Shri Ashok Kumar Jain And 3 Others vs Shri Gaurav Jain And Another
2017 Latest Caselaw 7450 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 30.08.2017
 
Delivered on 30.11.2017
 
Case :- MATTERS UNDER ARTICLE 227 No. - 3277 of 2017
 
Petitioner :- Shri Ashok Kumar Jain And 3 Others
 
Respondent :- Shri Gaurav Jain And Another
 
Counsel for Petitioner :- Sudeep Harkauli
 
Counsel for Respondent :- Archana Singh
 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Sri Sudeep Harkauli, learned counsel for the petitioners and Ms. Archana Singh, learned counsel appearing on behalf of the respondents.

The dispute being raised in the present petition is with regard to the jurisdiction of the Court of Additional District and Sessions Judge/Fast Track Court no.1, Agra in proceeding with Misc. Case No.860 of 2016 (Gaurav Jain Vs. Ashok Kumar & others) filed by the respondents on 17.08.2016 seeking leave of the Court to institute a suit under Section 92 of the Code of Civil Procedure. The main prayer in the present petition is to quash the proceeding of the aforesaid Misc. case and to remand the matter to the Court of the District Judge, Agra. Second prayer is to set aside the order dated 22.12.2016 passed by the District Judge, Agra transferring Misc. Case to the Court of Additional District Judge/Fast Track Court no.1, Agra.

The petitioners herein had filed an objection on 14.02.2017 to the application seeking leave of the Court namely Misc. Case no.860 of 2016. It is contended that the Additional District Judge/Fast Track Court No.1 Agra has no jurisdiction to grant leave and decide the Misc. case no.860 of 2016 for grant leave to institute the suit under section 92 of the Code of Civil Procedure. The District Judge, Agra had, therefore, erred in transferring the said case for disposal before the Additional District Judge/Fast Track Court, Court No.1 Agra.

With reference to the language of Section 92 of the Code of Civil Procedure for filing of the suit in relation to the public trust of a charitable or religious nature, it is contended that such a suit can be instituted only after having obtained "the leave of the Court" in the "Principal Civil Court of Original Jurisdiction" or in any other Court empowered in that behalf by the State Government within the local limits of its jurisdiction. It is further contended by the learned counsel for the petitioner that the "Principal Court of Civil Jurisdiction" would mean only "the District Judge" and the Additional District Judge, Court no.1, cannot be included within the meaning of the Principal Court of Civil jurisdiction. The leave as such, cannot be granted by the Additional District Judge, Court no.1, Agra for the purpose of institution of suit under section 92 of the Code in relation to a public charitable or religious trust. He vehemently submits that the literal rule of construction is to be applied for the purpose of interpretation to be given to the words "having obtained the leave of the Court" and "the Principal Civil Court of Original Jurisdiction". No Court other than that of the "District Judge" can be said to be the "Principal Court of Civil Jurisdiction".

It is further contended that no notification whatsoever has been issued by the State Government to empower any other Court in the local limits of jurisdiction of the District Judge, Agra for discharging the functions under Section 92 of the Code. The word "Principal" is singular in nature and would only mean one singular highest Court. The District Judge being the highest Court amongst all the judges of the Civil court in the hierarchy of Courts would not include all other Additional District Judges, in a district.

Reference has been made to Section 3 of Bengal, Agra and Assam Civil Courts Act' 1887 to submit that amongst the Classes of Courts, the Court of "Additional District Judge" is mentioned at serial no.2 whereas the Court of the "District Judge" is at serial no.1 the highest amongst all other judges of the Civil Court.

Reliance is placed upon the judgement of this Court in M/s I.T.I. Ltd. Allahabad Vs. District Judge, Allahabad reported in AIR 1998 ALLD 313, to submit that with reference to the words used in Section 2(e) and Section 42 of the Arbitration and Conciliation Act' 1996 it had been held that the Court mentioned therein would mean the "Principal Civil Court of Original Jurisdiction" which would invariably mean "the District Judge only" and would not include the Additional District Judge (s). Resultantly, the Additional District Judge was devoid of jurisdiction to entertain an application under Section 34 of the Arbitration and Conciliation Act' 1996 and the District Judge could not have transferred the said application for its disposal to the Court of Additional District Judge, by invoking the provisions under Section 8(2) of The Bengal, Agra and Assam Civil Courts Act, 1887 ( in short Civil Courts Act' 1887). It is vehemently submitted that the same connotation is to be given to the words "Principal Civil Court of Original Jurisdiction" as contained in Section 92 of the Code of Civil Procedure.

