KARIMULLAH Vs. SRI RAM AND PEAREY

JUDGEMENT

(1.) This is a reference made by the learned Munsif of Etah under Sec. 113 of the Code of Civil Procedure read with Order 46 rules 1 and 6 of the Code of Civil Procedure. A suit based on a pronote and a receipt for recovery of Rs. 456.25 nP. was instituted before a Nyaya Panchayat. The Nyaya Panchayat decreed the suit. Against that decree one of the parties came up in revision before the learned Munsif under Sec. 89 of the Panchayat Raj Act. The Munsif set aside the decree passed by the Nyaya Panchayat and then transferred the suit to the court of the Judge, Small Causes for disposal under Sec. 89(2) (d) of the Panchayat Raj Act. In adopting this course he decided not to remand the suit to the Nyaya Panchayat and further not to try it himself. In the same way, a number of other suits were also transferred to the same Judge, Small Cause Court. The Judge Small Cause Court returned all those suits to the learned Munsif on the ground that the learned Munsif had no jurisdiction to transfer these suits for trial to him. The learned Munsif there upon made another order sending the suits back to the learned Judge Small Cause Court on the ground that he had already made a judicial order transferring those suits and once those orders of transfer had been made he ceased to have jurisdiction to try the suits. The learned Judge, Small Cause Court again returned all those suits to the learned Munsif with the remark that if the Munsif did not agree with him, he (the Munsif) may please refer the matter to the High Court. It is in these circumstances that the learned Munsif referred these cases to the High Court after framing the following question of law :

(2.) We have come to the conclusion that the question referred to us by the learned Munsif must be answered in the affirmative. The language of Sec. 89 of the U.P. Panchayat Raj Act is quite plain and furnishes a complete answer to this question. Under Sec. 89(2) of the Act the Munsif is given full discretion to decide whether, when he sets aside the order of the Nyaya Panchayat, he should, try the case himself, or transfer it to any other court or officer competent to try the same. These suits to which the reference relates were all based on pronotes and were of such a valuation that, if the Panchayat Raj Act had not been in force, all these suits would have been cognisable by the Judge Small Cause Court (Civil Judge), who was empowered to try suits of small cause court nature upto the value of Rs. 500.00. The Judge Small Cause Court was, therefore, a court competent to try these suits. That competence was no doubt affected at one stage by the provisions of Sec. 55 of the Panchayat Raj Act which barred that court from taking cognizance of these suits. When the Munsif under Sec. 89 decided to interfere in revision and to set aside the judgments passed by the Nyaya Panchayat, the bar of Sec. 55 of the Panchayat Raj Act ceased to operate. Thereafter, the Munsif had the option to adopt any of the courses laid down in Sec. 89(2) of the Act. He had the option to quash the decrees or the orders passed by the Nyaya Panchayat or modify these orders so as to finally conclude the proceedings in the suits then and there. Another alternative was to remand the cases to the Nyaya Panchayat for retrial. Finally, there was the option in him to try the cases himself or transfer them to any other court competent to try the same. Competence of the court to which the suits could be transferred under this last provision had at this stage to be determined irrespective of the provisions of the Panchayat Raj Act. The suits, as we have mentioned earlier, were all of such a nature that, if the U.P. Panchayat Raj Act had not come into force, they would have been cognisable by the Judge Small Cause Court (Civil Judge) and by no other court. That Judge Small Cause Court was, therefore, competent to try the suits and in these circumstances the Munsif had the jurisdiction to transfer these suits for trial to him. This position is made clearer if reference is made to the provisions of Sec. 58 of the Panchayat Raj Act under which the Nyaya Panchayat itself is given power to transfer the suits under the special circumstances mentioned therein. The power conferred on the Nyaya Panchayat is to transfer the suits under those circumstances to the court of competent jurisdiction and, if in these suits, the Nyaya Panchayat had decided to adopt that course the suits could have been sent to the Judge Small Cause Court (Civil Judge) and to no other court. The power which the Nyaya Panchayat could have exercised under Sec. 58 of the Panchayat Raj Act is the very power which is also exercisable by the Munsif under Sec. 89(2) (d). The order transferring the suits to the Court of Small Causes was, therefore, a valid order.

(3.) The learned Judge of the Small Cause Court, when returning these suits to the Munsif, had expressed his opinion that the suits had to be tried by the Munsif himself as regular suits and could not possibly be transferred to the Small Cause Court. Sec. 89(2) (d) does give the option to the Munsif to try such suits himself but that provision is open to two different interpretations. One is that he should try those suits himself only if he, as munsif, is competent to try them. The other interpretation is that he can try those suits himself even if otherwise the suits were cognisable and triable by some other competent court because the provisions of Sec. 89(2) (d) empower him to try the suits himself. That is, however, an aspect on which we need not express any opinion in this reference. Whatever be the interpretation of the first clause which gives to the Munsif the option to try the cases himself, that interpretation can in no way affect the power given to the Munsif to transfer the suits to some other competent court and the Judge Small Cause Court (Civil Judge) being the competent court for these suits, the order of transfer was valid and correct.