Even a subordinate judicial officer inferior to the District Judge can be appointed as a Judge of a High Court-SC (10/03/1992)

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    advtanmoy
    Keymaster

    The High Court Judges are appointed from two sources, members of the Bar and from amongst the persons who have held “judicial office” for not less than ten years. Even a subordinate judicial officer manning a court inferior to the District Judge can be appointed as a Judge of a High Court. The expression “judicial office” in generic sense may include wide variety of offices which are connected with the administration of justice in one way or the other. Under the Criminal Procedure Code, 1973 powers of judicial Magistrate can be conferred on any person who holds or has held any office under the Government. Officers holding various posts under the executive are often vested with the Magisterial powers to meet a particular situation. Did the framers of the Constitution have this type of `offices’ in mind when they provided a source of appointment to the high office of a Judge of High Court from amongst the holders of a “judicial office”. The answer has to be in the negative. We are of the view that holder of “judicial office” under Article 217(2)(a) means the person who exercises only judicial functions, determines causes inter-partes and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold the dignity, integrity and independence of judiciary.”

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    Dinesh #
    Guest

    History of civil service in India from 1858 to 1947 with special reference to Judicial Service in Uttar Pradesh.

    Allahabad High Court

    Chandra Mohan  vs State Of Uttar Pradesh And Ors.
    (1966) IILLJ 832 All

    §

    4. In Banarsi Das v. Uttar Pradesh Government , I had occasion to trace the history of civil service in India from 1858 to 1947 with special reference to Judicial Service In United Provinces or Uttar Pradesh. According to the Government of India Act, 1861, all vacancies in the posts specified in the schedule annexed to the Act had to be filled up from amongst the covenanted civil servants of the Crown in India. The offices mentioned in the schedule to the Act included the posts of Civil and Sessions Judges and Chief Judicial Officers of districts. In the Government of India Act, 1870, It was stated that It was expedient that additional facilities should be given for the employment of natives of India of proved merit and ability in the civil service of Her Majesty in India. On 12 January 1893 the Lieutenant-Governor of North-Western Provinces and Oudh Issued a notification to the effect that four posts of District and Sessions Judges might be filled up from appointments of members belonging to the Provincial Civil Services, Section 98B of the Government of India Act, 1915, dealt with civil services in India. Section 98 of that Act reserved certain offices for members of the Indian Civil Service. By a notification dated 30 March 1922 the Governor-General-in-Council framed rules about recruitment to services. By Rule 2, the Local Government was authorized to appoint a member of the Provincial Civil Service or a legal practitioner to a superior judicial office. Rule 3 stated:

    Notwithstanding anything contained in Rule 2, the Local Government may, within the limit of a number declared under Rule 1, appoint to a superior executive or judicial office any person not having the qualification prescribed for such office by Rule 2 …

    In the resolution dated 30 March 1922, it was observed that the Government of India wanted to watch the experiment of filling certain District and Sessions Judgeships direct from the bar. The Joint Committee on Indian Constitutional Reforms (Session 1933-34) proposed that a recommendation for direct appointment from the bar should be made from among persons nominated by the High Court.

    5. Section 246 of the Government of India Act, 1935, provided for reserved posts. Certain posts were reserved for members of the Indian Civil Service. Section 254 of the Act provided for appointments to the posts of District Judges. Sub-sectiontion (1) of Section 254, Government of India Act, 1935, stated:

    Appointments of persons to be, and the posting and promotion of, District Judges\ in any province shall be made by the Governor of the province, exercising his individual judgment, and the High Court shall be consulted before a recommendation as to the making of any such appointment is submitted to the Governor.

    That provision was similar to the provision in Article 233 of the Constitution of India. By virtue of authority conferred by tine Government of India Act, 1935, the Secretary of State for India framed ” The Reserved Posts (Indian Civil Service) Rules, 1938,” Rule 2 of the 1938 rules stated:

    The posts specified in the schedule to these rules (hereinafter referred to as ‘reserved poets’) shall be filled either by members of the Indian Civil Service, or by persons, not members of the Indian Civil Service, appointed in accordance with the provisions of these rules.

    Rule 4 laid down that a member of the Provincial Judicial Service or a legal practitioner could be appointed to a Judicial post. The posts mentioned in the schedule to the 1938 rules included 29 posts of District and Sessions Judges in the United Provinces. The India (Provisional Constitution) Order, 1947, deleted Section 246 of the Government of India Act. 1932. By this time recruitment to the Indian Civil Service ceased. It, therefore, became necessary to make alternative arrangements for making appointments to posts of District Judges.

    6. Chapter VI of Part VI of the Constitution of India deals with subordinate Courts. This chapter contains five articles (Articles 233 to 237). Article 233 provides for appointment of District Judges. Article 234 provides for recruitment of parsons other than District Judges to the Judicial Service. Article 236 deals with control over subordinate Courts. Article 236 contains interpretation of the two expressions, “District Judge” and “Judicial Service. 1′ Article 237 provides for application of the provisions of this chapter to certain classes of Magistrates.

    7. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Uttar Pradesh framed in 1953 the Uttar Pradesh Higher Judicial Service Rules. Part III of the rules deals with recruitment. Sources for recruitment are mentioned In Rule 5. According to 01. (1) of Rule 5, recruitment shall be made to the posts of Civil and Sessions Judges by promotion from members of the Uttar Pradesh Civil Service (Judicial Branch), and by direct recruitment after consultation with the High Court. Clause (2) of Rule 5 states:

    Persons eligible for direct recruitment under Sub-clause (ii) of Clause (1) of this rule shall be-

    (a) barristers, advocates, vakils or pleaders of more than seven years standing;

    (b) Judicial Officers, as defined in Uttar Pradesh Government’s notification…dated 14 October 1950, who may be eligible for applying for recruitment to the service in accordance with such rules as may be prescribed by the Governor in this behalf from time to time.

    The rules framed under Sub-clause (b) of Clause (2) of Rule 5 are to be found in appendix B. Rule 2 of appendix B states:

    He should have put in a minimum of seven years’ total service in posts of Judicial Magistrates, Revenue Officers’ or Judicial Officers or in posts deemed to be equivalent thereto by the Governor for this purpose.

    The combined effect of Rule 5 of Uttar Pradesh Higher Judicial Service Rules and Rule 2 of appendix B is that Judicial Magistrates with a standing of seven years are eligible for appointment to the posts of Civil and Sessions Judges. Sri Jagdish Swarup, appearing for two petitioners, contended that Sub-clause (b) of Clause (2) of Rule 5 of Uttar Pradesh Higher Judicial Service Rules is ultra vires the Constitution of India.

