i.e., after the transference of de facto administration to the Indian Union but before the de jure transfer had taken place. The suit was filed in the court of the Subordinate Judge at Chandernagore who had been appointed under the Chandernagore Application of Laws Order, 1950. The hearing commenced before Shri K.M. Roy who had been appointed u/s 4 of the Bengal, Agra and Assam Civil Courts Act as amended by and enforced in Chandernagore under the Chandernagore Application of Laws Order. 1950.

It further appears that the suit was taken up for hearing on March 19, 1952 and was heard on different dates up to May 28, 1952 before the Treaty had been signed between India and France on June 9, 1952. There was a further hearing on June 11, after the signing of the Treaty. The judgment was delivered on June 16, 1952.

The Chandemagore Administration Regulation I of 1952 was promulgamated as already noticed with effect from June 30, 1952, directing all cases pending on May 2, 1950 had stood transferred or be deemed to have been transferred to courts under the Indian Union. This Regulation was promulgamated two weeks after the judgment in the present case had been delivered by the learned Subordinate Judge.

It is contended on behalf of the Appellant that the learned Subordinate Judge had not on the day he delivered the judgment any jurisdiction to administer any law except those which were in force in the French Courts before the de facto administration had been taken over by the Indian Union. Further the court of the Subordinate Judge was not a court on that day subordinate to the High Court at Calcutta.

Section 10 of the Chandemagore Administration Regulation I of 1952 provided inter alia-

Notwithstanding anything contained in this Regulation or "in any law in force in the free town of Chandemagore "on the 2nd day of May, 1950-

(a) all proceedings, civil or criminal, which immediately before the aforesaid date were pending in any court in Chandemagore shall, by virtue of this Regulation, stand transferred or be deemed to have been transferred to the corresponding court constituted under the Bengal, Agra and Assam Civil Courts Act, 1887 (XII of 1887), or Code of Criminal Procedure, 1898 (Act v. of 1898), as the case may be;

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(c) "the provisions of the Code of Civil Procedure, 1908 (Act v. of 1908), of the Code of Criminal Procedure, 1898, as the case may be, shall apply to all proceedings instituted after the 2nd day of May, 1950, and so far as may be, to all cases pending in any civil or criminal courts on the aforesaid date.

If the suit in the present case had been pending in the court of the Subordinate Judge on June 30, 1952 and had not been disposed of on June 16, 1952 there might have been some scope for argument that the provisions contained in Section 10 of the Chandernagore Administration Regulation of 1952 had retrospective effect and the proceedings stood transferred to a court properly constituted by the Indian Union. It is not necessary for us to consider whether retrospective effect stated to be given u/s 10 aforesaid with effect from the 2nd of May, 1950, i.e., a date anterior to the signing of the Treaty and the de jure transfer was ultra vires the Constitution or not. This section is not attracted as the suit had been disposed of before this Regulation was promulgamated on June 30, 1952.

The next question which arises for our consideration is as to what was the law which was in force on June 16, 1952. Our attention has been drawn only to the provisions contained in the Chandernagore Application of Laws Order, 1950. That order was issued u/s 4 of the Foreign Jurisdiction Act, 1947. This Act provides that if the Central Government acquires jurisdiction in relation to areas outside India whether by Treaty, Agreement, grant, usage, sufferance and other lawful means, the provisions of this Act would be attracted.

That the Central Government had by lawful means been exercising jurisdiction over Chandernagore is beyond dispute. It is open to the Central Government to make such orders by notification in the official Gazette as may seem expedient for the effective exercise of any foreign jurisdiction of the Central Government. The said Government may determine in such an order the law and procedure to be observed whether by applying with or without modification all or any of the provisions of any enactment in force in any state or otherwise. It is also competent to determine the persons who are to exercise jurisdiction and the courts and Judges, etc., by whom such jurisdiction is to be exercised.

Under Clause 7 of the Chandernagore Application of Laws Order, 1950 -

unless otherwise especially provided in the Schedule to order all laws in force in Chandernagore immediately before the commencement of this Order which correspond to the enactments specified in the Schedule shall cease to have effect, save as respect of things done or omitted to be done before the commencement of this order.

The different enactment referred to in the Schedule which may have reference or applicability to the suit now before us were-

(1) The Bengal Agra and Assam Civil Courts Act, 1887, with the amendment substituting Section 4 of that Act in the following manner:

The State Government may appoint a District Judge, a Subordinate Judge and a Munsiff having jurisdiction over the free town of Chandemagore.

