Madras High Court
J.Krishna Kumar Mundhra vs J.Shyamdev Mudhra on 19 October, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
C.M.A.Nos.1150 & 1151 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 10.09.2024
Pronounced on : 19.10.2024
CORAM : JUSTICE N.SESHASAYEE
C.M.A.Nos.1150 & 1151 of 2023
and CMP.Nos.11141 & 11142 of 2023
J.Krishna Kumar Mundhra ... Appellant in both CMAs/
Respondent / Defendant
Vs
J.Shyamdev Mudhra ... Respondent in both CMAs/
Petitioner /Plaintiff
COMMON PRAYER : Civil Miscellaneous Appeals filed under Order
XLIII Rule 1(r) of the Code of Civil Procedure, 1908, praying to set aside
the fair and decretal order dated 11.05.2023 made in I.A.No.3 of 2023 &
I.A.No.5 of 2023 in O.S.No.3295 of 2023 on the file of the V Assistant
Judge / Vacation Judge, III Assistant City Civil Court, Chennai.
For Appellant : Mr.V.Raghavachari, Senior Counsel
Assisted by Mr.P.Krishnan
For Respondent : Mr.N.Muralikumaran, Senior Advocate
M/s.McGan Law Firm
1/21
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COMMON JUDGMENT
The appellant in both the appeals is the younger brother of the respondent
herein. He now challenges an order passed by the V Assistant City Civil
Court dismissing I.A. No.5 of 2023 in O.S. No.3295 of 2023, which he had
filed for vacating the order of ex-parte injunction granted in I.A. No.3 of
2023.
2. The brief facts which are necessary for the current purpose, may be stated
as below:
a) The suit property herein is a residential house in a plot measuring
2784.75 sq.ft. This property is stated to be part of a larger plot
measuring more than 10,000 sq.ft. Claiming that the plaintiff is in
possession of the said property, he had laid the present suit for bare
injunction. The suit was laid on 03.05.2023 before the vacation court.
Along with the suit, the plaintiff took out an interlocutory application
in I.A. No.3 of 2023 for an order of interim prohibitory injunction
against the defendant/appellant herein to protect his possession. That
was granted by the trial court.
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b) But, according to the defendant, he is in possession of the property.
Now by virtue of the ex-parte order of injunction passed in I.A. No.3
of 2023, the plaintiff came to the property with several black and
white clothed men and attempted to evict him forcibly from the
property. According to him, the defendant cell-phonically called the
police and the police too responded to the same and came to the scene
of occurrence. However, the police could not prevent the plaintiff
from taking forcible possession of the property based on the ex-parte
interim order of injunction. Therefore, the defendant preferred a
complaint, based on which a case was registered against the
plaintiff/respondent herein and other unknown persons in Crime
No.108 of 2023 on the file of Mambalam Police station for offences
under Sections 147, 294(b), 447 and 506(i) IPC.
c) In the following vacation court, the appellant herein took out I.A.
No.5 of 2023 for vacating the ex-parte order of injunction. According
to the defendant, the learned Vacation Judge was not keen to dispose
of the same immediately, but ultimately he did hear both sides and
dismissed the application filed by the defendant for vacating the
injunction and made the order of interim injunction granted under I.A.
No.3 of 2023 absolute.
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d) Challenging this order, the defendant has come forward with these
two appeals.
3. When the matter came up before the vacation court of this court, a learned
single Judge of this court passed an order on 13.05.2023 in C.M.P.
No.11141 of 2023, suspending the order of injunction granted in I.A. No.3
of 2023.
4. The plaintiff took up this matter before the Hon'ble Supreme Court in SLP
(C) No.11163 of 2023 and that came to be disposed of by the Hon'ble
Supreme Court vide its order dated 30.05.2023 with a direction to the parties
to preserve the status quo that was at the time when the SLP was disposed
of. Indeed, the respondent herein raised the issue of maintainability of these
appeals before the Hon'ble Supreme Court, and the Supreme Court has
directed this court to decide the issue of maintainability. The operative
portion of the order of the Hon'ble Supreme Court reads thus:
"Be that as it may, after hearing Mr.Muralikumaran and
Mr.S.Nagamuthu, learned senior counsel of the two parties,
we are of the opinion that since the appeal is pending before
the High Court, it would be better that the appeal be decided
expeditiously and, in the meanwhile, the parties shall
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maintain status quo as on date. With these observations,
special leave petition is disposed of. In case the appeal is to
be decided by the learned District Judge, then in that event it
shall be transferred to that court by the High Court."
