Malati Dutt vs Surendra Nath Dutt And Anr. on 22 May, 1941

    Malati Dutt vs Surendra Nath Dutt And Anr. on 22/5/1941

JUDGMENT

   B.K. Mukherjea, J.

   1. This rule is directed against an order dated 10th February 1941, passed by
the District Judge of 24-Perganas in a divorce suit which was originally started
in the Court of District Judge of Mymensingh, but was later on transferred to
the Alipur Court under an order of Sen J. in exercise of matrimonial
jurisdiction of this Court. The material facts are not in controversy and may be
shortly stated as follows : The petitioner, one Malati Sudha, was married to the
plaintiff-opposite party, Surendra Nath, on 18th January 1940, and the marriage
was solemnized under Act 3 of 1872. On 1st August 1940, the husband instituted a
divorce proceeding in the Court of the District Judge of Mymensingh and prayed
for dissolution of the marriage on the ground of alleged misconduct of the wife
with opposite party No. 2, Jyoti Prokash. The wife thereupon moved an
application to this Court in its extraordinary original civil jurisdiction under
Clause 13, Letters Patent, as well as under Section 8, Divorce Act, praying that
the divorce suit pending before the Mymensingh Court might be transferred to
this Court and tried in its ordinary original jurisdiction along with a
maintenance suit, which was filed by her against her husband in this Court, and
was still pending hearing. On this application a rule nisi was directed to be
issued by Panck-ridge J. on 14th. August 1940 and the rule was heard by Sen J.
sitting singly on 3rd September following. The learned Judge directed by an
order passed on that date that the divorce suit should be transferred from
Mymensingh to Alipur and be heard and decided by the District Judge of
24-Perganas. It was further directed that a writ of commission should issue
forthwith under the seal of this Court in its matrimonial jurisdiction to the
District Judge of Mymensingh authorizing him to examine ten witnesses named in
the writ including the opposite party himself as witnesses on his behalf. The
said commission was made returnable to the Court of the District Judge of
24-Perganas on or before 11th November 1940.

   2. In pursuance of this writ the District Judge of Mymensingh proceeded to
examine the witnesses named therein. Objections were raised by the counsel
appearing on behalf of the petitioner that the order made by this Court for
examination of the witnesses on commission was without jurisdiction as Sen J.
had no seisin of the case after he made an order of transfer. Complaint was also
made on behalf of the petitioner that the District Judge of Mymensingh did not
allow her counsel to cross-examine most of the witnesses that were examined on
behalf of the opposite party. The District Judge overruled these objections and
after the examination of the witnesses was finished the records of the divorce
suit were transmitted to the Alipur Court and the suit was registered as
original Suit No. 47 of 1940. The petitioner filed her written statement in due
course and besides answering the allegation of disloyalty brought against her by
her husband, she took the specific point that the Alipur Court had no
jurisdiction to entertain or hear the suit.

   3. On 17th January 1941 issues were framed by the District Judge of Alipur
and issue 1 which raised the question of jurisdiction was heard as a preliminary
issue by the Court on 10th February 1941. By his order passed on that date the
District Judge decided this issue in favour of the plaintiff-opposite party and
held that he had jurisdiction to try and determine the suit. It is against this
order that the present rule has been obtained. It is conceded on both sides that
apart from the order of transfer made by Sen J. the District Judge of Alipur
would have no jurisdiction to entertain the suit. Mr. Banerji who appeared in
support of this rule contended before us that the order of 9 our learned
brother, Sen J., was without jurisdiction and that a Judge sitting on the
original side of this Court was not competent to transfer a divorce suit from
one District Court to another, over neither of which he could exercise any
appellate jurisdiction. This power, it is said, could be exercised only by the
appellate Bench of this Court which is empowered to deal with civil business
arising from the particular district where the suit was pending. It is
contended, therefore, that the order of Sen J. being void for want of
jurisdiction could not confer any legal authority on the District Judge of
Alipur to hear and determine the suit.