    8. In State of West Bengal v. N. N. Bagchi (1965) 2 S.C.A. 884, it was held that disciplinary control over District Judges and Judicial Officers subordinate to District Judges including the power to institute enquiries Into their conduct is vested in the High Court. The Executive Government has no authority to institute any such enquiry. The question before the Supreme Court in that case was whether the State Government or the High Court was competent to hold an enquiry against a District Judge. That matter is contained in Article 235 of the Constitution. N. N. Bagchi case (1965) 2 S.O.A. 884 (vide supra,) is of little assistance in understanding the true scope of Article 233.

    9. As already mentioned, Article 233 of the Constitution of India provides for appointment of District Judges. Article 233 state:

    (1) Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State In consultation wits the High Court exercising jurisdiction In relation to such State.

    (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he had been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.

    10. In the present case we have to consider the eligibility of Judicial Magistrates for such appointments. Judicial Magistrates are already in the service of the State. Their case does not fall under Clause (2) of Article 233. We have to consider whether they are eligible for appointment under 01. (1) of Article 233. It will be seen that, under Clause (1) of Article 233, the Governor has very wide discretion In the matter of appointments of District Judges. The only condition Is that there must be consultation with the High Court. Subject to that condition, the Governor may recruit District Judges from any source. According to Article 237, a person shall not be qualified for appointment as a Judge of a High Court unless he satisfies certain conditions. No such qualifications are laid down in Article 233(1) for appointment of District Judges. Suppose a Sales Tax Officer is a barrister. He practised at the bar for a number of years before Joining service. The State Government and the High Court are both satisfied that the person is suitable for appointment to a post of District Judge. It would be open to the Governor to appoint the Sales Tax Officer as a District Judge under Article 233(1). Sri Jagdish Swarup conceded that, if we confine our attention to Article 233(1), the Governor appears to have unlimited field in the matter of selection of District Judges. But Sri Jagdish Swarup contended that this apparently unlimited power Is limited by other articles in Chap. VI of Fart VI of the Constitution. Reliance was placed on Articles 236 and 237.

    11. Article 236 contains Interpretation of the two expressions, “District Judge” and ” Judicial Service.” The expression “District Judge” Includes a Sessions Judge and an Additional Sessions Judge. A Civil and Sessions Judge is either a Sessions Judge or an Additional Session Judge. So, a Civil and Sessions Judge is a District Judge as defined by Clause (a) of Article 236.

    Clause (b) of Article 236 states:

    The expression ‘ Judicial Service’ means a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge.

    12. Relying on this definition of “Judicial Service,” Sri Jagdish Swarup contended that Judicial Magistrates are not members of Judicial Service so defined. Consequently they are not eligible for appointment as District Judges.

    13. In Shree Hanuman Foundries, Ltd. v. Hem Ranjan Deb and Ors. 1963 1 L.L.J. 683, it was held that a Magistrate did not hold any Judicial office In India. He was not eligible for appointment as a presiding officer of a labour court. That question was governed by Section 7 of the Industrial Disputes Act. Section 7 of Industrial Disputes Act, stated:

    A person shall not be qualified for appointment as the presiding officer of a labour court unless–

    (a) he has held any Judicial office in India for not less than seven years …

    We have seen that no such condition is to be ‘ found In Article 233(1) of the Constitution of India.

    14. The learned Standing Counsel conceded that Judicial Magistrates do not belong to Judicial Service, as defined in Article 236. But it does not follow that they are not eligible for appointment as District Judges under Article 233(1). Article 234 provides for appointments of persons other than District Judges. There can be no objection to the appointment of a Magistrate as a Munsif under Article 234. If a Magistrate with an experience of three months can be appointed a Munsif under Article 234, there should be no serious objection to the appointment of a Judicial Magistrate of seven years’ standing as a District Judge under Article 233(1).

    15. Sri Jagdish Swarup laid some stress on the word ” exclusively” appearing in the definition of “Judicial Service” in Article 236. It was suggested that the word ” exclusively ” was inserted in the interpretation clause In order to make it dear that this service is not open to outsiders, Under Clause (2) of Article 233, a legal practitioner with a standing of seven years can be directly appointed a District Judge. A legal practitioner before such appointment is obviously not a member of a Judicial Service. So, the word ” exclusively ” appearing in Clause (b) of Article 236 of the Constitution of India cannot have the effect of confining recruitment to persons, who are already members of the Judicial Service. We must remember that Article 236 Is an Interpretation clause. An Interpretation clause should not be construed as a provision limiting the wide powers conferred on the Governor in the matter of recruitment of of District Judges under Article 233(1).

    16. Article 237 enables the Governor to apply provisions of Chap. VI to certain classes of Magistrates. Article 237 states:

    The Governor may, by public notification, direct that the foregoing provisions of this chapter and any rules made thereunder shall, with effect from such date as may be fixed by him in that behalf, apply In relation to any class or classes of Magistrates in the State as they apply in relation to persons appointed to the Judicial service of the State subject to such exceptions and modifications as may be specified In the notification.

    17. It has been urged for the petitioners that Magistrates cannot be appointed District Judges unless the Governor issues a notification under Article 237.

    18. Articles 209A to 209E of the draft Constitution correspond to Articles 233 to 237 of the Constitution of India. Dr. Ambedkar’s speech with reference to Articles 209A to 209E of the draft Constitution is to be found in the Constituent Assembly Debates, Vol. IX, on pp. 1570 and 1571. With reference to Article 209E of the draft Constitution (corresponding to Article 237 of the Constitution of India), Dr. Ambedkar said:

    The Drafting Committee would have been very happy if it was in a position to recommend to the House that Immediately on the commencement of the Constitution, provisions with regard to the appointment and control of the Civil Judiciary by the High Court were also made applicable to the magistracy. But it has been realized, and It must be realized, that the magistracy is Intimately connected with general system of administration. We hope that the proposals which are now being entertained by some of the provinces to separate the Judiciary from the executive will be accepted by the other provinces so that the provisions of Article 209E would be made applicable to the Magistrate in the same way as we propose to make them applicable to the Civil Judiciary. But some time must be permitted to elapse for the effectuation of the proposals for the separation of the Judiciary and the executive. It has been felt that the best thing is to leave this matter to the Governor to do by public notification as soon as the appropriate changes for the separation of the judiciary and the executive are carried through In any of the provinces.

