SAMPATLAL KESHAN Vs. BALIPRASAD SHAH

JUDGEMENT

(1.) This petition of revision is directed against the order of Mr. D. N. Hazarika Spl. Subordinate Judge. A. V. D., dated 13th March 1948, by which plaintiffs' application for restoration of their suit, which had been dismissed in default, was allowed and the suit restored. The petition was presented to Sir R. F. Lodge, the then Chief Justice of this Court on 1st; June 1948. He was the only Judge of the Court at that time. No other Judge had been appointed till then He heard the advocate for the petitioner and directed that a rule should issue calling upon the Court concerned to show cause why the order complained of in the petition be not set aside. Usual notices on the opposite parties were also ordered to issue. Further proceedings in the suit were stayed. The opposite parties have been served, the records have been received and the petition is now before us for hearing and disposal.

(2.) The learned Counsel for the opposite parties (plaintiffs) has raised two preliminary objections, both of a somewhat unusual character. The first objection is that on 1st June when the petition of revision was presented and received, this High Court was not properly constituted and the Chief Justice, therefore, had no jurisdiction either to receive the petition or to issue a rule on it. The objection is based on the language of Sec. 3, Assam High Court Order, 1948 This section provides that:

(3.) We have carefully considered the argument addressed to us on this point and we think the objection is not sound. There was to be a High Court for this Province from 5th April 1948, the prescribed day. The Calcutta High Court, which formerly was exercising jurisdiction so far as this province was concerned was to cease to have that jurisdiction. The appointment of the Chief Justice was made before the prescribed day, but under the proviso to Sec. 3 it took effect from the prescribed day. The appointment of such other Judges as the Governor-General deemed necessary within the maximum limit was no doubt necessary. But both Sec. 3, Assam High Court Order, 1948 and Sec. 220, Government of India Act, 1935 allow the Governor-General to make other appointments, from time to time. No time limit is placed on the exercise of jurisdiction vested in him in this respect. It cannot be said, therefore, that the Governor-General was under an obligation to appoint Judges at once or at a time that they could function on the prescribed day or on any particular day. He is really the judge of the time when appointments of other Judges may be made. Besides, the possibility that the Governor-General may take some time to make other appointments could not have been overlooked by the Legislature. If the intention had been that the Chief Justice should not exercise the powers which he as Chief Justice or as a single Judge of the High Court could exercise till these appointments were made an express provision to that effect should have appeared in-the section. If the objection raised is accepted, the conclusions would be that the Chief Justice could not act at all till at least the appointment of a second Judge was made This second appointment was made in Aug. 1948. The result would be that the High Court could come into existence only in Aug. though, according to the Assam High Court Order this province was to have a High Court from the prescribed day (5th April). The Calcutta High Court had ceased to exercise jurisdiction from that day. This result could not have been meant. The interpretation placed on the relevant section by the learned Counsel leads to anomalous results. The Legislature could not have intended that the Chief Justice was not to exercise any jurisdiction even as Chief Justice or as a Single Judge till the appointment of other Judges. If this intention is attributed to the Legislature, it would be reading; something into the section that it does not contain.