BISHAMBHAR NATH Vs. ACHAL SINGH

JUDGEMENT

(1.) A preliminary objection has been taken to the hearing of this application in revision. The order sought to be revised is an order of the District Magistrate of Agra purporting to have been passed by him in exercise of the appellate powers conferred on him by Section 318, Municipalities Act 2 of 1916. The application before me purports to be an application under Section 115, Civil P.C. The revisional jurisdiction conferred on the High Court by that section is limited to cases decided by any Court subordinate to such High Court" and it is argued by the learned Counsel for the opposite party that as the Court for the District Magistrate when dealing with appeals under Section 318, Municipalities Act, is not subordinate to the High Court this Court has no jurisdiction under Section 115, Civil P.C. to revise the orders passed by the District Magistrate under Section 318, Municipalities Act. The learned Counsel for the applicant contends that in view of the fact that by Section 319, Municipalities Act the Court hearing an appeal under Section 318 make a reference only to the High Court and that on such reference the High Court has not only to express its opinion but to decide the matter referred to it the Court hearing an appeal under Section 318 must be deemed to be subordinate to the High Court and in support of this contention he has placed, reliance on the case of Sadeck Abdulla V/s. Mahomed Ahdulla Hasanalli A.I.R. 1929 Bom. 190.

(2.) I am unable to agree with the contention of the learned Counsel for the applicant. That the officer or the District Magistrate hearing an appeal under Section 318 is a Court is put beyond doubt by reference to Section 320 Municipalities Act, and the only question that remains for consideration is whether or not that Court is subordinate to this Court within the meaning of Section 115, Civil P.C. In the determination of this question no assistance can be had from Section 3, Civil P.C. for the simple reason that the enumeration of Subordinate Courts in that section is not exhaustive and there may be Courts not referred to in that section that may be subordinate to this Court. It appears to me however that a Court can based to be subordinate to another Court only if the latter Court has appellate or revisional jurisdiction or power of superinten fence given to it by some statutory provision over the former Court and that the mere authority to decide a reference does not necessarily make the Court making a reference subordinate GO the Court deciding the same. Further, as by Section 115 this Court is given r visional powers only with reference to cases decide by subordinate Courts that section can only have reference to Courts over which this Court has a judicial and not a purely administrative power. Neither appellate nor revisional powers have been conferred on the High Court over the Court of the District Magistrate by the Municipalities Act. On the contrary in is provided by Clause (3), Section 321 of that Act that the order of the appellate Court under Section 318 shall be final. Nor am I aware of any statutory provision conferring on this High Court power of superintendence over Courts hearing appeals under Section 318, Municipalities Act. I therefore hold that the decision sought be revised by this Court is not the decision of any Court Subordinate to this Court and as such the application for revision is incompetent.

(3.) In my judgment the Bombay case relied upon by the learned Counsel for the applicant has no application to the case before me. It was decided in that case that with regard to questions arising in reference to cases to be stated by the Resident at Aden for the decision of the High Court of Judicature at Bombay under S 8, Aden Courts Act (2 of 1864) the Resident's Court is subordinate to that High Court within the meaning of Section 115. Civil P.C. The learned Judges who decided that case relied on the preamble to and on Section 31 of the said Act in support of the conclusion arrived at by them. By the preamble it is provided inter alia that: it is expedient to provide for the superintendence or revision of such judgments and proceedings by the High Court of Bombay and by Section 31 the High Court at Bombay is authorized and empowered to make and issue general rules for regulating the practice and proceedings of the Court of the resident and to frame rules for every proceeding in the said Court etc.