    19. It is not necessary to discuss the question whether debates in the Constituent Assembly are admissible in evidence for the purpose of interpreting the Constitution of India. Suffice it to Bay that Dr. Ambedkar’s speech brings out the Idea underlying Article 237 of the Constitution. Article 50 states :

    The State shall take steps to separate the judiciary from the executive in the public service of the State.

    20. Steps taken by different States in India for separation of judiciary from executive are not uniform. There is separation pf judicial and executive functions in the State of Madras. Judicial Magistrates In the State of Madras are under the administrative control of the High Court (Law Commission of India, Fourteenth Report p. 853). The position in Uttar Pradesh is somewhat different.

    21. Although Magistrates are engaged in disposing of judicial business, they are often under the control of executive officers. According to Article 235, District Judges and officers holding civil judicial posts are under the control of the High Court. It is open to the Governor to issue a notification directing that Article 235 shall apply to Magistrates also. On the issue of such a notification, Magistrates would come under the control of the High Court. The subject-matter of Article 237 is conditions of service of Magistrates. That article has nothing to do with appointments of District Judges. It is true that Article 237 appears in Chap. VI of Part VI of the Constitution. But it was possible to insert Article 237 in Part XIV dealing with services under the Union and the States.

    22. In Rameshwar Dayal v. State of Punjab , their lordships of the Supreme Court interpreted Article 233 thus:

    Article 233 is a self-contained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or the State, no special qualifications are laid down, and under Clause (1) the Governor can appoint such a person as a District Judge in consultation with the relevant High Court. As to a person not already In Service, a qualification is laid down in Clause (2), and all that is required is that he should be an advocate or pleader of seven years’ standing.

    23. That passage explains the true scope of Article 233 of the Constitution of India. It may be that the plan adopted in Uttar Pradesh Higher Judicial Service Rules, 1963, is slightly different from the plan of recruitment of District Judges that was In force before 1947. But the slight difference in the two plans does not render Uttar Pradesh Higher Judicial Service Rules invalid. Validity of the rules has to be tested in the light of the provisions of Article 233. Under 01. (1) of Article 233 there is no restriction on the Governor’s power of appointment of District Judges, except that there must be consultation with the High Court. In my opinion, Sub-clause (b) of 01. (2) of Rule 5 of Uttar Pradesh Higher Judicial Service Rules, 1953, is valid; and Judicial Magistrates are eligible for appointment as District Judges. This is the position whether the Governor has issued a notification under Article 237 or not. My answers to both the questions referred to me are in the affirmative.

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    • This reply was modified 4 days, 8 hours ago by advtanmoy.
    #122191 Reply
    Dinesh #
    Guest

    History and Growth of Subordinate Judiciary

    Mr. P.N. Parashar, H.J.S.

    2023-01-27

    §

    During the days of Hindu & Muslim rulers the administration of justice was done according to the Dharma or the code of ethics and there were no set rules for the recruitment and working of the courts, though the system worked well. There were King’s Courts and popular courts also. In the beginning the East India Company had no judicial powers. However, on request from the Company in 1661, the British Crown authorized the Governor and Council in each factory to judge all person living within the jurisdiction of the company. But the position of judicial administration was uncertain and confusing and the judicial power remained concentrated in Governor and the Council.

    After assuming direct management of Diwani in 1772, Warren Hastings organized civil judiciary for the provinces. Indians were kept at the lowest level and were excluded from the administration of criminal justice. They were allowed a share in civil judicial administration only. Zamindars, who were empowered to decide cases on civil side, were to decide cases up to amount of Rs. 10/- only. By Reg. NO. XL of 1793 Munsifs were empowered to decide cases of the amount up to Rs. 50/-. In 1803, Sadar Amins were appointed and they were given pecuniary jurisdiction up to Rs. 100/-. By Reg. No. V of 1831, the pecuniary jurisdiction of Munsif extended up to Rs. 300/- and that of Sadar Amin from Rs. 1,000/- to 5,000/-. Under the system of 1793, no remuneration was given to Munsifs and semi-officials like Tehsildars and Sejawals were employed on the post of Munsifs.

    By the Charter of 1726, corporations were created in three presidency towns and Mayors courts were established for deciding civil disputes. The criminal cases were tried by Justices of Peace on the pattern of England. These Courts started drawing authority from the Crown instead of from the Company.

    The institution of District Judge was created in 1780. They were called the Superintendents of Diwani Adalats. The District Judge was to be the Civil Judge for his realm and was responsible for administration of justice to every one who lived in his area. He was to control and supervise the conduct of all other subordinate agencies of judicial administration in his jurisdiction. By Reg. No. III of 1793, the District Judges were empowered to take cognizance of civil suits of any nature. Till 1807, no specific rules were made for regulating the qualification of District Judicial Officers.

    For the first time Government of India framed rules for the recruitment of Munsifs on 4.8.1840. However, these rules could not be implemented due to practical difficulties and ultimately on 19.4.1885 by circular no. 4 final rules for the examination of candidates for the office of Munsif and Pleader in Bengal Presidency were promulgated. The rules regulating the recruitment, jurisdiction and other matters differed in the three Presidencies of Bengal, Madras and Calcutta.

    Till 1861, there existed a dual system of administration of justice. The Crowns courts functioned in the Presidency Towns and were amenable to the Legislative authority of British Parliament. In Moffussil areas, Companys courts functioned but had no jurisdiction over Europeans. After 1861, steps were taken to amalgamate the two parallel systems and to introduce an uniform system of law.

    By Indian High Courts Act 1861 the Crown was empowered to establish by Letters Patent three High Courts at Madras, Bombay and Fort Williams. Each one of these High Courts consisted of a Chief Justice and not more than 15 Judges of whom not less than one third were members of the Indian Civil Service. In 1866, the fourth High Court was established by Letters Patent at Allahabad. In 1866 a High Court was established in Punjab on the lines of Allahabad and in 1915 at Patna and another at Lahore in 1919.

    Under the Government of India Act 1935, specific provisions were made for the appointment of District Judges and for Subordinate Civil Judicial Service in the State. Section 254 and 255 of the Act regulated such appointments.

    Section 254

    Appointments of persons shall be, and the posting and promotion of District Judges in any province shall be made by the Governor of the province and High Court shall be consulted before recommendation as to the making of any such appointments is submitted to the Government.

