SHIVA PRASAD Vs. PAHLAD SINGH

JUDGEMENT

(1.) This is an application in revision from orders passed by the First Subordinate Judge of Meerut. After deciding a civil suit the Munsif had made a complaint against the defendant in respect of suspected forgery committed by him and as also certain false statements made in the course of the suit, but had refused to make any complaint against the witnesses for the defendant. The defendant appealed to the District Judge in respect of the complaint made against him and the plaintiff filed appeals to that Court against the witnesses against whom no complaint had been made. The learned District Judge transferred all these appeals to the Court of the First Subordinate Judge to dispose of them. He declined to make any complaint against the witnesses and also directed the withdrawal of the complaint against the defendant. In revision the plaintiff-applicant prays that the orders be set aside as having passed without jurisdiction. No doubt inasmuch as the proceeding has arisen out of a suit decided by a Munsif, it is a matter of a civil nature and Section 439, Criminal P.C. would not be applicable, but, Section 115, Civil P.C. only applies: See In the matter of Bhup Kunwr (1904) 26 All. 249 and Salig Ram V/s. Ramji Lal (1906) 28 All. 554. The Subordinate Judge has entertained the appeals filed in the Court, of the District Judge which were transferred to his Court and has certainly disposed of them finally and they are no longer pending in his Court. There can be no doubt that there is a case decided by him within the meaning of Section 115, Civil P.C. It is contended on behalf of the respondent that, the District Judge had jurisdiction under Section 24, Civil P.C. to transfer these cases to the Court of the Subordinate Judge. But it is quite obvious that even if Section 24, Civil P.C. was applicable, the District Judge could not transfer these cases to the Sub-Judge unless the latter was competent to try or dispose of the same. There has been some conflict of opinion in this Court as to whether a Subordinate Judge is competent to dispose of such matter on appeal or not. The cases of Narain Das V/s. Emperor 1921 All. 211 and Narain Das V/s. Emperor 1927 All. 555 are both distinguishable inasmuch as there the appeal had been transferred to the Court of the Additional District Judge and not to a Subordinate Judge. Section 8, Sub-section (2), Bengal, Agra and Assam Civil Courts Act (Act 12 of 1887) might well have been applied to such a case, because under that section, Additional Judges can discharge any of the functions of a District Judge which the District Judge may assign to them and when discharging such functions they exercise the same powers as the District Judge. The word "function" is wide enough to include the hearing of appeals under Section 476B.

(2.) As regards the transfer to a Subordinate Judge, there is, the case of Karim Ullah V/s. Rameshower Prasad 1929 All. 774 decided by Mukerji, J., in which it was distinctly held that a District Judge is competent to transfer to a Subordinate Judge an appeal from "an order" passed by a Munsif under Section 476, Criminal P.C. In that case it was taken for granted that the proceeding in the Munsif's Court terminated is "an order." It does not appear to have been argued before the learned Judge that the proceedings did not terminate in "an order" within the meaning of Section 22, Bengal, Agra and Assam Civil Courts Act. The case relied upon as authority, namely, Narain Das V/s. Emperor 1927 All. 555 was, as already pointed out distinguishable. On the other hand, it has been held in the case of Manphool V/s. Budhu 1935 All. 440 by one of us that it is not open to a District Judge in whose Court an appeal under Section 476B, Criminal P.C. is pending to transfer that appeal to the Court of a Subordinate Judge as the Subordinate Judge has not got jurisdiction to hear such an appeal. Similarly Bajpai, J., Has held in the case of Mehdi Hasan V/s. Emperor 1935 All. 212 that the District Judge has no jurisdiction under the Criminal Procedure Code to transfer such an appeal to the Subordinate Judge.

(3.) The main question for consideration, is whether a Subordinate Judge has such jurisdiction under Section 22, Sub-section (1), Bengal, Agra and Assam Civil Courts Act. The sub-section provides that a District Judge may transfer to any Subordinate Judge under his administrative capacity any appeals pending before him from the decrees or orders of Munsifs. It is there-fane quite obvious that unless the proceeding in the Court of the Munsif terminated in "an order" within the meaning of this sub-section, the Subordinate Judge would not have any jurisdiction to hear the appeal. The word "order" has not been defined in the Act, but it occurs just after the word, "decrees" and an indication as to what it connotes can to some extent be gathered from the definition of "order" in Section 2, Sub-section (14), Civil P.C. by way of analogy, According to that definition an order means the formal expression of any decision of a civil Court which is not a decree. Now Section 476, Criminal P.C. does not anywhere say that the Munsif in making the complaint has to pass an order to that effect. It requires the civil Court to make a complaint in writing signed by the presiding officer of the Court and to forward the same to a Magistrate having jurisdiction. Section 476 which permits an appeal to be preferred by the aggrieved party does not say that the appeal is from any "order" passed by the original Court. Again the appellate Court is not required to make any "order" on appeal, but has authority either to make complaint itself or to direct the withdrawal of the complaint as the case may be. One may in a loose way call, it an order but strictly speaking it is not so.