Ms. Archana learned counsel for the respondents did not make any submission on the question of jurisdiction and left it for decision of this Court.

It is noteworthy that by order dated 13.07.2017, this Court had invited the comments of the District Judge, Agra. The report submitted by the District Judge, Agra dated 17.07.2017 has been perused.

At the very outset, it is reported by the District Judge, Agra that the objections taken by the petitioner separately in application 39-Ga regarding maintainability of Misc. case 860 of 2016 challenging the order of transfer of the District Judge dated 22.12.2016 has been rejected vide order dated 11.04.2017 and the matter has been fixed for disposal of application 4-Ga leaving it open for the petitioner/contesting opposite party to take such objection in misc. case, itself. The petitioner has not challenged the said order in the present petition.

This apart, the District Judge, Agra in the said report, has further submitted that the Court of Additional District Judge is in no way is inferior to the Court of District Judge. A reference has been made to the judgement of Full Bench of the High Court of Calcutta in West Bengal Housing Infrastructure Development Corporation Vs. M/s Impression, AIR 2016 Calcutta 236 to support the order of transfer passed by it. The observations made in paragraph 16, 17, 45, 46 & 47 as quoted in the report of the District Judge, Agra are as under:-

"16. The history of the evolution of the Civil Courts shows that District Judge is the highest and superior-most in a District with wide variety of powers. The various legislations both prior and subsequent to the 1887 Act recognize existence of District Judge and Additional Judges.

17. After Independence and framing of the Constitution the District Judge is appointed under Article 233 of the Constitution. In Article 236 of the Constitution, the expression 'District Judge' has been defined to include amongst others, the Additional District Judge. Article 233 read with Article 236 of the Constitution makes it clear that the Court of the Additional District Judge is not inferior to the Court of the District Judge in any manner.

45. The dictionary meaning of inferior is "lower in any respect, subordinate, a person who is lower in rank or station". According to Black's Law Dictionary, inferior means "One who, in relation to another, has less power and is below him; one who is bound to obey another. The term may denote any Court subordinate to the chief appellate Tribunal in the particular judicial system (e.g. Trial Court); but it is also commonly used as the designation of a Court of special, limited, or statutory jurisdiction".

46. An 'inferior' would mean less in power or authority; subordinate.

47. An "inferior" is one who in relation to another has less power and is below him; one who is bound to obey another. He who makes the law is the superior; he who is bound to obey it the inferior. It means it was inferior that is a Court over which the Court has appellate jurisdiction."

With reference to the said pronouncement of the High Court of Calcutta, the District Judge, Agra has defended the transfer order and submitted that the Principal Civil Court of Original Jurisdiction i.e. the District Judge can distribute and allot cases filed before him/her to the Additional District Judge in the Districts which is purely an administrative exercise of power but that would not mean that the Additional District Judge would be the Court of a grade inferior to that of the Principal Court of Original Jurisdiction and cannot decide the application seeking leave to file suit under section 92 of the Code of Civil Procedure.

Having heard learned counsel for the petitioners at length and perused the report of the District Judge, Agra carefully, as far as the question of the power of the District Judge to transfer the suit filed under section 92 of the Code of Civil Procedure to the Court of Additional District Judge in the local limits of jurisdiction of the district, the said issue had been adjudicated by the Division bench of this Court in the reported case of Ram Kishore Sharma and other Vs. Gopi Nath & others as early as on 21.03.1979 (reference AIR 1979 ALL 281). It had been held therein that under section 24(1(a) of the Code of Civil Procedure, the District Judge has been empowered to transfer any suit, appeal or civil proceeding including the suit under section 92 of the Code of Civil Procedure. The relevant observations in paragraphs No.5 and 14 of the said judgement are being quoted as under:-

"5. According to section 4(12) of the general clauses act, "district judge" is "the judge of the principal civil court of original jurisdiction." section 8 of the bengal, agra and assam civil courts act, 1887 (act xii of 1887) provides:--

Additional Judges -- (1) When the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the State Government may, having consulted the High Court appoint such Additional Judges as may be requisite, (2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to then, and in the discharge of those functions they shall exercise the same powers as the District Judge.