    A person already in service of His Majesty shall only be eligible to be appointed a District Judge if he has been for not less than five years a barrister, a member of the faculty fo Advocates in Scotland, or a pleader and is recommended by the High Court for appointment.

    In this and next succeeding section the expression District Judge includes Additional District Judge, Chief Justice of a Small Causes Court, Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge.

    Section 255

    The Governor of each province shall, after consultation with the Provincial Public Service Commission and with the High Court, make rules defining the standard of qualifications to be attained by persons desirous of entering the subordinate Civil Judicial Service of a province.

    In this expression Subordinate Civil Judicial Service means a service consisting exclusively of persons intended to fill Civil Judicial Posts inferior to that of District Judge.

    The Constitution of India

    Under the Constitution of India, appointment of District Judges is regulated by Art. 233 and appointment of sub-ordinate Judges is regulated by Article 234 and 236. The provisions of Government of India Act 1935 have been incorporated in these articles with some modifications.

    Elevation of the District Judge to High Court

    By the year 1915, the Judicial Services of the State subordinate to the Allahabad High Court had fully established its glorious reputation of honesty, integrity and legal acumen of its luminaries. The Government of India Act 1915, laid down the following sources from which the appointment of High Court Judges could be made: –

    a) Barristers with one-third reservation for them.

    b) I.C.S. District Judges, with one-third reservation for them and

    c) Vakils of High Courts of not less than 10 years standing or Civil Judges of not less than 5 years standing.

    When the Oudh Chief Court was constituted under the Oudh Courts Act, it was provided in the enactment that at least one out of the total number of five Judges shall be from the members of the Judicial Service of the State and at least two shall be the members of the Indian Civil Service who have worked as District Judges for at least three years.

    The Government of India Act, 1935 did away with the system of reservation. But the sources from which High Court Judges could be appointed continued to remain the same as contemplated by the Government of India Act 1915. In the absence of reservation, number of the Judges on the High Court Bench drawn from the State Judicial Service rose from 2 in the year 1935 to 7 in the year 1954.

    Under the Constitution of India, there is no reservation of any category as was done in the past. Article 217 deals with the appointment of a Judge of High Court. Clause (2) of Article 217 provides as follows: –

    2. A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and

    a) Has for at least ten years held a judicial office in the territory of India; or

    b) Has for at least ten years been an Advocate of a High Court or of two or more such Courts in succession.

    Past Achievements of the Services

    The subordinate judiciary in the State of U.P. has earned a great name. Its achievements have been recognized and appreciated by the eminent Judges and the high dignitaries. Pt. Jawahar Lal Nehru after his release from Jail in the year 1942 spoke very highly about independence of judiciary and appreciated independent working of the subordinate courts.

    Chief Justice Grimwood Mears, inaugurating the fourth session of the U.P. Judicial Officers Association 1924, acknowledged on behalf of the High Courts, the ability displayed by the subordinate judiciary and of the esteem in which the Judges of the High Court held the members of the subordinate judiciary. Chief Justice Sir Shah Mohammad Sulaiman, a few years later, said that the Provincial Judicial Service can take pride in the fact that those of its members who came up to the High Court have proved to be brilliant Judges of great experience, learning and ability.

    The provincial service has produced eminent and distinguished Judges, who for years adorned the Bench with luster and commanded respect for their clear thinking, lucid expression and sound judgment.

    Sir Tej Bahadur Sapru, as member of the Executive Council of Viceroy, in the Civil Justice Committee report, said about the subordinate Judge having reached a high standard of efficiency. The subordinate judiciary in Uttar Pradesh has produced eminent Judges of High Court whose names continue to be remembered with profound respect till date.

    It is a matter of historic significance that Justice Mahmood who was the first Indian to be elevated to the Bench of the Allahabad High Court was a Service Judge. He was appointed as District Judge Grade III in 1879 and remained as District Judge, Rae-Bareli. One of the cases decided by him went up to the Privy Council and their lordships were greatly impressed by the scholarly, through and excellently written judgment and they wrote to the Secretary of State for India that his abilities should not be wasted in the District Court. Accordingly he was given an officiating chance on the High Court Bench in 1882 and he remained a High Court Judge till 1892 with some gaps. He is remembered for his judicial independence and for enunciating principles of natural justice.

    The second Indian to be elevated to the Bench of Allahabad High Court was also a Service Judge, Sir Promoda Charan Banerji. He was appointed as a Munsif in 1872 and from there rose to the High Court in 1893, where he sat for 30 years i.e. up to 1923. He was one of the ablest Judges of the High Court and was an All India Authority on Law of Mortgage and Hindu Law.

    Sir Lal Gopal Mukherji was another Service Judge and after officiating as an Additional Judge he was made permanent Judge in High Court in 1926. He was also appointed the Chief Justice in 1932. He was endowed with an enobling personality and his patience on the Bench was admirable.

    In the recent times, the names of Hon. Mr. Justice A.P. Srivastava, Hon. Mr. Justice Brij Mohan Lal, Hon. Mr. Justice J.M.L. Sinha, Hon. Mr. Justice K.N. Goel, Hon. Mr. Justice B.D. Agarwal and Hon. Mr. Justice Jagmohan Lal are well known. Such Judges of the Service are known for their learning, high intellect and wide knowledge. They have adorned the high offices and have contributed a lot in the annals of judicial history.

    Some of the Service Judges have adorned the august office of Judge of Supreme Court. Hon. Mr. Justice Palekar, Hon. Mr. Justice Singhal were the earlier Judges of the Supreme Court who belonged to the subordinate judiciary. At present, Honble Mr. Justice Ahmedi and Honble Justice Fatima Bibi in the Supreme Court of India are the Judges who originally hail from the State Judicial Services.

    Source : The State Judiciary by Mr. P.N. Parashar, H.J.S.

    High Court, Allahabad

     

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    #122192 Reply
    Dinesh #
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    Karnataka Judiciary in 1750

    §

    Under Hyder Ali and Tippu Sultan, administration of Justice was mainly a local concern. Revenue Officers also acted as Judges. It was the duty of the Amils to investigate serious criminal cases and report to higher authorities for decision. There was a Sadar (Chief) Court at the Capital for administering justice in accordance with Mohammadan Law. Qazis in important towns decided matters concerning succession, inheritance and other matters as per the provisions of Mohammadan Law.