(2) The Indian Evidence Act, 1872, the Indian Oaths Act, 1873, the General Clauses Act, 1897, the Code of Civil Procedure, 1908.

Subject to the rules or procedure and the law as contained in the above enactments all other substantive laws and procedure which were retained for the court at Chandemagore were those which had been in force before the relevant date.

We must therefore hold that Mr. K.M. Roy who had been appointed under the powers and authority given under the provisions contained in the Order had jurisdiction to entertain the suit and to hear the same.

A question however arises whether the law as applied by him was the law which was in force in Chandemagore subject to the modification aforesaid.

Both parties pray that they may be heard on this point. The prayer is allowed. This will be set down for hearing after the Long Vacation as prayed for.

The 22nd December 1955

We have heard the learned Advocates further on the question as to whether the decision as made by the learned Subordinate Judge is in conformity with the law in force in Chandemagore in terms of the order passed by us on the 8th September, 1955.

We have already held that the Indian Evidence Act was applicable. One of the principal documents in this case is exhibit 2 of which a copy is exhibit 2(1). Exhibit 2 is a certified copy of a plan forming part of a decree in Title Suit No. 90 of 1895. That certified copy was given to an engineer who has examined witness No. 1 for the Plaintiff. He made a copy of exhibit 2. He did not himself take any measurements on the spot. Section 83 of the Indian Evidence Act requires that a map which is made for the purpose of any cause must be proved to be accurate. The original of exhibit 2 was a map drawn by commissioner Rajendra Lal Sadhu appointed in Suit No. 90 of 1895. The engineer did not verify the correctness of that plan. Exhibit 2(1), therefore, is the copy of a plan which is not proved to be accurate. The particulars of the items claimed by the Plaintiff in the plan can be identified principally with reference to the members which are given to the rooms in exhibit 2 and copied in exhibit 2(1). If exhibits 2 and 2(1) be held to be inadmissible, as u/s 83 of the Evidence Act they must be so held, it becomes difficult, if not impossible, for the Plaintiff to prove the particular items which are being claimed.

We can quite appreciate the difficulties under which the parties were when the trial was going on in the court below, particularly the law which was applicable and to what extent was not definitely appreciated by all the parties. We would, therefore, give the parties another opportunity to prove exhibit 2 according to law. There are other documents which had not been so carefully marked keeping in view the provisions of the Indian Evidence Act. It will be desirable to give the parties an opportunity to prove such other documents which might be found to have been wrongly admitted in evidence. The decision of the learned Subordinate Judge, therefore, cannot stand as the sheet anchor thereof is not now available for reference at "this stage. The judgment and decree passed by the learned Subordinate Judge are set aside and the case is remitted to that Court for rehearing according to law. The parties will be allowed further opportunity to prove exhibits 2 and 2(1) and such other document as might be found to be admissible in evidence. Other materials already on the record will be available to the court below for the final decision.

Our attention has been drawn to the objection which had been raised to the adequacy of the amount of Court-fees paid on the memorandum of appeal. The stamp reporter submitted his report on November 27, 1954. We heard the learned Advocates on this matter also. There are no specific provisions in the French Law as was in force at the relevant time regulating the amount of Court-fees payable on the memorandum of appeal to be filed in the High Court. An appeal which lay to the High Court at that time under the special provisions could be filed on payment of fees prescribed under Article 1, Schedule I of the Court-fees Act. The suit is not merely a suit for partition, but questions of title had been raised. Calculating the ad valorem Court-fees, the total amount payable was assessed by the Stamp Reporter to be Rs. 1,132-8as. out of which Rs. 213 having already been paid, Rs. 919-8 as. is required to be paid by the Appellant. Mr. Mukherjee appearing on behalf of the Appellant gave an undertaking on November 24, 1954, that additional Court-fees would be paid as might be directed. "We accordingly direct that deficit court-fees as reported by the Stamp Reporter be paid by the Appellant by January 31, 1956, and if this is not so done necessary steps for the realization thereof will be taken according to law.

As regards the costs of this hearing, we direct that the Appellant will be entitled to realise the amount of Court-fees paid and payable on the memorandum of appeal in this Court from the Plaintiff Respondent. The rest of the costs are to be borne by the respective parties in this Court.

The future costs will be in the discretion of the Court below.