VENKATACHALAM CHETTY Vs. RAMASWAMI CHETTY

JUDGEMENT

(1.) The Inspector of Police, Law and Order, Tiruchirapalli Town, apprehending that a breach of the peace is likely to occur between the petitioners and counter-petitioners herein regarding the possession of certain lands and houses belonging to Chetty Chatram Charities applied to the Sub-Divisional Magistrate, Tiruchirapalli, under Section 145, Criminal Procedure Code, for necessary enquiry and action; whereupon the Sub-Divisional Magistrate sent up the records to the District Magistrate, Tiruchirapalli, apparently because of the heavy file in the former's Court. The Additional District Magistrate, Tiruchirapalli, transferred the case to the file of the Additional First Class Magistrate, Tiruchirapalli, for enquiry and disposal. It so happened that the Additional First Class Magistrate had no territorial jurisdiction over some of the properties; but this was not noticed or apparently realised when a preliminary order was passed on 17th July, 1948, under Section 145(1), Criminal Procedure Code. Both the petitioners and the counter-petitioners appeared before the Magistrate and were served with notice and cony of the preliminary order. The petitioners then took objection to the preliminary order on the ground that the Additional First Class Magistrate had no territorial jurisdiction over some of the properties and the matter was adjourned for arguments to 20 July, 1948. Meanwhile the respondents applied to the Additional District Magistrate on 19 July, 1948, praying for the withdrawal of the proceedings before the Additional First Class Magistrate to his own file and this application was granted without notice to the petitioners on 21 July, 1948, by an order passed in the following terms: M.C. No. 33 of 1948 on the file of the Additional First Class Magistrate, Trichy, is hereby withdrawn from that Court and taken on file in this Court. The Additional First Class Magistrate, Trichy, should send the records immediately to this Court. After withdrawing the case to his file, the Additional District Magistrate also passed a preliminary order under Section 145(1) and granted time to the parties to file written statements. It is this order that Mr. V. T. Rangaswami Aiyangar on behalf of the petitioners-B party wants to revise on two grounds : firstly, the Additional District Magistrate had no jurisdiction to withdraw the case from the file of the Additional First Glass Magistrate thereby curing and condoning a defect in the jurisdiction of the Additional First Glass Magistrate and secondly a second preliminary order is illegal and inoperative since the earlier preliminary order passed by the Additional First Glass Magistrate had not been withdrawn or dissolved by the legal processes laid down in Section 145, Criminal Procedure Code.

(2.) That the Additional First Glass Magistrate had jurisdiction only over some of the properties and that Additional District Magistrate has territorial jurisdiction over the entire properties have been conceded by both the parties. Therefore, according to Mr. V.T. Rangaswami Aiyangar the preliminary order of the Additional First Glass Magistrate is operative only as regards some portion of the properties and void as regards the rest. Relying upon the decisions in Chellapathi Naidu V/s. Subba Naidu , Sikka Goundan, In re (1922) 72 I.C. 351, Subbanna, In re and Abdul Sattar Sahib, In re (1942) M.W.N. (Crl.) 187, it is contended that the Additional District Magistrate ought not to have withdrawn the case to his own file. These decisions, no doubt, lay down the general proposition that proceedings instituted in a Court which has no jurisdiction in respect of them cannot be regarded as legally instituted and a superior Court cannot transfer them to a Court having jurisdiction and thereby cure a defect. In Sikka Goundan, In re (1922) 72 I.C. 351 it is further laid down that the High Court in its inherent powers of supervision can direct the Court not to proceed further. In Chellapathi Naidu V/s. Subba Naidu , Reilly, J., observed that the order of a District Magistrate transferring the proceedings to a Sub-Divisional Magistrate who had no jurisdiction over the land concerned was wrong and therefore any order passed by a Sub-Divisional Magistrate to whom such transfer was made was therefore without jurisdiction. Now applying the principle stated above, it is seen that the earlier order of the Additional District Magistrate sending the proceedings to the Additional First Class Magistrate who has territorial jurisdiction over only a portion of the properties is without jurisdiction and the preliminary order with regard to a portion of the properties is therefore illegal. I do not think that there is anything illegal or unjustifiable in the Additional District Magistrate rectifying a mistake. None of the decisions go to this extent that a power of transfer once exercised under Section 528 cannot be any further invoked for the purpose of correcting an inadvertent and unthought of mistake. If the attention of the Additional District Magistrate had been drawn even at the outset to the circumstance that the Additional First Class Magistrate has jurisdiction over a part of the properties only, then, the sending of the case to the Additional First Class Magistrate would not have taken place. The decisions cited above deal only with instances of total absence of jurisdiction and not with partial absence in the matter of territorial powers. I cannot therefore uphold the contention that the Additional District Magistrate should not have withdrawn the case to his own file. Regarding the second argument that there was a valid preliminary order with regard to a portion of the properties which has not been set aside in accordance with law, no authority has been brought to my notice holding that once a preliminary order has been passed, even though it is erroneous in some respects it cannot be amended or confirmed by subsequent legal proceedings. But it is unnecessary to decide that position now for the reason that the withdrawal of the case to the file of the Additional District Magistrate carried with it the earlier preliminary order with regard to some portion of the properties and hence the order of the Additional District Magistrate should be construed as affecting that portion of the properties over which the Additional First Class Magistrate had no power to pass a preliminary order.

(3.) At one stage of his argument Mr. V.T. Rangaswami Aiyangar seemed to suggest that the preliminary order of the Additional District Magistrate is likely to affect his client adversely because if it is shown that his client was in possession within two months of the Additional First Class Magistrate's order but beyond two months of the Additional District Magistrate's order there will be great prejudice caused to him. After all the difference in time between the two orders is only 4 days and even if the B party shows that it was in possession of the properties over which the Additional First Class Magistrate had power within two months of the date of that order, in the view which I am taking that order is partly valid the Magistrate will have to declare his possession of such properties. Such contingency can only arise if Mr. V.T. Rangaswami Aiyangar's client can show that he was dispossessed between 17 May, 1948, and 21 May, 1948, and not at any earlier date. I therefore hold that the preliminary order of the Additional District Magistrate is valid from 21 July, 1948, to the extent of the properties over which Additional First Class Magistrate had no jurisdiction and is also valid from 17th July, 1948, over those properties over which Additional First Class Magistrate had jurisdiction as the subsequent preliminary order of Additional District Magistrate recording the latter properties is only a confirmation of the earlier valid portion of the order of the Additional First Class Magistrate.