    During the regime of Diwan Poornaiah and thereafter, due regard was paid to age old institutions and doctrines of Hindu Law. Matters were usually determined according to earlier precedents and practices. Administration of civil justice was conducted in a manner analogous to that of criminal justice. Separate Department of Justice was constituted at Mysore. It consisted of two Bakshis as Judges, two Sheristedars, six respectable persons who constituted a Standing Panchayet, with one Qazi and one Pandit. In this Court, both civil and criminal cases were heard. Matters relating to caste or community were referred for decision to Pandit or Qazi, as the case may be, who were aided by Panchayet. In taluks also, the disputes were settled through the Panchayet either nominated by the parties or constituted by the Taluk authorities. When life or liberty of a prisoner was involved, the case was fixed for final hearing before the Diwan who pronounced his decision in consultation with the Resident. Death penalty was inflicted only in cases of murder or plunder. Theft or robbery was punished with imprisonment and hard labour in pRoportion to the nature of crimes. In cases where traditional laws and customs were not applicable, the courts were to act according to the justice, equity and good conscience.

    In the beginning of the 18th century, after the Maharaja assumed the reins of the Government, he established a new Sadar Court presided over by two Bakshis to decide civil suits of the value of more than Rs.â500/-. Below the Sadar Court, there were three inferior courts, each presided over by two Presidents called Hakims. The two inferior courts were empowered to decide ivil suits, one court upto the value of Rs. 100/- and another court from Rs. 100/- to Rs. 500/-. The third inferior court had exclusive powers to try criminal cases, such as assault, robbery and minor offences and submit proceedings to the Bakshis of the Sadar Court to impose punishment. In respect of heinous crimes, the Bakshis would submit a report to His Highness the Maharaja and get his orders for awarding sentence.

    In 1834, the entire State was divided into four divisions viz., Bangalore, Nagar, Chitaldurg and Ashtagram. Each division was represented by an European Officer designated as the Superintendent. He was vested with judicial powers in addition to his duties of collection of revenue.

    During the period from 1831-1855 there were 5 grades of Courts for administration of Justice in the State. They were :

    (i) Amildar of the Taluk ;

    (ii) Principal Sadr Munsiff;

    (iii) Superintendent;

    (iv) Judges of the Huzur Adalat;

    (v) The commissioner.

    At the Taluka level, Amildar decided civil disputes in respect of the suits upto the value of Rs. 100/-. He was empowered to decide suits upto the value of Rs. 500/- with the assistance of Panchayet. He was also vested with powers to try criminal cases and impose fine upto Rs. 7/- and imprisonment for 14 days. He was the head of the Police force.

    The Principal Sadr Munsiff was the Court of the original jurisdiction, as well as, the Court of Appeal. He had original jurisdiction to decide suits involving landed property of the value above Rs. 100/- and not exceeding Rs. 1,000/- and other suits of the value upto Rs. 5,000/-. He was the final Court of Appeal in respect of all the suits except the suits involving landed property. He had also jurisdiction to try criminal cases and impose fine upto Rs. 15/- and pass sentence of imprisonment for 2 years.

    The superintendent was also the Court of original jurisdiction in respect of suits involving landed property of the value above Rs. 1,000/- and other suits of the value above Rs. 5,000/-. All the appeals from the lower Courts would lie to the Court of the Superintendent. He was exercising powers as Criminal Court to impose sentence upto 7 years imprisonment and a fine of Rs. 30/-.

    Huzur Adalat comprised of three Indian Judges. It had no original jurisdiction to decide civil suits. It was a Court of Appeal from the decision of the subordinate native courts. Whenever the Commissioner presided in person to hear Civil appeals, the judges of the Adalat acted as assessors. In criminal cases, the Huzur Adalat and the Commissioner had unlimited powers to impose any sentence of imprisonment and fine. But, the decision of the Adalat was subject to revision by the Commissioner. All sentences of death had to be submitted to the Government of India for confirmation.

    The Commissioner was the Court of Appeal to decide all appeals from the decisions of the Superintendent and Huzur Adalat.

    Panchayet System was widely recognized. Suits were decided with assistance of Panchayet in the Courts of the Amildar, Sadr Munsiff and Superintendent. Five most respectable and intelligent inhabitants who were nominated by the court and competent to perform the duties of the Panchayetdars were permitted to sit in open court with all the facilities to follow the proceedings. Except in cases of glaring injustice, gross impartiality or corruption, it was not deemed advisable to set aside the opinion of the majority of Panchayet.

    In 1856, a Judicial Commissioner was appointed to assist the Commissioner. Deputy Superintendents who were subordinate to the Superintendents of the Divisions were appointed. They were empowered to adjudicate civil suit of unlimited pecuniary jurisdiction with a provision of appeal to the Courts of Superintendents.

    Under the revised Constitution of Mysore Administration , Huzur Adalat and Sadr Munsiff Court were abolished. Small Causes Courts were established.

    During 1862-63 the following Courts were in existence :

    (i) Judicial Commissioner exercising powers of the Chief Court with Criminal and Civil Jurisdiction over the whole State;

    (ii) Superintendents of Divisions;

    (iii) Deputy Superintendents of Districts;

    (iv) Judges of Small Causes Courts;

    (v) European Assistant Superintendents;

    (vi) Amildars of Taluks.

    During 1862-63, the Superintendents of Divisions were vested with powers of Sessions Judges. Judicial Commissioner was vested with powers of Sadr Court. All sentences of death passed in Sessions Cases were forwarded for confirmation to the Court of the Judicial Commissioner which was a court of final reference, revision and of appeal in all judicial proceedings.

    In 1869, revised Rules of Civil Procedure was introduced and Asst. Superintendents were relieved of the Civil work and in their places, Judicial Assistants were appointed.

    In 1872, Criminal Procedure Code (Act X of 1872) was introduced in Mysore.

    In 1874-75, Munsiffs with jurisdiction to decide civil suits were appointed in the place of Amildars.

    In 1876, the following Courts were existing :

    (a).Judicial Commissioner,

    (b)Commissioners,

    (c) Deputy Commissioners,

    (d) Small Causes Court,

    (e) Judicial Assistants,

    (f) Munsiffs.

    In 1879, Judicial Administration was completely bifurcated from revenue administration except in the case of the Deputy Commissioner who continued to be the District Magistrate. Courts of the District Judges with unlimited original jurisdiction, as well as, pecuniary jurisdiction were established. Judicial Assistants were replaced by Sub-Judges. The District Judge was also the appellate authority to hear appeals from the decisions of the Sub-Judges.