5. This now leaves this court to consider two aspects:
(a) the maintainability of these appeals; and
(b) the sustainability of the order of interim injunction passed by the
vacation Judge of the City Civil Court in I.A. No.3 of 2023.
Since the need to decide the appeals on merits depends on the outcome of
the issue of maintainability of the appeals, that issue is taken up.
Issue of Maintainability
6. As could be gathered from the facts-narration above, the vacation court
sitting on the original jurisdiction has passed an order of interim injunction.
However, only one vacation court is constituted and the same court is vested
with both the original jurisdiction as well as appellate jurisdiction.
Necessarily an appeal against the order passed by a vacation court cannot be
filed before the same court. It is in these circumstances, these appeals came
to be filed. However, in its order in SLP (C) No.11163 of 2023, the Supreme
Court has directed: “In case the appeal is to be decided by the learned
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District Judge, then in that event it shall be transferred to that court by the
High Court." It is hence, deciding the issue of maintainability of the
appeals has become imperative.
7. The learned counsel for the respondent/plaintiff raised two aspects on
maintainability:
a) Maintainability of the appeals per se; and
b) Even if the appeals are considered as validly laid before this Court,
should they not be transmitted to the City Civil Court, once the courts
are re-opened after the vacation?
8. The learned counsel for the respondent/plaintiff argued:
a) An appealable order of the Subordinate court will lie only to the
District Court and not the High Court.
b) As per the notification declaring summer vacation for the City Civil
Court during May, 2023, two different Judges were constituted as
vacation Judges, one for the first half and the other for the second half
of May, 2023. The order now under challenge was passed by a Judge
during the first half of the vacation, and hence the appeal against the
same should have been filed only before the Judge who presided the
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vacation court during the second half of May, 2023. When the
appeals could have been validly filed before a different Judge during
the second half of the vacation, this court should not have entertained
the appeals.
c) Sec.15(2-C) of the Madras City Civil Court Act, 1892, positively
stipulates that appealable orders passed by any Assistant Judge of the
City Civil Court will lie to the Principal Judge of the Court.
Necessarily, the appeals cannot be maintained, at any rate, after the
regular courts have reopened after vacation.
Reliance was placed on the ratio in Jumna Bai Vs
S.Rm.M.Rm.Ramanathan Chettiar [(1928) 28 LW 684], V.S.A.Krishnan
Mudaliyar Vs S.A.Sabapathi Mudaliar [(1945) 58 LW 7], Sundaresan
Chettiar Vs Abhirami Ammal [(1946) 59 LW 677] and Sri Rangam
Municipality Vs R.V. Palaniswami Pillai [(1951) 67 LW 327].
9. Claiming that this Court has jurisdiction to retain the appeals in its file,
Mr.V.Raghavachari, the learned senior counsel appearing for the
appellant/defendant made the following pointed submissions:
a) So far as the courts subordinate to the Madras High Court are
concerned, they are constituted under two independent statutes. The
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first is the Tamilnadu Civil Courts Act, 1873, which governs the
establishment of courts outside the Presidency town, and the next is
the Madras City Civil Court, Act, 1892, under which additional civil
courts are established within the Presidency town.
b) So far as the courts constituted under the Tamilnadu Civil Courts Act,
1873 are concerned, Sec. 30 thereof enables the High Court to declare
holidays and vacations for an aggregate of two months every year.
