- (1.) THIS if an appeal against the order of Shri Onkar Nath. Sub Judge 1st Class, Kai-thal, dated 25-1-1956, holding that he had no jurisdiction to entertain the suit in question and returning the plaint for presentation to a proper Court. The facts as alleged in the plaint are as under. A firm styled as Messrs. Beliram-Satnarain carried, on business of timber merchants some time before the partition of the country in 1947. The partners of the said firm were us below : Sat Narain plaintiff to the extent of one-half; Hari Ram defendant to the extent of one-fourth; and Kundan son of Hussaini to the extent of one-fourth. Kundan son of Hussaini was a muslim and was murdered in India on 12-10-47 and the post mortem of his body was made at Kaithal on 14-10-1947. The aforesaid partnership dissolved on account of the death of Kundan; and on accounts being gone into, a sum of Rs. 500/11/- was found due to the deceased and was deposited by the plaintiff in the treasury on 12-7-1949. The firm was later, assessed to income-tax and was required to pay Rs. 4712/3/- and one-fourth of the same, i. e. , Rs. 1,178/-/9 was due to the firm from Kundan. On 11-6-1951 the Custodian recovered from the plaintiff a sum of Rs. 3,795 as the calculated profits falling to the share of Kundan in the aforesaid partnership. The plaintiff was not given any opportunity to prove that the aforesaid sum was not due as profits to Kundan and the custodian by becoming a Judge in his own cause arrived at the aforesaid imaginary figure and with a view to realise the same proceeded to attach the plaintiff's property. The plaintiff brought the present suit against the Custodian on the aforesaid allegations for the recovery of a sum of rs. 5,750/- detailed below : rs. 3,795/- illegally recovered from him by the Custodian; rs. 1,178/-/9 one-fourth share of income-tax levied against the firm; and rs. 776/15/3 interest on the aforesaid amount. Plaintiff claimed that he was entitled to recover the aforesaid sum and that Hari Ram partner had no right or interest in the same. Hari Ram was made a party to the suit, but he did not contest the same.
(2.) THE Custodian filed a written statement urging inter alia that the civil Court had no jurisdiction to entertain the suit. This objection was given effect to by the trial Court which returned the plaint for presentation to a Court having jurisdiction in the matter. It was found that section 46 of the Administration of Evacuee Property Act barred the jurisdiction of the civil court and the matter in question could only be determined by the Custodian, Aggrieved against the aforesaid order the plaintiff has come up to this Court in first appeal and the only point that falls for decision in the same is whether a civil court has jurisdiction to entertain the suit. Section 46 of the Administration of Evacuee Property Act reads as under -- "46. Jurisdiction of Civil Courts barred in certain matters.-- Save as otherwise expressly provided in this Act, no Civil or Revenue Court shall have jurisdiction - (a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or (b) * * * * * (c) to question the legality of any action taken by the Custodian-General or the Custodian under the Act; or d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine. " Obviously the provisions of clause (a) are not attracted to the facts of this case because of the reason that the civil Court is not asked in the present suit to determine whether or not any particular property is an evacuee property. The learned counsel for the, Custodian relies only on clauses (c) and (d) of the section as barring the jurisdiction of the civil Court.
(3.) NOW clause (c) of Section 46 bars the jurisdiction of the civil Court only to the extent that a civil Court is not entitled to question the legality of any action taken by the Custodian-General or the Custodian under the Act. In order to attract the applicability of this clause it must be shown that the Custodian-General ox the Custodian have taken an action under the Act and the suit in question aims at impugning the legality of that action. The words "under the Act" are of great significance and can only be interpreted to mean "as sanctioned or authorised by the Act''. If the custodian-General or Custodian take an action which is not sanctioned or authorised by the Act, but which they merely purport to take as one under the Act, the civil Court is perfectly entitled to question the legality of the same. A civil Court can certainly examine whether the action of the Custodian-General or the custodian, the legality of which is impugned before the Court, is- one which was sanctioned or authorised by the Act, and if the Court comes to the conclusion that it was authorised, it will have no more jurisdiction in the matter. If, however, the Court comes to the conclusion that the action impugned was not sanctioned or authorised by the Act, it will have every jurisdiction to question the legality of the said action, and the mere fact that the Custodian-General or the custodian have purported to act under the Act would not, in any way, bar the jurisdiction of the court to question the legality of the same.;