MOHAMED YUSUF Vs. ABDUL MAJID

JUDGEMENT

(1.) This is a petition under the provisions of Section 115, Civil P. C, in respect of a decree of the Presidency Small Cause Courts, the main ground being that the Court has erred in law. I gave oral judgment on 29 April 1937, but subsequently recalled that judgment and heard further arguments on points of law. A preliminary point was raised that Section 115 does not apply to the Presidency Small Cause Courts. Section 8, Civil P.C., provides inter alia that save as provided in certain Sections, and by the Presidency Small Cause Courts Act, the provisions in the body of the Code shall not extend to any suit or proceeding in the Court of Small Causes in Calcutta, provided that the High Court, subject to certain conditions, may extend any of such provisions to the Small Cause Court. Section 115 is not included in those Sections, and its provisions have not been so extended. Section 6, Presidency Small Cause Courts Act, provides as follows: The Small Cause Court shall be deemed to be a Court subject to the superintendence of the High Court of Judicature at Fort William, Madras or Bombay, as the case may be, within the meaning of the Letters Patent, respectively, dated 28 day of December 1865, for such High Courts, and within the meaning of the Civil P. C. and to be a Court subordinate to the High Court within the meaning of Section 6, Legal Practitioners Act, 1879, and the High Court shall have in respect of the Small Cause Court the same powers as it has under the 24 and 25 of Victoria, Chap. 104, Section 15 in respect of Courts subject to its appellate jurisdiction.

(2.) The 24 and 25 of Victoria, Chapter 104, Section 15, provided that each of the High Courts should have superintendence over all Courts which might be subject to its appellate jurisdiction and should have certain administrative powers therein specified. This Section was replaced by Section 107, Government of India (Consolidating) Act of 1915. Both these Secs.were interpreted as giving powers of judicial superintendence as well as of administrative superintendence to High Courts, and Clause 15, Letters Patent of the Calcutta High Court (1865), which provides for certain appeals, expressly excludes therefrom orders made in the exercise of revisional jurisdiction and sentences or orders passed or made in the exercise of the power of superintendence under the provisions of Section 107, Government of India Act, or in the exercise of criminal jurisdiction. Section 107 however has been replaced by Section 224, Government of India Act (1935), the provisions of which are described in the marginal note as having reference to "administrative functions of High Court." The result, if the marginal note is to be read as part of the Section, is that the powers of judicial superintendence of High Courts can no longer be said to be derived from these Acts or Sections.

(3.) The Legal Practitioners Act is irrelevant so far as the point in issue is concerned. There remains therefore to be considered the effect of the references in Section 6, Presidency Small Cause Courts Act, to the Letters Patent and the Civil Procedure Code. The only mention of " superintendence " in the Code is in Section 122, and this merely refers to Civil Courts subject to superintendence and confers no power of judicial superintendence. Section 115 deals only with revision, which is not the same thing as "superintendence. " We are left therefore with the Letters Patent, and though they contain several references to Courts "subject to its superintendence," such as in Clauses 13 and 16, they do not define or describe such Courts, nor do they confer upon the High Court any such powers of judicial superintendence. The reason for this omission will be found discussed in Clause 4 of the Despatch from the Rt. Hon ble Sir Charles Wood, Secretary of State for India, to His Excellency the Rt. Hon ble the Governor-General of India in Council (Judicial), No. 24 dated India Office, London, 14 May 1862. This Despatch is reproduced in Mulla's Civil Procedure Code, Edn. 10, at pp. 1322 to 1330, namely that it was unnecessary because all hitherto existing powers of the Supreme Court and the Court of Sudder Diwany Adawlut, except so far as otherwise directed by the Charter, were vested in the High Court by Section 9 of the 24 and 25 of Victoria, Chap. 104. Clause 4 reads as follows: It abolishes, in the first place (as soon as the charter shall issue), the Supreme Court and the Court of Sudder Dewany Adawlut. It vests in the High Court (by the last provision of Section 9) the powers and authorities of those Courts respectively except so far as the Crown may by such charter otherwise direct. And (by the first part of the same Section) it invests the High Court with such Civil, Criminal, Admiralty, Vice-Admiralty, Testamentary, Intestate and Matrimonial Jurisdiction, and all such powers and authority in relation to the administration of justice in the Presidency, as the same charter may confer. With respect therefore to the fusion of the Supreme and Sudder Courts, it appears obvious that the Act itself speaks and that to assume and effect the same purpose by affirmative declaration in the charter would be superfluous. It has been, consequently deemed unnecessary that the charter should exhibit on the face of it an explicit statement of the powers and jurisdiction to be possessed by the new Court in consequence of the fusion as would have been the proper course if these powers and jurisdiction had been entirely new. Recourse has been had in some places in lieu of such explicit statement to reference to statutory provisions, and in others, to the charter of the Supreme Court when the object of clearness appeared to require it. But wherever the charter does not otherwise specify, the High Court will use powers and administer the jurisprudence appertaining to those Courts respectively to whose authority it now succeeds.