Under Section 30(2) of the Act, a Vacation Judge is required to be
constituted whenever vacations are notified. Section 30(6) provides
that on reopening of the Courts, the cases received by the Vacation
Court are required to be transmitted to the courts where they would
have been filed but for the vacation.
c) So far as the Madras City Civil Court Act, 1892 is concerned, the
preamble of the Act states that the intention behind the legislation is to
establish an additional civil court for the city of Madras. Here the
statute has very carefully employed the expression "additional civil
court", since the High Court has the original jurisdiction. To state it
differently, inasmuch as the High Court has the original civil
jurisdiction, all that the Madras city requires is only additional civil
courts, and not any Principal civil court of Original Civil jurisdiction
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as in the Tamilnadu Civil Courts Act, 1873. What could be deduced
from this is that the statute also recognizes or equates the original side
of this court as the principal court of original civil jurisdiction and this
interpretation is consistent with the preambular expression: an Act for
establishing an additional civil court for the city.
d) A comparative analysis of the aforesaid provisions only indicates,
while receiving and transmitting of all cases by the vacation courts to
the other courts is available under Section 30(6) of the Tamilnadu
Civil Courts Act, 1873, no need was felt in making similar provision
in the City Civil Court Act,1892, since the original side of the High
Court itself is the Principal Court of original civil jurisdiction.
e) This apart, even under clause 13 of the Letters Patent, this court has
every jurisdiction to withdraw any suit to its file, which implies it will
not be incompetent for this court to entertain these appeals.
Discussion & Decision:
10. Rival submissions are weighed for their merit. The first leg of the
respondent’s contention is that, inasmuch as the vacation judge for the
second half of the summer vacation was a different officer and not the same
officer who passed the order impugned in these appeals, they could have
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been filed before the Presiding vacation Judge for the second half of the
summer, and hence this court should not have taken the appeals on its file.
This argument is impressive at the first blush, but fails to sustain the
impression it made on a deeper consideration. Principally, any order is
passed by the Court and it must be distinguished from the Judge, even
though it is the Judge who pens the order for the Court. Suppose the appeal
is filed during the second half of the vacation court before another Presiding
Officer, and if that judge chooses to hear the matter and decides to remand
it, which is one of the procedural possibilities, who will hear the matter on
the original side after remand? Obviously, it has to be the same Judge. Given
the fact that summer vacation spans for a bare 30 days, it may be an
improbable situation, still there is a theoretical possibility that it may
happen. Therefore, just as an appeal from an appealable order passed by a
vacation court may not lie before the same Judge, an appeal also cannot lie
before different judges of the same vacation court. Therefore, there is
nothing wrong in the appellants approaching this court with these appeals.
After all ubi jus ibi remedium, and the Court must invent ways and means to
do justice and cannot plea helplessness citing the rule book, which is but a
handmaid of justice, and refuse to hear him. Justice shall be truly enthroned
when this Court expands its power to do justice wherever adherence to rule
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book on jurisdiction may create absurd consequences not in contemplation
of the rule maker.
11. The second aspect is about retaining these appeals after the vacation.
According to the appellant, since there is no provision parallel to Sec.30(6)
of the Tamil Nadu Civil Courts Act, 1873 in the CCC Act to enable the
vacation court constituted under the CCC Act to transmit the cases filed
before it to the courts which would have jurisdiction after the vacation, and
since city civil courts are constituted only as additional courts to the High
Court, this court has power to retain the appeals filed before it even after the
vacation.
12. The issue whether the appeal filed before the vacation court of the High
Court should be transmitted to the appropriate city civil court post vacation
is concerned, it requires to be emphasised that even though the Original side
of this court is conceptualised as the Principal Court of Original Civil
jurisdiction inasmuch as the CCC Act has indicated in its preamble that it
intends to constitute only additional civil courts, still it should not be
forgotten that a vacation court constituted under Sec.18 of the CCC Act is
intended to be a contingency mechanism during vacation. Hence a single
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court is constituted as a vacation court without reference to the pecuniary
jurisdiction. (If it were a vacation court constituted under the Tamil Nadu
Civil Courts Act, then its jurisdiction is unfettered vis-a-vis both the
pecuniary as well as territorial jurisdiction). The vacation court is temporary
in character and its constitution during vacation is not aimed to erase the
pecuniary jurisdiction of regular courts but only to suspend it during
vacation. If however, it is considered otherwise, then it will mean Sec.18 of
the Act will enjoy the privilege to override Sec.15 of CCC Act under which
pecuniary jurisdiction of different classes of civil courts is prescribed.