    In 1880, the following civil courts were in existence to administer justice:

    (a) Court of the Chief Judge, Mysore;

    (b) Courts of the District Judges;

    (c) Bangalore Court of Small Causes;

    (d) Subordinate Judges’ Courts;

    (e) Munsiffs’ Courts.

    However, the Bangalore Small Causes Court was abolished in 1881.

    The Chief Court of Mysore was reconstituted with three Judges under the Mysore Chief Court Regulation I of 1884. This Court was the highest Court of Appeal, Reference and Revision in the territories of Mysore and had powers of superintendence and control over all other Courts in the State.

    In 1887, the system of trial by jury was introduced in Sessions cases. Under the Chief Court, there were District Courts, Subordinate Judges’ Courts and Munsiffs’ Courts on the Civil side and Court of Sessions, District Magistrate and Magistrates of First, Second and Third Class, on the criminal side.

    Below the Munsiffs’ Courts, village Courts were established.

    In 1880, Munsiffs were invested with the powers of Taluka Magistrates. However, Amildars still retained their magisterial powers.

    In 1881, administration of Criminal justice was presided over by the Chief Judge. His Court exercised powers of the High Court as described in the Civil and Criminal Procedure Code.

    In 1895, three District Courts, one in Bangalore with jurisdiction over the Districts of Bangalore, Kolar and Tumkur, one in Mysore with jurisdiction over the Districts of Mysore and Hassan and one in Shimoga with jurisdiction over the Districts of Shimoga, Kadur and Chitaldurg were established. These Courts exercised civil jurisdiction within its territorial limits. The pecuniary jurisdiction of the District Courts was upto the value of Rs. 10,000/-. They had exclusive jurisdiction over the cases in respect of Probate, Administration, Land Acquisition and minors’ estates.

    Three Subordinate Judges Courts, one in Bangalore, one in Mysore and one in Shimoga having territorial jurisdiction co-terminus with those of their respective District Courts were established. These courts exercised pecuniary jurisdiction above Rs. 2,500/- but not exceeding Rs. 10,000/- in value with effect from 1-4-1899. These courts also exercised Small Causes jurisdiction in respect of money suits above Rs. 50/- but not exceeding Rs. 100/- in value. The Subordinate Judges of Mysore and Shimoga were also authorised to hear appeals from the decisions of the Munsiffs, which were transferred to them by the respective District Judges.

    The courts of Munsiffs exercised original jurisdiction in respect of suits of the value upto Rs. 2,500/- and had been invested with powers of the Courts of the Small Causes in respect of money suits not exceeding Rs. 50/- in value.

    By Village Courts Regulation VII of 1913, Village Courts presided over by Village Munsiffs were established. The structure of these courts was chiefly based on the Madras Village Courts Act I of 1889. These Village Courts exercised exclusive jurisdiction in respect of certain classes of suits upto the pecuniary limit of Rs. 20/-. However, these courts decided suits upto the value of Rs. 200/-, if both the parties gave their consent in writing.

    Honorary Magistrates were appointed in Bangalore and Mysore in 1909-10.

    During the years 1911-13, three permanent Sessions Courts were established at Bangalore, Mysore and Shimoga. There were three Assistant Sessions Judges in Bangalore, Mysore and Shimoga to try Sessions cases transferred to them by the respective Sessions Judges.

    Trial of Sessions cases was usually conducted with the aid of assessors.

    Sessions trial by jury system was introduced in Bangalore and Mysore in 1917 and the same system was extended to the Districts of Kolar and Tumkur in 1922.

    Practice of holding Circuit Sessions was prevailing.

    There were District Magistrates in each District to hear appeals also.

    In May 1918, a scheme for providing separate agency for the disposal of original criminal work was sanctioned. According to it, there were three grades of Special Magistrates. The first grade Magistrates were the First Class Magistrates and they exercised appellate powers. The second grade Magistrates exercised powers of the II Class Magistrates. In special cases, they were invested with the powers of the First Class Magistrates and also the appellate powers. The third grade Magistrates generally exercised Second Class Magisterial powers. Bench of Magistrates was constituted in places wherever possible for the trial of second and third class cases.

    The Asst. Commissioners, Amildars and Deputy Amildars continued to be Ex-Officio Magistrates. They exercised only the powers of executive Magistrates as referred to under Chapters VIII to XI of the Criminal Procedure Code.

    During 1915-16, sanction was given for the constitution of Bench of Magistrates at Tumkur, Chickmagalur, Hassan and Chitaldurg. In 1923-24, such Courts were established in all the Districts.

    In 1919, a scheme for the separation of judicial functions from the executive was introduced. Under this scheme, revenue officers were divested of judicial functions and separate Magistracy was constituted.

    A Stationery Magistrate of the rank of Munsiff was appointed for every two or three taluks for disposing of second and third class cases and a Magistrate of the status of Subordinate Judge was appointed for district head-quarters for trying first class cases. These special magistrates formed a separate branch of judicial service. Deputy Commissioner continued to have powers of District Magistrates.

    Administration and control over all the Magistrates’ Courts in the district had been vested in the District Magistrate who was also the Deputy Commissioner till June 1, 1956. From that date separation of Judiciary from executive was brought into force and the Magistrates’ Courts, came under the control of the Judicial District Magistrate who also exercised general administration and supervision over them. Civil Judges were being appointed as Judicial District Magistrates by the State Government. The scheme of separation of judiciary from executive when it was introduced in 1956 was designed within the then existing framework of the Criminal Procedure Code.

    Source: Karnataka High Court

    • This reply was modified 4 days, 9 hours ago by advtanmoy.
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    Extent of jurisdiction of Munsif

    Sec 19 of Bengal, Agra And Assam Civil Courts Act- 1887

    – (1) Save as aforesaid, and subject to the provisions of sub-section (2), the jurisdiction of a Munsif extends to all like suits of which the value does not exceed one thousand rupees.

    (2) The State Government may, on the recommendation of the High Court, direct, by notification in the Official Gazette, with respect to any Munsif named therein, that his jurisdiction shall extend to all like suits of such value not exceeding two thousand rupees as may be specified in the notification:

    Provided that the State Government may, by notification in the Official Gazette, delegate to the High Court its powers under this section.

    “Whether a Munsif while acting under the provisions of Section 7-E of the U. P. Control of Rent and Eviction Act acts as a mere persona designata or as a Court, and whether a revision against an order passed under Section 7-E of the Act is maintainable?”