Under section 24(1)(a) of the code, the District Court is empowered at any stage to "transfer any suit, appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it and competent to try and dispose of the same." For the purposes of section 24 by virtue of sub-section (3) thereof, Courts of Additional District Judges are subordinate to the District Court. section 92 of the code merely requires the institution of a suit under that provision either before the District Judge or before any other Court empowered by the State Government to entertain such a suit. It does not concern itself with the further trial or disposal of the suit once it has been instituted before a proper Court. If the District Judge assigns under section 8(2) of the bengal, agra and assam civil courts act to an Additional District Judge appointed under section 8(1) of that act the work of trying cases under section 92 of the code, such Additional District Judge acquires competence to try and dispose of the same within the meaning of section 24(1)(a) of the code and in exercise of powers under that section the District Judge can validly [transfer such a suit for trial and disposal to him. The words "any suit, appeal or other proceeding" used in Section 24 are words of amplitude and have no limitations (3ee P.C. Gupta v. State, 1974 All LJ 418 : (1974 Cri LJ 945) (FB)). "The word any is a word which excludes limitation or qualification. It connotes wide generality. Its use points to distributive construction," (Vide Stroud's Judicial Dictionary). A Division Bench of the Patna High Court in Chandi Prasad v. Rameshwar Prasad Agarwal, (AIR 1967 Pat 41) observed that "it is no doubt true that the word 'any' may, in certain context, imply 'all'. The mere fact that section 92 of the code authorises the State Government to invest Courts other than the District Courts with power to entertain suits under that section does not, in our judgment, warrant the conclusion that there is an implied curtailment of the power of the District Court to transfer such suits instituted before it to Additional District Judges in exercise of powers under Section 24."

14. We consequently hold that the learned District Judge, Bareilly, was competent to transfer the suit instituted before him and giving rise to these appeals for decision to the Third Additional District Judge. Bareilly, who as a result of the transfer acquired jurisdiction to try and dispose of the same."

Learned counsel for the petitioner, however, tries to distinguish the aforesaid pronouncement of the Division Bench of this court with the assertions that the observations made by the Division Bench in paragraph no.5 would necessary mean that the District Judge could transfer the suit only after proper institution of the same before it, for the purpose of trial and disposal thereof. And at the stage of institution of the suit i.e. before grant of leave, as required under Section 92 of the Code of Civil Procedure, the District Judge, Agra was not empowered to transfer the application seeking leave to institute the suit.

The contention is that there is a remarkable difference between the words "institution" and "trial or disposal". Both the words cannot be given the same meaning as "institution of a suit" and "trial of the suit" refers to completely two different stages. The institution of the suit under Section 92 of the Act would necessarily require the leave of the Court and there is no institution much less proper institution of the suit without the leave of the Court and hence there is no question of trial or disposal thereof by the Additional District Judge.

Before dealing with the said submissions, it would be apt to go through the relevant provisions which would have a bearing on the controversy involved in the present matter. Section 92 of the Code of Civil Procedure reads as under:-

92. Public charities.- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the leave of the court, may institute a suit, whether contentious or not, in the principal civil court of original jurisdiction or in any other court empowered in that behalf by the State Government within the local limits of whose jurisdiction whole or any part of the subject matter of the trust is situate to obtain a decree--

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), or by any responding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

(3) The Court may alter the original purposes of an express or constructive trust created for purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cypress in one or more of the following circumstances, namely:--

(a) where the original; purposes of the trust, in whole or in part,--

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust arid other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spire of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since, they were laid down,--

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.

