IN RE: ANTHONY FERNANDES AND ORS. Vs. STATE

JUDGEMENT

(1.) THE petitioners are legal heirs of Mr. Custodio Nocholas Fernandes (hereinafter referred to as "the deceased"). The deceased died at Karad on or about 16th December, 1989. Smt. Olive Fernandes, wife of the deceased died on 29th September, 1989. The petitioners are children of the deceased. The deceased was an Employee of the Metal Box Co., of India Ltd., and was entitled to receive gratuity and other dues form his employers. The petitioners seek issue of heirship certificate from this Court under Clause 3 of Bombay Regulation VIII of 1827 in form prescribed in Appendix 'B' thereto.

(2.) THE petitioners had originally made an application for the same relief to the Bombay City Civil Court at Bombay by filing Miscellaneous Petition No. 34 of 1991. By an Order dated 2nd February, 1991, Shri V.D. Deshmukh, the Additional Principal Judge of Bombay City Civil Court at Bombay, held that the petition was not maintainable in the Bombay City Civil Court at Bombay as it could be filed only before "The District Judge" and the expression "District Judge" as used in the applicable provisions of law meant a Judge of 'Principal Civil Court of Original Jurisdiction'. The learned Judge took the view that the Bombay City Civil Court was not a Principal Civil Court of Original Jurisdiction and the Bombay City Civil Court had no jurisdiction to entertain the petition. The learned Judge carefully analysed the provisions of law contained in Bombay City Civil Court Act 1948 and held in substance that the High Court alone had jurisdiction to entertain the petition. Thereafter, the petitioner has filed the present petition in this Court.

(3.) BY an Order dated 27th September, 1991, I.G. Shah, J., directed issued of proclamation under R.2 of the Bombay Regulation VIII of 1827 in the form prescribed in Appendix "A" to the said Regulation inviting objections from persons concerned within one month from the date of the said proclamation. The Proclamation was duly published. No objections were received. By my Order dated 20th August, 1992, I made the petition absolute in terms of prayer (A) of the petition.