    AIR 1943 Cal 247:

    “Difficulties do arise however when the expression used is not ‘Court but ‘Judge’ and in such cases one has got to look the entire provision for the purpose of determining whether the matter is to be heard by the Judicial Officer as a Court or in his own personal capacity.”

    The words ‘Court and Judge are sometimes used as interchangeable terms and often when the word ‘Judge is employed, it is the ‘Court’ which is meant. This legislative practice finds expression not only in this country but in others as well In the United States, the prevailing law has been succinctly stated in 14 Am. Jur.. Courts, Section 4 in the following terras:

    “While there is a well defined and generally recognised distinction between a judge and a judicial tribunal and while it takes more than a presiding officer to constitute a Court, yet the judge of a Court while presiding over it is by common courtesy called “the Court”, and the words ‘Court and ‘Judge’ are frequently used in the statutes of the various states as synonymous and convertible terms. Such terms are not, however, strictly synonymous and the Judge alone does not necessarily constitute a Court, for while the Judge is an indispensable part, he is only a part of the Court. Whether an act is to be performed by the one or the other is generally to be determined by the character of the act, rather than by such designation. Whenever the power or duty imposed is Found from a consideration of the object and purposes of the act to be one which is more properly the function of the Court, it will be so construed; and whenever it is manifest that the legislature meant the Judge, and not the Court, that meaning will be applied to the words in order so carry out the Legislative intent. ‘Court’ will always be construed to mean ‘Judge’ and ‘Judge’ mean ‘Court’, wherever either construction is necessary to carry into effect the obvious intent of the legislature.”

    1. These principles are also well recognised in India and the decision of the question will depend, as Khosla, J., stated in Pitman’s Shorthand Academy v B. Lila Ram and Sons, AIR 1950 EP 181 (FB) upon the nature of the duties entrusted to the judicial officer, upon what are his powers and what the procedure he must follow, and whether when discharging these special duties, he act? in every way a Court of law would act.
    2. See also Baburao Prahlad v. Hariharnath Kashinathrao, AIR 1939 Bom 279.
    • This reply was modified 4 days, 8 hours ago by advtanmoy.
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    Jurisdiction under the   Bengal,   Agra   and   Assam   Civil   Courts Act, 1887

    The   Bengal,   Agra   and   Assam   Civil   Courts Act, 1887 was enacted to consolidate and amend the law relating   to   Civil   Courts   in   Bengal,   the   North­-Western Provinces and Assam.   Section 3 of the Act provides for Constitution   of   Civil   Courts.   Section   4   relates   to number   of   District   Judges,   Subordinate   Judges   and Munsifs.     Section   17  dealt   with   continuance   of proceeding   of   Courts  ceasing   to   have   jurisdiction. Section 18 dealt with extent of original jurisdiction of District   or   Subordinate   Judge   (for   the   State   of   Uttar Pradesh, the word “Subordinate” was substituted with the word   “Civil”).     Section   19   dealt   with   extent   of jurisdiction of Munsif.  Section 19 as applicable in the State of Uttar Pradesh was substituted by U.P. Act No. 17 of 1991 was to the following effect:­

    “19(1) Save as aforesaid, and subject to the provisions of sub­section(2), the jurisdiction of a Munsif extends to all like suits of which the value does not exceed ten thousand rupees. (2)  The High Court may direct by notification in the official Gazette, with respect to any munsif   named   therein,   that   his   jurisdiction shall exceed to all like suits of such value not  exceeding twenty  five thousand  rupees as may be specified in the notification.

    • This reply was modified 4 days, 7 hours ago by advtanmoy.
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    Cognizance means “jurisdiction” or “the exercise of jurisdiction” or “power to try and determine causes”.

    Court in  (2004) 2 SCC 349, State of Himachal Pradesh   vs. M.P.Gupta,  had   occasion   to   consider   the expression   ‘Cognizance’. The  definition  of  word ‘Cognizance’   as   given   in  Black’s  Law Dictionary was quoted with approval.

    In paragraph 10 of the judgment, following was stated: ­

    “10……According   to   Black’s   Law   Dictionary   the word   “cognizance”   means   “jurisdiction” or “the   exercise   of   jurisdiction”   or  “power   to try   and   determine   causes”.   In   common parlance, it means taking notice of. A court, therefore,  is   precluded   from   entertaining   a complaint   or   taking   notice   of   it   or exercising   jurisdiction   if   it   is   in   respect of   a   public   servant   who   is   accused  of   an offence alleged to have been committed during discharge of his official duty.

    42. The   statutory   provisions   of   Section   15(2)   of Provincial   Small  Cause  Courts   Act,   1887   uses   the expression   “shall   be  cognizable   by   the   Court   of   Small Causes”. The word ‘Cognizable’ is a word of wide import. It takes into its fold institution, hearing and decision of   a   case   cognizable  by   it.   In  Pankaj  Hotels   Case, learned   Single   Judge   of   the   High   Court   had   noted   the statement of objects of U.P. Civil Laws (Amendment) Act, 2015   and   has   given   emphasis   on   word   “for  institution” and   concluded   that   amendment  is  prospective   in   nature and   is   applicable   only   to   suits   and   appeals   being instituted after the amendment. When the plain word in the   statute   i.e.  Section   15(2)  uses   the   word “cognizable” whether “statements of objects and reasons” which   uses   the   word   “institution”   shall   whittle   down, the   word   ‘cognizable’   as   used   in   Section   15(2).  

    • This reply was modified 4 days, 7 hours ago by advtanmoy.
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    Plaintiff cannot invoke the jurisdiction of a court by either grossly over valuing or grossly under-valuing a suit

    Nandita Bose v. Rattan Lal Nahata AIR 1987 SC 1947, the Supreme Court held as under :-

    It is also true that the plaintiff cannot invoke the jurisdiction of a court by either grossly over valuing or grossly under-valuing a suit. The Court always has the jurisdiction to prevent the abuse of the process of law. Under Rule 10 of Order 7 of the Code the plaint can be returned at any stage of the suit for presentation to the court in which the suit should have been instituted. The question for consideration in this case is whether in the present case the plaint has been grossly overvalued with the object of bringing it within the jurisdiction of the High Court.