The phrase used therein is "The Principal Civil Court of Original Jurisdiction". The words "Courts"; "Principal Court of Civil Jurisdiction" and "the District Judge" have not been defined in the Code of Civil Procedure. However, as per definition of the "District" as contained in Section 2 (4) of the Code, it is defined as the local limits of jurisdiction of the "Principal Civil Court of Original Jurisdiction" (which has been referred therein as a "District Court"). Section 2(4) of the Code of Civil Procedure is quoted as under:-

"(4) "district" means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court;"

In absence of any definition under the Code of Civil Procedure of the "District Judge", the Court has to lean and fall back on the definition of "District Judge" in the General Clauses Act as contained in Section 3(17) thereof as under-:-

"17. "District Judge" shall mean the Judge of a principal civil court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction;"

This apart, there is another statutory provision namely The Bengal, Assam and Agra Civil Courts Act, 1887 which was a consolidation and amendment Statute relating to Civil Courts in the States of Bengal, North Western Provinces and Assam in Pre-independence era. The said Act continued to remain in the the Statute book even after independence and is commonly known as "the Civil Courts Act" regulating the composition and functioning of the Civil Courts and, thus, supplementing the Code of Civil Procedure. For the purpose of various classes of judges of the District Court, Section 3 of the Civil Courts Act 1887 provides as follows:-

"3. Classes of Courts. There shall be the following classes of Civil Courts under this Act, namely--

(1) the Court of the District Judge;

(2) the Court of the Additional Judge;

(3) the Court of the Subordinate Judge; and

(4) the Court of the Munsif."

Section 4 further provides that the State Government may alter the number of the District Judges, Sub-ordinate Judges and Munsif fixed under the said Act.

Relevant Section 8, 9 & 20 of the Civil Courts Act' 1887 further reads as under:-

"8. Additional Judges.

(1) When the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the State Government may, 4 having consulted the High Court 5 appoint such Additional Judges as may be requisite.

(2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them, and, in the discharge of those functions, they shall exercise the same powers as the District Judge.

9. Administrative Control of Courts. Subject to the superintendence of the High Court, the District Judge shall have administrative control over all the Civil Courts under this Act within the local limits of his jurisdiction.

20. Appeals from District and Additional Judges.

(1) Save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of a District Judge or Additional Judge shall lie to the High Court."

(2) An appeal shall not lie to the High Court from a decree or order of an Additional Judge in any case in which, if the decree or order had been made by the District Judge, an appeal would not lie to that Court."

A conjoined reading of the above referred legislations clearly indicates that the Courts of Additional District Judges in various districts in the State of U.P. have been created by the State Government, in consultation with the High Court of Allahabad, for speedy disposal of the business pending before the District Judges. As per section 8(2) of the Act 1887, the Additional District Judges are empowered to discharge any of the function of the District Judge within the local limits of its jurisdiction which may be assigned to them by the District Judge and in discharging those functions, they shall exercise the same powers as that of the District Judge.

There cannot be a denial to the fact that the District Judge is the highest and superior most in the District with wide variety of powers. In discharge of his administrative powers, however, he can assign a function to an Additional District Judge which is to be discharged by him. There cannot be a dispute to the fact also that the District Judge, Agra in due exercise of her administrative powers had transferred the Misc case no.860 of 2016 by an order dated 22.12.2016 for the purpose of its disposal by the Additional District Judge/Fast Track Court No.1, Agra.

So far as the power of transfer provided to a District Judge under Section 24 of the Code of Civil Procedure is concerned, there cannot be a dispute that the District Judge can transfer any suit or other proceeding pending before it for the purpose of trial or disposal thereof to a Court of competent jurisdiction even subordinate to it by a judicial order, both on an application made by any of the parties or of its own motion, at any stage of the proceedings. Thus under the general power of transfer and withdrawal of any of suit, appeal or proceedings provided therein, the District Judge can transfer the proceeding pending before it or in any court sub-ordinate to it, including the Courts of Additional District Judge before a Court competent to try or dispose of the same and also to withdraw and transfer the same to some other Court.

Under sub section 3(a) of Section 24, only for the purpose of the said section, the Courts of Additional and Assistant Judges are deemed to be subordinate to the Courts of the District Judge. There is no other provision under the Code of Civil Procedure wherein the Court of Additional District Judge has been treated as a Civil Court of a grade inferior to that of the District Judge. The powers given to the District Judge under section 24 of the Code is in line with his administrative powers to administer the business of the Civil Courts as per section 9 of the Civil Courts Act 1887.