13. Turning to the authorities which the respondent has placed before this
court, all the cases relied on by him arise out of some proceedings instituted
before the High Court which ought to have been filed before the mofussil
courts (now Courts subordinate to the High Court) constituted under the
Tamil Nadu Civil Courts Act, when those courts were closed for vacation.
a) Jumna Bai case [(1928) 28 LW 684] was a leading case on the point.
The points which confronted the learned Single Judge of this court
were twofold: (i) maintainability of any proceedings, suits, and appeal
which are filed before the High court, but ought to have been filed
before the mofussil court but could not be filed there owing to
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vacation; and (ii) maintainability of any interlocutory proceedings
which are instituted before the High Court in matters which are
pending before the mofussil court due to inability to institute there
owing to vacation. The learned single Judge held that even under
clause 13 of the Letters Patent, the High Court cannot exercise
jurisdiction in the first class of cases, since it requires pendency of
suits before the courts subordinate to the High Court. The learned
Judge proceeded to hold that the High Court is not the venue where
fresh suits or appeals could be filed when the courts subordinate to the
High Court, before which they had to be filed, are on vacation, and
those “plaints and petitions shall be returned for presentation to be
presented to the proper courts.” While dealing with this issue, the
learned single Judge had held:
“...I do not find any provision of law by which the High
Court can in the first instance receive a plaint which ought
to be filed in some inferior court within the presidency and
pass orders pending the disposal of the suit. It may be that
the High court has concurrent jurisdiction along with the
City Civil Court and the Small Cause Court within the
limits of the ordinary Original Civil Jurisdiction, and in
respect of suits arising within that area the matter may be
different.”
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The learned Judge has made a conscious distinction between City
Civil Courts and Small Causes Courts within the Presidency town and
the courts subordinate to the High Court outside the limits of the
Presidency town, and vis-a-vis the former class of courts, the High
Court has concurrent jurisdiction. Therefore, the appeals are
maintainable against an appealable order passed by the vacation court
of the City Civil Court.
b) In Krishna Mudaliyar case [(1945) 58 LW 7] a Full Bench of our
High Court has approved the decision of Jumna Bai case where the
Court held that during summer recess when supplementary
proceedings are proposed to be instituted in any suit pending before
those courts which are outside the original jurisdiction of the High
Court, the suit itself can be temporarily withdrawn under clause 13 of
the Letters Patent to the file of this court, and can be retransferred for
trial once the courts are re-opened after vacation.
c) In Palaniswami case [(1951) 67 LW 327] a Division Bench of this
Court was confronted with a situation where a suit was temporarily
transferred invoking Sec.24 CPC for moving an application for
injunction in a suit pending before a mofussil court. The issue was
more on whether the pending suit must be withdrawn to the original
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side or not.
d) Sundaresan Chettiar case [(1946) 59 LW 677] is where some urgent
orders were required on an Original Petition under the Guardian and
Wards Act when the jurisdictional court was on vacation, and a
learned Single Judge of this Court held that it could be received by the
High Court and could be transmitted to the court concerned once that
reopens after vacation. That was also a case where Sec.24 CPC
appeared to have been invoked.
14. What could be gathered from the tenor of the above set of authorities is
that the practice which has gained ground in this Court is that when the High
Court receives any proceedings which ought to have been filed before a
mofussil court when those courts are on vacation, then they are required to
be transmitted to those courts when they are re-opened. Now, how far the
present set of cases are any different merely because the orders that came to
be challenged were passed by the vacation court, which for the reasons
stated, are not the ideal courts for instituting these appeals? Does the fact
that the High Court assumes the role of the Principal Court of Original Civil
jurisdiction vis-a-vis the Courts constituted under the City Civil Courts Act
make any difference?
