SURENDRA NATH MAITY Vs. SUSIL KUMAR CHAKRABARTY

JUDGEMENT

(1.) In this case the petitioner who is a pleader of Ghatal brought two suits against the opposite party and others, one being a title suit. In the plaint of this suit he mentioned a certain "raidad" as the foundation of his claim and at a late stage he filed what purported to be a certified copy thereof. It was alleged that this copy was a forgery. The two suits were tried together and dragged on for nearly two years. Eventually the Munsif ordered that the original of this document should be produced and subsequently the petitioner asked to be allowed to withdraw both the suits and permission was given. Thereupon one of the defendants applied for sanction to prosecute the petitioner. Eight months afterwards this application was dismissed for nonprosecution. Then the present opposite party applied for sanction. The Munsif rejected the application remarking that it was belated and that probably there was some ulterior motive behind it. The opposite party appealed to the District Judge at Midnapore. He took the view that such a matter was not an ordinary civil matter between parties but that the notice of the Court had been brought to an offence committed against public justice and that the Court ought to have gone into the merits and decided whether or not a complaint should be made. That the learned Munsif ought not to have allowed the case to be disposed of in a summary manner and ought to have made a complaint or at any rate ought to have held an enquiry. That being so the District Judge after stating that in his opinion there ought to have been a searching enquiry allowed the appeal, restored the application, ordered that it should be decided on its merits and sent the matter back to the Munsif for further enquiry. A rule was issued to show cause why this order of the District Judge should not be set aside.

(2.) The matter comes before us in revision under Section 115, Civil P.C., It has been decided in the case of Emperor V/s. Har Prasad Das [19l3] 40 Cal. 477 (Full Bench) that when an order under Section 476, Criminal P.C. is passed by a civil or revenue Court Section 439, Criminal P.C. has no application but that the High Court can exercise its revisional power under Section 115, Civil P.C. By an order made by the Chief Justice this Criminal Bench has been authorized to deal with such matters. Our powers under Section 115, Civil P.C. are strictly limited to those mentioned therein. Substantially we cannot interfere unless the Subordinate Court has exercised a jurisdiction not vested in it or has failed to exercise a jurisdiction so vested in it or to have acted in the exercise of its jurisdiction illegally or with material irregularity.

(3.) The first question raised before us is that upon such an application as this we must be guided by the provisions of the Criminal P.C. Section 476 being contained within that Code. In the case of Hamid Ali V/s. Madhu Sudan Das the learned Judges differed upon this question Chotzner, J., being, of opinion that the Criminal Procedure Code applied and Duval, J., being of opinion that the Civil Procedure Code applied. In the case of Nasaruddin Khan V/s. Emperor which was decided by C. C. Ghose and Duval, JJ., it was decided that the Civil Procedure Code applied; and in the case of Mahendra Nath Das V/s. Emperor , Suhrawardy, J. agreed with the latter view. Personally I also agree with this view and think that all such applications under Secs.476, 476-A and 476-B originating in civil Courts must be dealt with according to the provisions of the Civil Procedure Code. If that Code is applicable it is clear that there is ample power under Order 41 thereof, to enable the District Judge to make the order for further enquiry which he made in this case.