The subordination of the Court of the Additional District Judge is thus for the limited purpose of general power of the District Judge for transfer and withdrawal of cases from the Court of Additional District Judge under section 24 of the Code of Civil Procedure but that does not mean that the Additional District Judge has became a Court of the grade inferior to that of the Principal Civil Court of Original Jurisdiction or that of the District Judge.

The position of the Additional District Judge is thus equated to that of the District Judge of the District having identical judicial powers as may be conferred upon him. The power of discharge of judicial functions by the Additional District Judge in a District Court is absolutely same as that of the District Judge.

Even otherwise, as noted above, the Additional District Judge is a class of Civil Courts as envisaged (under section 3 of the Civil Courts Act' 1887) so as to assist the District Judge and he can exercise the same judicial powers as that of the District Judge which are assigned to him in due discharge of the administrative functions or on transfer of a proceeding under section 24 of the Code of Civil Procedure by the District Judge.

The exclusion under the Definition clause in section 3 (17) of the General Clauses Act to the meaning of the words "District Judge" as "Principal Civil Court of Original jurisdiction is only of the High Court of ordinary and extraordinary original Civil Jurisdiction. Whereas the Courts in the local limits of jurisdiction of a "Principal Civil Court of Original Jurisdiction" has been referred as the "District Court" in Section 2(4) of the Code of Civil Procedure.

Thus from the above discussion, it is evident that there is absolutely no distinction in the judicial powers/functions to be exercised by the District Judge and that of the Additional District Judge of a District Court.

This view is all the more substantiated by the fact that under the Civil Courts Act 1887, the jurisdiction exercised by the Principal Civil Court i.e. "the District Judge" and the "Additional District Judge" are same and the decree and orders passed by the Additional District Judge are not appealable before the District Judge. The appeals lies to the High Court both from a decree or order of an Additional District Judge and that of a District Judge. The position of law in this regard has also been clarified by the following observations of the Full Bench of High Court of Calcutta on a reference made to it:-

"68. We have carefully examined the contention of the respondent, but we are unable to accept the same. We are of the view that the aforesaid decisions of the Apex Court have not taken any contrary view to almost an unanimous view of all the Courts on the question of jurisdiction of the learned Additional District Judges and on the effect of transfer (assignment) of cases to them by the learned District Judge under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act or under the corresponding or analogous provisions of sister enactments. The transfer or assignment in all these cases may well be brought under the aforesaid Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, or, in the case of sister enactments, under the corresponding or analogous provisions thereof, though Section 24 of the Code of Civil Procedure also has sometimes been referred to in this connection.

69. There is no dispute here that, under the aforesaid sections (Sections 8(2) and 24) the learned District Judge has the power to transfer or assign cases, pending before him, to an Additional District Judge, provided the latter is a competent court for the purpose and provided also there is nothing to the contrary in the particular statute, under which the particular action has been initiated. In either case, then, the only point will be whether the learned Additional District Judge is a competent court for the purpose of the particular case and whether there is anything in the particular statute, under which the proceeding in question has been taken or started, to prohibit or preclude such transfer of assignment and that question must be decided in the light of the Government Notification of his appointment and the relevant sections of the Bengal, Agra and Assam Civil Courts Act, namely, Sections 4, 6 and 8, and the aforesaid particular statute.

70. It is convenient to state here that, under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, or the corresponding provisions of sister enactments, as alluded to above, the transfer or assignment of business by the learned District Judge to the Additional Judges conferred with it the necessary power or jurisdiction to deal with the same. It is to be noted also that the Additional District Judges have always been taken to be "Additional Judges" under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act and, in all the cases, cited above, that position has been accepted and the matter has been dealt with on that footing. Clearly, also, that view is entirely right.

71. We are, therefore, of the view that the Court of the Additional District Judge is also the principal Civil Court in the District and accept the view taken by the Hon'ble Division Bench in West Bengal Housing Infrastructure Development Corporation Limited vs. M/s. Impression. The view taken by National Highway Authority of India Vs. M/s. B. Seenaiah & Company (Projects) Limited would make the 'District Judge' a persona designata which has never been the intention of the legislature."

As discussed above, the Division Bench of this Court in Ram Kishore Sharma (supra) has held that in exercise of power under section 24(1) (a) of the Code, the District Judge is empowered to transfer the proceeding under section 92 of the Code at any stage of the said proceedings.