   4. Now, the application of the petitioner upon which the order for transfer
was made by Sen J. was one under Clause 13, Letters Patent, and Section 8,
Divorce Act. It is not disputed that under Clause 13, Letters Patent, the
learned Judge could not transfer the divorce suit to the Gourt of the District
Judge of Alipur. He could only remove the suit from Mymensingh and try and
determine it himself as a Court of extraordinary original jurisdiction. The
controversy therefore narrows down to this, as to whether the order of transfer
could be made under Section 8, Divorce Act. Section 8, Divorce Act, stands as
follows:

     The High Court may, whenever it thinks fit, remove and try and determine as
a Court of original jurisdiction any suit or proceeding instituted under this
Act in the Court of any District Judge within the limits of its jurisdiction
under this Act. The High Court may also withdraw any such suit or proceeding and
transfer it for trial or disposal to the Court of any other such District Judge.

   5. It is para. 2 of this section that is relevant for our present purposes,
for it was under that paragraph that the order of transfer was made by our
learned brother. We have no hesitation in holding that the expression "High
Court" as used in this section does not mean either the original or the
appellate side of this Court. It means the High Court as one whole and the
definition is intended to do no more than to point to this Court itself as
separate and distinct from other Courts: vide the observation of Rankin C.J. in
Emperor v. Girish Chandra ; see also the case in Jnan Kumar Das v. Ram Kumar Das
.

   6. Under Section 9 of Act 24 and 25 Vict. chap. 104 all the powers are
conferred on the High Court as one body. But as it is neither convenient nor
possible that the entire Court should sit for determination of every single
matter, power was given to this Court by Section 13 of the Act to make rules
according to which jurisdiction might be conferred on one or more Judges which
they could exercise within the limits prescribed by the rules themselves.

   7. Under Section 223, Government of India Act, 1935, the provisions of
Section 108, Government of India Act, 1919, are continued in force subject to
the provisions of any order in council made under this or any other Act and to
the provisions of any Act of the appropriate Legislature enacted by virtue of
powers conferred on that Legislature by the Act. Section 108, Government of
India Act, 1919, which substantially repeats the provision of Section 13 of Act
24 and 25 Victoria Chap. 104 runs as follows:

     (1) Each High Court may, by its own rules, provide as it thinks fit for the
exercise by one or more Judges or by Division Courts constituted by two or more
Judges of the High Court of the original and appellate jurisdiction vested in
the Court.

     (2) The Chief Justice of each Court shall determine what Judge in each case
is to sit alone and what Judges of the Court whether with or without the Chief
Justice are to constitute the several Division Courts.

   8. The terms "original" and "appellate" as used here are obviously wide
enough to include all the different jurisdictions, viz., civil, criminal,
admiralty, vice-admiralty, testamentary, intestate and matrimonial jurisdictions
which are referred to in Section 9 of Act 24 and 25 Vic. Chap. 104. The Divorce
Act as such has nothing to do with the internal arrangements of this Court that
are determined by the rules; but the litigant when he wants to have an order
under Section 8 of the Act, would have to approach that particular department of
this Court which by its rules is empowered to deal with this matter. It is
necessary therefore to see what rules have been prescribed by the Court on this
point. The learned Counsel for the respondent contended before us that the
appropriate rule which regulates the procedure in the present case is Rule 44,
Chap. 85-A of the Original Side Rules. Chapter 35-A lays down the rules framed
by this Court under the Divorce Act, though undoubtedly such rules could be
framed under the general powers spoken of above. Rule 44 of this chapter
provides as follows:

     An application to the High Court to remove a suit or proceeding under
Section 8 of the Act shall be made by an ex parte application to the Judge on
the original side in open Court for a rule upon the party or parties concerned
to show cause against such removal.

   9. This rule speaks of removal of a suit or proceeding which is dealt with
under para. 1 of Section 8, Divorce Act, and does not say anything about the
transfer of such suit which is dealt with in para. 2. The question is whether an
application for transfer made under para. 2 of the said section is also covered
by this rule. We have no doubt that such was the intention of the framers of the
rule though the language is certainly not clear and, if strictly interpreted,
would exclude an application for transfer. No reason can be assigned as to why
the powers of removal which also imply interference with the proceedings before
another Court should be exercised by a Judge of the original side sitting singly
whereas the powers of transfer could be exercised only by the appellate Bench;
and if this is the procedure that is to be followed certain anomalous
consequences are likely to arise. Suppose, for example, a party to a divorce
proceeding makes an application before a Single Judge in the original side of
this Court for removal of the suit under Rule 44 of chap. 35-A of the Original
Side Rules and the Judge makes an order that the suit should be withdrawn and
heard by himself. It is quite conceivable that while the application was pending
before the Judge in the original side any other party might make an application
to a Division Bench in the appellate side for transfer of that suit to another
District Judge; and if such order is made by the Division Bench a clear conflict
of jurisdiction will arise.

