ANADI MOHON GHOSE Vs. RABINDRA NATH DUTTA
LAWS(CAL)-1961-7-11
HIGH COURT OF CALCUTTA
Decided on July 20,1961

ANADI MOHON GHOSE Appellant
VERSUS
RABINDRA NATH DUTTA Respondents

JUDGEMENT

Bachawat, J. - (1.) This second appeal arises out of a suit for ejectment between landlord and tenant The appeal raises questions as to the limits of the power of transfer by the District Court under Section 24 of the Code of Civil Procedure, 1908. The second appeal has been referred by the learned single Judge to the Division Bench for disposal.
(2.) On September 4, 1953 Shri T. M. Mukherji, the First Additional Muinsif, Sealdah decreed the suit. On the 24th November, 1953, the tenant preferred from this decree Title Appeal No. 1176 of 1953 to the Court of the District Judge, 24-Paraganas. On the 24th May, 1954 the District Court transferred the appeal to the Court of Sri Mullinath Mukherjee, an Additional District Judge 2nd Special Court of 24-Paraganas. On the 28th May, 1954, Sri Mullinath Mukherjee allowed the appeal, set aside the decree for ejectment and remanded the suit to the Trial Count for a fresh decision after framing an issue on the question of the minority of the plaintiffs Nos. 4 and 5. On the Ist February, 1950, the High Court on second appeal set aside the judgmet of the lower Appellate Court and passed the following directions. "'(The) case (be) sent back on remand for disposing of the appeal according to the procedure laid down in Order 41 Rule 25. When the records reach the lower Appellate Court it should pass an order according to Order 41 Rule 25 and refer the issues set forth below to the Court of first instance and direct that Court to take additional evidence in regard to those issues. After the trial Court has tried the issues, the additional evidence together with the findings of the trial Court thereon will be returned to the lower appellate Court and then the latter Court will dispose of the appeal according to law." The issues to be so remitted were set out in the order of remand. After receiving the records of the appeal from the High Court, the District Court passed an order dated the 27th March, 1956. transferring the appeal "to the Court of Shri G.S. Chatterjee, 1st Additional District Judge, as Shri M.N. Mukherjee has been transferred from the station." By an order dated the 29th March 1956, Shri G.S. Chatterjee acting under Order 41 Rule 25 C. P. C. remitted the aforesaid issues to the Court of first instance for trial. On the 23rd June, 1958, the Court of the first instance, after faying the issues returned to the appellate Court the evidence together with its findings thereon. By an order dated the 25th June, 1958, the District Court withdrew the appeal to its own file and transferred the same to the Court of Shri Bijayesh Mukherjee, an Additional District Judge designated as the 4th extra. Court 24-Paraganas. On behalf of the tenants it was contended before the Court of Sri Bijoyesh Mukherjee that the District Court was not competent to pass the order of transfer dated the 27th March, 1956, and the 25th June, 1958 and that those orders and the subsequent proceedings are nullities. Sri Bijoyesh Mukherjee repelled this contention and dismissed the appeal. Before us in second appeal the tenants have again pressed that objection. In my opinion the objection is baseless.
(3.) The power of the District Court to transfer a case under Section 24 C. P. C. 1908 is very wide. By Sub-section (3) of Section 24 the Courts of Additional Judges are deemed to be subordinate to the District Court. The Courts of the Additional Judges, Shri Mallinath Mukherjee, Shri G.S. Chatterjee and Sri Bijoyesh Mukherjee, were competent to dispose of the appeal and were subordinate to the District Court Under Sub-section (1) (a) of Section 24 the District Court may at any stage transfer any appeal pending before it for disposal to any Court subordinate to it and competent to dispose of the same. The order dated the 24th May, 1954, transferring the appeal to the Court of Shri Mallinath Mukherjee was therefor lawful. Under Sub-section (1) (b) of Section 24 the District Court may at any stage withdraw any appeal pending in any Court subordinate to it and transfer the same for disposal to any Court subordinate to it and competent to dispose of the same. Prima facie therefore the District Court would withdraw the appeal pending in the Court of Shri Mallinath Mukherjee and transfer the same to the Court of Shri G. S. Chatterjee and could again withdraw the appeal pending in the Court of Shri G.S. Chatterjee and transfer the same for disposal to the Court of Shri Bijoyesh Mukherjee. The order of remand -passed by the High Court and dated the 1st February, 1956, did not limit this power. That order remanded the appeal to "the lower appellate Court'' and directed "the lower appellate court" to pass orders under Order 41 Rule 25 C. P. C. and to dispose of the appeal according to law. The expression "the lower appellate court" in that order means the Court authorised to hear the appeal and includes a Court to which the appeal is subsequently transferred for disposal by an order of the District Court under Section 24 C. P. C. The order of remand passed by the High Court did not specifically direct that the appeal must be disposed of only by the Appellate Court which originally heard the appeal and that the District Court would not be at liberty to transfer the appeal to another Court under Section 24 C. p. C. In the absence of any direction express or implied in the order of remand limiting the power of the District Court under Section 24 C. P. C. to transfer the case, the District Court may in exercise of its powers under that section transfer to another Court a suit remanded to the District Court for re-trial : see Protap Chandra Roy v. Judhister Das, 19 Cal LJ 408 : (AIR 1914 Cal 638), Pandohi v. Sheo Bharos, AIR 1914 All 236 Koya Thangal v. K.K. Ravi Varma, AIR 1944 Mad 569, K. Seshagiri Rao v. K. Somasundaram, AIR 1949 Mad 65 : ILR (1949) Mad 94 as also an appeal remanded by the High Court to the District Court, see Venkatiah v. Chirranna AIR 1915 Mad 446 (2), Rajkali v. Gopi Nath Naik AIR 1922 All 35 : ILR 44 All 211. In Pran Krishna Shaini v. Kunja Behari Das, 9 Cal LJ 572 it was held that the District Judge in exercise of his powers under Section 22 of the Bengal and North Western Provinces Civil Courts Act (XII of 1827) was competent to transfer to a subordinate Judge an appeal which had been originally heard by the District pudge and which had been remanded by the High Court to the lower appellate Court for disposal after re-hearing. There can be no doubt therefore that in spite of the order of remand made by the High Court the District Court was fully competent to pass the order of transfer dated the 27th March, 1956.;


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