The observations made therein in paragraph no.5 (".........Section 92 of the Code merely requires the institution of a suit under that provision either before the District Judge or before any other Court empowered by the State Government to entertain such a suit. It does not concern itself with the further trial or disposal of the suit once it has been instituted before a proper Court.......") cannot be construed to mean that the District Judge was not empowered to transfer the proceeding for "grant of leave" under section 92 of the Code for the purpose of institution of the suit under the said provision.

Even otherwise, on merit of the application for grant of leave under section 92 of the Code, it is a matter between the "Court" and "the applicant". For grant of leave, only the plaint allegations are to be seen. The purpose of the provision to seek leave of the Court is to prevent filing of the frivolous suit. No notice is required to be given to the defendants. The order refusing leave would be appealable under section 104 (1) of the Code of Civil Procedure as it would result in automatic dismissal of the prayer for institution of suit. Reference Charan Singh & another Vs. Darshan Singh & others reported in 1975 (1) SCC 298, R.M. Narayana Chettiar & another Vs. N. Lakshman Chettiar & others reported in 1991 (1) SCC 48, B.S. Adityan & others Vs. B. Ramchandran Adityan & others reported in 2004 (9) SCC 720, Raju Pillai & others Vs. V. Parmasivam reported in AIR 1995 MAD 253, Prabhu Dayal Tiwari Vs. Lakhan Singh & others reported in AIR 2001 Alld 60.

So far as the submission of learned counsel for the petitioner regarding the stage of "institution" and "trial" of the suit under section 92 of the Code of the Civil Procedure is concerned, there may not be a dispute that the leave of the Court is a pre-condition for institution of the suit and a suit under section 92 of the Code without leave is not maintainable. But this Court has not been able to convince itself to the submission of learned counsel for the petitioners that though the suit under section 92 of the Code can be tried for disposal by the Additional District Judge after transfer  to it by the District Jude but prayer for leave to institute the said suit cannot be granted by it.

The distinction which the learned counsel for the petitioner tries to draw with the observations of the Division Bench judgement of this Court in Ram Kishore Sharma (supra) is not tenable.

In so far as ratio of the judgement in M/s ITI Allahabad (supra), relied upon by learned counsel for the petitioner is concerned, the said pronouncement pertains to the jurisdiction of the "District Judge" under the Arbitration and Conciliation Act' 1996 to entertain an application under section 34 of the Act for setting aside an arbitral award. The word "Court" as used in the said Act has been defined under section 2(e) of the said Act itself.

Moreover, the said judgement has been considered by a Full Bench of the Calcutta High Court in West Bengal Housing Infrastructure Development Corporation (supra) and a note of dissent has been added to the observations made therein that the said view cannot be accepted in the light of the provision of Section 3 of Civil Courts Act' 1887. It has also been considered therein that though the definition under Section 2(e) of the Arbitration Act does not include any Court of grade inferior to the "Principal Civil Court of Original Jurisdiction" and does not refer to the Additional District Judges but the Court of Additional District Judge being not inferior to the Court of District Judge, the effect of exclusion in the said clause 2(e) of the Arbitration Act, had not been considered in the correct perspective.

For the above discussion, the observations made in paragraph no.13 of the judgement in M/s ITI Allahabad (supra) regarding the ratio of judgement in Ram Kishore Sharma (supra) can also not be taken aid of, to impress upon the Court for drawing difference/distinction between two stages i.e. the institution and trial of the suit under section 92 of the Code of Civil Procedure and to assert that the aforesaid judgement of the Division Bench would be confined only to the subsequent stage of trial and disposal of the suit under Section 92 of the Code of Civil Procedure.

For all the above reasons, this Court is of the view that the order passed by the District Judge to transfer the proceeding of the Misc. case no.860 of 2016 (Gaurav Jain Vs. Ashok Kumar before the Additional District Judge/FTC no.1 Agra cannot be faulted with. The Additional District Judge/Fast Track Court cannot be said to be lacking in jurisdiction in proceeding with the matter.

The present petition is found devoid of merits and hence dismissed.

Order Date :- 30.11.2017

Himanshu