   10. Unfortunately, the Appellate Side Rules also do not throw much light on
this point. There is no specific provision in the Appellate Side Rules dealing
with an application for transfer under Section 8, Divorce Act, though there are
undoubtedly some rules in relation to matters coming under Sections 9 and 17 of
the Act: vide Part 1, Chap. 2, Rule 16. Mr. Banerji argues that a Judge sitting
singly on the original side of this Court has only co-ordinate jurisdiction with
a District Judge in matters coming under the Divorce Act. He has no appellate
jurisdiction or powers of superintendence or control over the latter, and
consequently, an application should be made before the Division Bench under the
general provision contained in Part 1, chap. 3, Rule 3 of the Appellate Side
Rules. There is undoubtedly considerable force in this contention. But here
again the matter is not free from doubt.

   11. A Judge sitting singly in the original side of this Court and exercising
matrimonial jurisdiction cannot be said to have only coordinate powers with
other District Judges. Under Section 13, Divorce Act, when a petition is
dismissed by a District Court under that section, the petitioner may
nevertheless present a similar petition to the High Court. Again, under the last
paragraph of Section 17 when during the progress of a divorce suit in the Court
of a District Judge, any person suspects that any of the parties to the suit has
been acting in collusion for the purpose of obtaining a divorce he shall be at
liberty to apply to the High Court not only to remove the suit under Section 8,
but to direct the District Judge to take such steps in respect of the alleged
collusion as to be necessary to enable him to make a decree in accordance with
the justice of the case. Mr. Banerji concedes that these directions could be
given by a Judge sitting singly on the original side of this Court. These
provisions of the Divorce Act as well as the power of removal which can
undoubtedly be exercised by a Single Judge under Rule 44, Chap. 35A do indicate
that in exercise of its matrimonial jurisdiction a single Judge of this Court
has powers which are somewhat akin to those exercisable by an appellate
tribunal. On the other hand the general provision contained in Part 1, chap. 3,
Rule 3, Appellate Side Rules, which provides that a civil business arising from
the districts of each group shall be laid before the Division Court appointed by
the Chief Justice to deal with such business, is very general in its expression
and does not specifically cover a case of this description.

   12. As matters stand the position seems to us to be this : The rules of this
Court must be taken to be exhaustive and it must be presumed that the different
jurisdictions that have been delegated to one or more Judges under the rules
leave nothing which has to be dealt with by all the Judges together. In this
particular case it is doubtful whether one rule or the other covers the matter.
Mr. Sen J. obviously proceeded upon the assumption that the present case is
covered by Rule 44, chap. 35A, Original Side Rules. If this question of
jurisdiction had been expressly raised before him and the learned Judge had
decided the matter in that way the decision would undoubtedly have been
conclusive and could be set aside only by an appropriate proceeding : vide
Krishna Kishore De v. Amarnath Khettry ('20) 7 AIR 1920 Cal 131 Even though it
was not expressly decided, we think, that in these doubtful cases where the
rules themselves are ambiguous it would not be just or proper on our part to
exercise our powers of revision under Section 115, Civil P.C., and treat the
proceeding before the District Judge of Alipur as being initiated without
jurisdiction. It is not a case of a lack of inherent jurisdiction. The utmost
that can be said is that the jurisdiction was not invoked or exercised in the
right way.

   13. The decision of the Bombay High Court in Narayan Vithal v. Jankibai ('15)
2 AIR 1915 Bom 146 upon which Mr. Banerjee relies is distinguishable. It was a
case where a single Judge sitting on the original side of the Court made an
order staying the hearing of a suit pending in a Subordinate Judge's Court in
the muffasil. There was no rule empowering a single Judge to pass such orders,
and consequently the matter had to be dealt with by the appellate side under
Rule 1, of the Appellate Side Rules of that Court. Quite apart from this the
order that is sought to be revised is an interlocutory order, no final order has
yet been passed in the suit and we think that it would be open to the petitioner
to raise this question of jurisdiction if she is so advised if any decree for
dissolution of marriage is at all passed in this case and the matter comes up
for confirmation before this Court under the provisions of the Divorce Act. The
result, therefore, is that this rule is discharged. We make no order as to
costs.