    11. The above decision of the Supreme Court thus indicates that abuse of process of law could be a very relevant consideration for the Court while determining such questions. There are no such compelling circumstances or special equities in favor of the plaintiffs which would require the Court to allow the prayer of the applicant which is not in consonance with the statutory provisions. The reliance placed by the applicant on another judgment of this Court in the case of Shriram Pistons & Rings Ltd. v. Mrs. Manju Awasthy , again is of no help and consequences, in as much as there the suit was ordered to be transferred from the Court of competent jurisdiction i.e. Civil Judge to the court of Additional District Judge, and in the peculiar facts and circumstances of the case the court formed an opinion that challenge on the ground of loss of right of appeal by itself, alone, would not constitute a ground for declining the order of transfer as it was otherwise a case fully satisfying the ingredients of Section 24 of the Code of Civil Procedure.

    12. In the case of Raja Soap Factory and Ors. v. S.P. Shantharaj and Ors. AIR 1965 Supreme Court 1449, the Supreme Court while referring to principles controlling ordinary original jurisdiction of the Court and the power of the court to direct transfer of cases held as under:-

    Section 24 of the Code of Civil Procedure on which counsel for the plaintiffs relied lends no assistance to his argument. Among the powers conferred upon a High Court by Section 24 Code of Civil Procedure, there is enumerated the power to withdraw any suit, appeal or other proceeding in any Court subordinate to it, and to try or dispose of the same: [Section 24(1)(b)(i)]. But jurisdiction to try a suit, appeal or proceeding by a High Court under the power reserved by Section 24(1)(b)(i) arises only if the suit, appeal or proceeding is properly instituted in a Court subordinate to the High Court, and the suit appeal or proceeding is in exercise of the power of the High Court transferred to it. Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a subordinate Court of competent jurisdiction, and transfer thereof to the High Court. Power to try and dispose of a proceeding after transfer from a Court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court.

    Section 151 of the Code of Civil Procedure preserves the inherent power of the Court as may be necessary for the ends of justice or to prevent abuse of the process of the Court. That power may be exercised where there is a proceeding lawfully before the High Court: it does not, however, authorise the High Court to invest itself with jurisdiction where is not conferred by law.

    Reliance was sought to be placed upon the summary of a judgment dated June 6, 1962 in a case decided by Narayana Pal, J. : Kaverappa v. Narayanaswamy, which is found printed under the heading “Short Notes of Recent Decisions” in 1962-40 Mys LJ (SN)1. The learned Judge is reported to have observed that Section 24 of the Code of Civil Procedure “read along with Section 151 which preserves to the High Court all inherent powers to make such orders as may be necessary for ends of justice necessarily implies that whenever an extraordinary situation so requires, a High Court may confer original jurisdiction upon itself to do or protect ends of justice”. It does not appear that the judgment is reported in any series of reports – authorised or unauthorised-, and we have not been supplied with a copy of the original judgment. But if the learned Judge, as reported in the summary of the judgment, was of the opinion that the High Court is competent to assume to itself jurisdiction which it does not otherwise possess, merely because an “extraordinary situation” has arisen, with respect to the learned Judge, we are unable to approve of that view. By “jurisdiction” is meant the extent of the power which is conferred upon the court by its constitution to try a proceeding; its exercise cannot be enlarged because what the learned Judge calls an extraordinary situation “requires” the Court to exercise it.

     

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    Objection in regard to jurisdiction may be taken at any stage.

    Supreme Court of India

    Mantoo Sarkar vs Oriental Insurance Co.Ltd.& Ors

    Dated- 16 December, 2008

    18. We, however, while taking that factor into consideration must place on record that we are not oblivious of the fact that a decision rendered without jurisdiction would be coram non juris. Objection in regard to jurisdiction may be taken at any stage. ( See Chief Engineer, Hydel Project v. Ravinder Nath , [ (2008) 2 SCC 350 ] ) wherein inter alia the decision of this Court in Kiran Singh v. Chaman Paswan, [AIR 1954 SC 340] was followed, stating:

    “26. The Court also relied upon the decision in Kiran Singh v. Chaman Pawan [AIR 1954 SC 340] and quoted (in Harshad Chiman Lal case {[(2005) 7 SCC 791], SCC pp. 804-805, para 33} therefrom: {Kiran Singh case (supra), AIR p.342, para6 `6. …It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, …strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.”

    Though in the aforementioned decision these observations were made since the defendants before raising the objection to the territorial jurisdiction had admitted that the court had the jurisdiction, the force of this decision cannot be ignored and it has to be held that such a decree would continue to be a nullity.”

    19. A distinction, however, must be made between a jurisdiction with regard to subject matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not be. It is not a case where the Tribunal had no jurisdiction in relation to the subject matter of claim. As a matter of fact the civil court had no jurisdiction to entertain the suit. If the Tribunal had the jurisdiction to entertain a claim petition under the Motor Vehicles Act, in our opinion, the Court should not have, in absence of any finding of sufferance of any prejudice on the part of the first respondent, entertained the appeal.

    In Bikash Bhushan Ghosh v. Novartis India Ltd., [ (2007) 5 SCC 591], this Court has held :

    “17. There is another aspect of the matter which cannot be lost sight of. If the provisions contained in the Code of Civil Procedure are given effect to, even if the Third Industrial Tribunal, West Bengal had no jurisdiction, in view of the provisions contained in Section 21 of the Code of Civil Procedure, unless the respondent suffered any prejudice, they could not have questioned the jurisdiction of the court. In Kiran Singh v. Chaman Paswan this Court held: (AIR p. 342, paras 6-7) 6. ... If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr wascoram non judice’ and that its judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position.

    • This reply was modified 4 days, 7 hours ago by advtanmoy.
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    “Cause of action” means the circumstances forming the infraction of the right or the immediate occasion for the reaction.

    Supreme Court in Om Prakash Srivastava v. Union of India and Another [(2006) 6 SCC 207] wherein it was held;

    “12. The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense “cause of action” means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with he right itself. Compendiously, as noted above, the expression means very fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in “cause of action”. (See Rajasthan High Court Advocates’ Assn. v. Union of India [(2001) 2 SCC 294] )

    13. The expression “cause of action” has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit ( See Gurdit Singh v. Munsha Singh [(1977) 1 SCC 791] )

    14. The expression “cause of action” is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person (see Black’s Law Dictionary). In Stroud’s Judicial Dictionary a “cause of action” is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.) the meaning attributed to the phrase “cause of action” in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra [(2000) 7 SCC 640 : 2001 SCC (Cri) 215]”

     

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