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15.1 This Court considers that the appropriate approach to the issue would
be whether the High Court could have been approached if there is a
competent court functioning to receive the appeals? Contextually, if it were
not for vacation, would the appellants have moved this Court with their
appeals, or would the High Court have received them onto its file? The
answer to both is an obvious No. Therefore, the High Court's jurisdiction
was invoked essentially because the appellants did not have a competent
appellate court for them to institute their appeals during vacation. And the
High Court exercising jurisdiction under the circumstances is purely
contingent, and hence it would be only appropriate that once the competent
appellate court becomes functional after the summer recess, the High Court
transmits these appeals to the City Civil Court.
15.2 Here, the appellant comes out with an argument that under Sec.30(6) of
the Tamil Nadu Civil Courts Act, post vacation, the cases which were filed
before the vacation court are transmitted to the court of competent
jurisdiction before which they would have been filed but for the vacation,
but there is no parallel provision in the CCC Act and hence it must be
construed as enabling the High Court to retain the appeal filed before its
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vacation court even though in ordinary circumstances such appeal would
have to be filed only before the first appellate court established under the
CCC Act.
15.3 Sec.30(6) of the Tamil Nadu Civil Courts Act reads as below:
Sec. 30- Vacation:
(1) to (5)…
(6) On the reopening of the District Court, a Subordinate
Judge's Court or a District Munsif's Court after the summer
vacation, all suits, appeals and other proceedings pending in
the Court of the Vacation Civil Judge which, but for this
section, would have been instituted or pending in such District
Court, Subordinate Judge's Court or District Munsif's Court, as
the case may be, shall stand transferred to such District Court,
Subordinate Judge's Court or District Munsif's Court and any
decree, order or proceeding passed by the Vacation Civil Judge
shall, after such transfer, be deemed to be decree, order or
proceeding passed by the Court concerned.
And, it is true that in Sec.18 of the CCC Act under which vacation courts are
constituted during summer recess for the city civil courts, there is no
provision similar to Sec.30(6) of the Tamil Nadu Civil Courts Act. This
Court considers that it does not make any difference. It can be explained.
Now, let the Vacation Court of the High Court be taken away from the line
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of consideration. Suppose a suit or an appeal which has to be filed before a
court of competent civil jurisdiction with limited pecuniary jurisdiction is
filed before the vacation court. Now, with the annual vacation coming to an
end, the vacation court will also come to an end. What will happen to all the
suits and appeals filed before the vacation court and where to post them? If
the arguments of the appellant are reckoned then these suits and appeals
need not be transmitted to regular courts of competent jurisdiction because
there is no express provision in the CCC Act which enables it. It will lead to
very absurd consequences, as there will be no courts to which the cases
instituted during vacation courts could be transmitted and the vacation court
itself will stand abolished after the duration of the vacation. Therefore it is
necessary for this court to supply casus omissus into Sec. 18 of the CCC
Act, a provision similar to Sec.30(6) of the Tamil Nadu Civil Courts Act.
And, merely because the High Court steps to entertain an appeal before its
vacation court in circumstances such as the one involved in this case, it does
not imply that this Court should necessarily retain the appeal.
15.4 That the High Court might have powers to remove any appeal pending
before the City Civil Court under Sec.24 CPC, only underscores the point
that the High Court has the power to deal with the appeals which are
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pending before any court subordinate to it, but it does not envisage that the
High Court should necessarily retain any appeal which it was required to
receive as a contingent measure.
16. This Court, therefore, holds that these appeals when they were filed
before this Court though were maintainable, yet there is no reason for this
Court to retain them in its file after the City Civil Courts have begun to
function after the summer vacation. Therefore, this Court directs that both
these appeals be transferred to the Court of the Principal Judge, City Civil
Court, to enable the said Court to deal with them as per law. The appeals are
disposed of in the manner indicated above. No costs. Consequently,
connected miscellaneous petitions are closed.
19.10.2024
Index : Yes / No
Neutral Citation : Yes / No
ds
To:
1.The V Assistant Judge / Vacation Judge
III Assistant City Civil Court, Chennai.
2.The Section Officer
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VR Section
High Court, Madras.
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N.SESHASAYEE.J.,
ds
Pre-delivery Judgment in
C.M.A.Nos.1150 & 1151 of 2023
19.10.2024
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