VISWAMBHARAN Vs. DAMODARAN NAIR

JUDGEMENT

(1.) A suit that had to be filed before the Munsiff's Court, Thodupuzha was filed by the first respondent against respondents 2 and 3 and the C. M. Appellant (3rd defendant) during vacation before the nominated District Judge, Thodupuzha under S.19(2) of Kerala Civil Courts Act as amended by Act 33 of 1986. In that suit the plaintiff filed I. A. 194/88 praying for temporary injunction restraining the appellant from conducting a toddy shop in the plaint property which was sanctioned by the third respondent after suit. No provisional order was passed. After issuing a commission and hearing both sides, the nominated District Judge by order dated 20-5-1988 finally disposed of the I. A. on the merits by allowing the same with costs. The order is challenged by the third defendant.

(2.) I am not going into the merits of the matter fearing that any discussion is likely to embarrass the Munsiff who will have to pass order on the application. Any how there was no dispute that the nominated District Judge acted illegally and without jurisdiction in passing the impugned order. S.19(1) of the Civil Courts Act authorises the High Court to permit the civil courts under its control to adjourn from time to time for periods not exceeding in the aggregate sixty days in each year. During such adjournment, when judicial work cannot be transacted, in order to meet urgent situations, under S.19(2), the High Court shall nominate a District Judge for each District, who shall have the power to make provisional orders on all urgent matters and for such purpose, receive plaints, appeals, petitions and other matters which would ordinarily be presented before the District Court or such other Civil courts subordinate to it which were so adjourned. Except on matters that could ordinarily be presented in the District Court, the order passed by the nominated District Judge could only be provisional on urgent matters and such orders could remain in force only until such matter has been heard and decided by the court having jurisdiction on it being seized of the matter after the, reopening. But regarding matters to be presented before the District Court itself, irrespective of the fact that the District Court is also adjourned and the District Judge is acting only as the nominated District Judge under S.19(2), he can pass such orders as could be passed by a court having jurisdiction. That means in other matters to be presented before other courts which; stand adjourned, his orders, except those that are provisional and on urgent matters, are without jurisdiction. This provision is intended to obviate the statements that is likely during vacation on account of the impossibility of getting provisional orders on urgent matters. An urgent provisional-order is a temporary order on an urgent matter provided for the present need or for the occasion as distinguished from a considered final order on the merits after hearing the parties or otherwise. When once such an order is passed the nominated District Judge cannot go on passing orders on the merits which will have to be passed by the regular courts. I do not mean to say that he cannot vacate the provisional order or pass other orders as the exigencies of the situation needs. But all the orders could only be provisional on urgent matters leaving the normal court to pass regular orders on the merits. Anything beyond that is without jurisdiction and illegal because of the jurisdictional impairment on account of the circumspection to the powers. (See Ramankutty v. Ayissakunhi ( 1987 (2) KLT 895 ). Even if both sides agree the nominal District Judge cannot exceed his powers under S.19(2) because consent of parties will not invest him with the jurisdiction which he is not having.

(3.) Before the amendment this jurisdiction vested under the provision only in the High Court. At that time the provision came up for consideration in Kolavan v. Allu Acha Menon ( ILR 1961 (2) Ker. 224 ) and Appu v. Muthuvelu ( 1962 KLT 344 ). Both the decisions said that the plain effect is to confer on the High Court, during the adjournment of the Subordinate Civil Courts, the power to pass provisional orders of an urgent nature in all cases instituted, or to be instituted, in such courts and such provisional orders will remain in force only until the matter has been heard and decided by the courts concerned. Such orders are of an ad interim nature and they will not be treated as orders passed by the High Court or the District Judge but only by the concerned court for all practical purposes.