RAJA RAM PAL Vs. SARDAR JASWANT SINGH

JUDGEMENT

(1.) THIS case has been referred to a Division Bench by a learned Single Judge of this Court for the decision of me question.

(2.) BEFORE proceeding with the discussion of the question referred to us it may be noted that the case of Sri Sheonath Prasad v. City Magistrate Varanasi, AIR 1959 All 407 which was relied upon by the opposite parties was a case in which the question arose whether the civil court to which a reference had been made by the criminal court was a "court of competent Jurisdiction" to decide the matter. The argument was that the property involved was valued at more than Rs. 5,000/- and, therefore, the Munsif to whom the reference had been made was incompetent to decide it. A learned Judge of this court, who heard that case, came to the conclusion that a reference under Section 146 Cr. P. C. pending in a civil court retains its character as a proceeding under Section 145 Cr. P. C. and the competence of the court is not to be decided by taking into consideration the pecuniary jurisdiction of the court, as in Civil suits, but it has to be decided only with reference to the territorial Jurisdiction of the court, as the Criminal Procedure Code contemplates only territorial Jurisdiction of criminal courts. The precise question which has arisen in this case did not really arise there, and, therefore, we need not go Into further consideration of that case.

(3.) THE applicant had relied upon two cases of the Madras High Court--Kochadai Naidu v. Nagava-sami Naidu, AIR 1961 Mad 247 and Kondammal v. Duraiswaml Naicker, AIR 1961 Mad 384. In the first case the point for consideration was whether a proceeding referred to a civil court could be transferred under Section 24 of the Civil Procedure Code to another court of competent jurisdiction, and the learned Judge who decided that case came to the conclusion that a 'proceeding' mentioned in Section 24 of the Civil Procedure Code is wide enough to include a proceeding consequent upon a reference under Section 146, Cr. P. C. and, therefore, it could be transferred to any other competent court. In the second case the question was exactly the same as has arisen in the present revision, and the learned Judge who decided the case came to the conclusion that the provisions of Order 9, Rule 13, of the Civil Procedure Code apply to a proceeding upon a reference under Section 146 of the Criminal Procedure Code. The Judgment is a very short one and the decision is based upon the earlier decision mentioned above and it was taken to imply that all the provisions of the Civil Procedure Code are applicable to a proceeding on a reference under Section 146 of the Criminal Procedure Code. The Madras High Court itself reconsidered the matter in Periyakaruppa Thevar v. Vellai, AIR 1963 Mad 338 and it was expressly held that the provisions of the Civil Procedure Code contained in Order 9, Rule 13, are not applicable to proceedings on a reference under Section 146 of the Criminal Procedure Code. (Thus no conflict now exists on the point ). The main reasons which appealed to the learned Judges who formed the Division Bench deciding that case were that such a proceeding is not a proceeding within the meaning of Section 141 of the Civil Procedure Code as that section relates only to original proceedings originating in the Civil Court and also that the procedure of setting aside an ex parte order is in the nature of a substantive right and is not and is not merely a procedural provision and by virtue of Section 141 of the Civil Procedure Code this provision cannot be made applicable to proceedings of this nature.