Decided on August 22,1994

RUKMANI DEVI Respondents


B.M.Mitra, J. - (1.)THE instant revisional application under Article 227 of the Constitution is directed against the Order No. 12 dated 27.6.94 passed by the learned Additional District Judge, 6th Court, Alipore, dismissing the Civil Revision Case No. 338 of 1993 inter alia holding as non-maintainable. THE learned Assistant District Judge in the impugned order has counter posed a relevant question and the same has been simultaneously asserted by him and the learned District Judge has opined that whenever one Misc. Appeal was disposed of by an Assistant District Judge being equipped with the delegated power of the learned District Judge for the purpose of hearing a particular appeal, the selfsame forum cannot further entertain any application for revision against the order of that particular Misc. Appeal which was admitted by the learned District Judge. It is well-known that powers of an appeal court and the Appeal Court can only be vested with revisional powers. Here in the instant case a proceeding was initiated under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree and against the order passed therein a Misc. appeal was preferred which was admitted by the learned District Judge himself and thereafter the same was transferred for the purpose of disposal by the learned Assistant District Judge. It is significant to mention that Bengal, Agra and Assam Civil Courts Act, 1887 contemplates two types of jurisdiction namely, ordinary jurisdiction under Chapter III and Special Jurisdiction as included in Chapter IV of the said Act. In terms of section 21 included in Chapter III right of appeal has been given to the District Judge. According to the provisions of section 22 included in Chapter IV right of transfer is conferred on the District Judge. THE question of transfer may be conceived of only in between co-ordinate judicial authorities. Here we are concerned not with the administrative control of the District Judge but with the exercise or District Judge and other categories of Judges exercising their judicial powers under the pyramidal structure of judicial hierarchy as contemplated under the Bengal, Agra and Assam Civil Courts Act. A further reference may be made to the provisions of the Constitution of India which can throw some light on the controversy. Chapter VI of Part VI of the Constitution of India relates to the subordinate Courts of the State while Article 233 deals with appointment of District Judges in the State. Article 236 of the Constitution interprets the expression 'District Judge' which includes Judge of a City Civil Court, Additional District Judge, Joint District Judge and Assistant District Judge as well. This interpretation and/or connotation of the expression 'District Judge' as given in Article 236 of the Constitution also indicates that there may not be any subordination as between District Judge and Assistant District Judge when the later discharges its function as a transferee Judge. THE District Judge assumes jurisdiction to admit the Misc. Appeal in exercise of its appellate powers and the disposal of the same after admission may be made by transferee Judge and there the transferee Judge shall include the category of Judges as contemplated in the District level within the purview of Article 236 of the Constitution of India. It is also significant to refer to section 2(1) of the Bengal, Agra and Assam Civil Courts Act which given sanction of right of appeal from a decree or order of an Assistant District Judge as well as of the decree or order of the Munsif. THE question of assumption and exercise of right of appeal by the District Judge will arise only when there is an appeal preferred against the judgment and/or of Assistant District Judge and that cannot be transferred to an Assistant District Judge in any eventuality because in that context under Chapter III the District Judge is functioning as an Appeal Court from the Court of the Assistant District Judge is a Count of ordinary original jurisdiction. THE provision of section 22 have been engratted in Chapter IV under special jurisdiction and there the question of transfer can only arise to a Judge of co-ordinate jurisdiction. Once an Assistant District Judge takes up a matter on transfer being effected by the District Judge after admission of the appeal, then the District Judge as well as the Assistant District Judge can simultaneously discharge the function in respect of the self-same appeal under the provisions of Order 41 of the Code of Civil Procedure. THE right of hearing of admission of an appeal and the right of appeal vest on the self-same authority and where such authority is exercised by the Assistant District Judge in its capacity as transferee Judge, he is sub planted to the pedestal either of a District Judge or of an Additional District Judge who are Courts of co-equal jurisdiction. It is to be borne in mind that there is a categorical line of distinction between the exercise of function of administrative control by the District Judge and co-equal jurisdiction of judicial function by the District Judge and other office bearers of the Court under the classification of the Civil Courts contemplated under section 3 of the aforesaid Bengal, Agra and Assam Civil Courts Act, 1887.
(2.)ACCORDINGLY this Court does not find any error and/or usurpation of jurisdiction by the learned Additional District Judge in passing the impugned order and it has on the contrary restricted itself within the bounds of its parameters of restriction as envisaged under the Bengal, Agra and Assam Civil Courts Act. A reference may be made about Clause 5 of section 115 of the Code of Civil Procedure which also makes it clear that revisional jurisdiction can be exercised by the additional Judge having exercised of all the powers of a District Judge. But in an appeal where an Assistant District Judge has exercised all the powers of a District Judge, the said order is not open to revision before the District Judge. ACCORDINGLY, in my considered view, in the impugned order a proper interpretation has been given and the premise formulated by the learned Additional District Judge requires no further revision particularly under the provisions of exercise of jurisdiction of superintendence by this High Court. ACCORDINGLY, the order challenge is sustained and the revisional application stands hereby rejected in presence of the caveators. There shall, however, be no order as to costs. Application rejected.

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