TYAGI, J. - (1.) BULIDAN Singh has filed this petition under Arts. 226 and 227 of the Constitution of India and it arises out of the following circumstances: Two children Kanhaiyalal and Sushila, who were sleeping on their cots near Sanischarji Ka Mandir, Sardarpura, Jodhpur, were hit by the truck No. RJQ, 2513 which was being driven by respondent Mayaram and this accident caused instantaneous death of Kanhaiya Lal and Sushila. Petitioner BULIDAN Singh, the guardian of the deceased, instituted a suit in forma pauperis against respondents in the court of Senior Civil Judge No. 1, Jodhpur for a claim of Rs. 90 500/ as compensation for the death of Kanhaiyalal and Sushila. The suit was filed on October 26, 1960 The suit was contested by the defendants respondents. During the pendency of the suit, the State Government by a notification issued in the Official Gazette constituted under sec. 110 of the Motor Vehicles Act la Tribunal tor the area of Jodhpur to entertain the claims for compensation arising out of motor accidents. Thereafter, a plea was raised by the defendants-respondents that the civil court was not competent to proceed with the suit as the jurisdiction of that court was barred by sec. 110f of the Motor Vehicles Act. This objection prevailed with the learned Senior Civil Judge who by his order dated 24th of November, 1965 returned the plaint to the plaintiff-petitioner to be presented before the Tribunal constituted under sec. 110 of the Motor Vehicles Act. The petitioner then presented his claim before the Tribunal. The Tribunal by its order dated 6th November, 1967, held that for those claims for which a suit had already been filed in a civil court before the constitution of the Tribunal, the juris-diction of the civil court was not barred under sec. 110f of the Motor Vehicles Act and, therefore, such a claim could not be entertained and adjudicated upon by the Tribunal. In this view of the matter, the Tribunal returned the application along with the plaint for presenting the same to the proper court. The petitioner found himself placed in a very queer position because of these two contradictory orders and therefore he moved this Court under Arts. 226 and 227 of the constitution praying that by issuing a writ of certiorari the orders passed by the Tribunal and the civil court be quashed and the learned Senior Civil Judge may be directed to entertain his suit and decide it in accordance with law.
(2.) MR. Ganpat Singh has appeared on behalf of respondent Mayaram driver and MR. B. L. Maheshwari has filed his authority on behalf of respondent Premier Insurance Co. Ltd. , Kankaria Building, Jodhpur. Contention of the petitioner is that the suit was filed much before the Tribunal was constituted and therefore the only forum which was available to the plaintiff to claim compensation was the civil court. It was also contended that the subsequent constitution of a Tribunal under sec. 110 of the Motor Vehicles Act cannot divest the civil court of its jurisdiction to dispose of the suit which was already filed in the court. Learned counsel appearing on behalf of the opposite parties, on the contrary, submitted that after the constitution of the Tribunal, civil court, which has been debarred from entertaining any claim arising out of motor accidents under sec. 110f of the Motor Vehicles Act, cannot proceed with the suit. These facts, therefore, raise a controversy whether the jurisdiction of a civil court is totally barred by virtue of sec 110f of the Motor Vehicles Act, 1939 in respect of the suits already pending before it prior to the constitution of the Tribunal under sec. 110 of the Motor Vehicles Act. It will be convenient to refer to certain relevant provisions of the Motor Vehicles Act regarding the jurisdiction of the Tribunal constituted under sec. 110 of the Motor Vehicles Act. Sec. A (1) provides that an application for compensation in respect of claims mentioned in sec. 110 may be made to the Tribunal constituted under the Act for the area in which the accident occurred by the person sustaining the injury or by the representatives of the deceased where death has resulted from the accident. Sub-clause (3) of of this section lays down that no application for compensation shall be entertained unless it is made within 60 days of the occurrence of the accident. Proviso to this sub-section, however, enables the Tribunal to entertain the claim even after the expiry of the period mentioned therein if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. Sec 1 10b to sec. 110e provide for the award of compensation by the Tribunal, its powers and the procedure to be followed and for appeals against such award. Sec. 110f is an important section which may be reproduced here verbatim. "110f. Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court. " Before the provisions of sec. 110a to sec. 110f were introduced in the Motor Vehicles Act, the Indian Fatal Accidents Act, 1855 was in force and under the provisions of that Act the legal representatives of a person who met with his death in an accident could file a suit against the wrong-doer for compensation in the ordinary civil court. Art. 21 of the Indian Limitation Act. 1908 provided a period of one year from the date of the death of the person killed for filing such an action in the civil court. These provisions leave no room for doubt that a right to file a suit for compensation for the death of the person killed was already there before the provisions of sec. 110a to 110f were introduced by the legislature in the Motor Vehicles Act, and they did not create any new right or even a new remedy in favour of the claimant for compensation arising out of a motor accident. The right to claim damages by a legal representative of a deceased in respect of an accident where the latter met with his death was actionable in civil court under the preexisting law. The effect of the new provision, therefore, is to create a new forum which takes away the jurisdiction of the ordinary civil court to entertain a suit in respect of the claims arising out of motor accidents because the Legislature was keen to see the expeditious disposal of such claims by creating Tribunal under the Motor Vehicles Act. A plain reading of the provisions of the Motor Vehicles Act referred to above makes two things very clear: (1) that sec. 110f which takes away the jurisdiction of the civil court was never intended to be retrospective so as to affect the jurisdiction of the civil court in respect of suits or actions which it had enter tained before the Tribunal was constituted, under sec. 110 (1) and (3) that sub-clause (3) of sec. 110a postulates the existence of a Tribunal before a claim was filed by the legal representative of the deceased as it provides for a time limit for filing of an application for compensation as well as for condoning the delay in the presentation thereof. These two points throw sufficient light on the real intention of the Legislature when it created a bar of jurisdiction of the civil court enacted in sec. 110f and, as I understand it, this provision has been enacted by the Legislature only for those claims that had not already been entertained by the civil court before the Tribunal was constituted under the Motor Vehicles Act. The language of that section that "no civil court shall have jurisdiction to entertain any question" can, therefore, be interpreted to mean that the civil court cannot after the constitution of the Tribunal under the Motor Vehicles Act take cognizance of a suit or other proceeding in respect of a claim arising out of motor accidents. If before the constitution of the Tribunal, the civil court had already entertained a suit or a proceeding in respect of such claim, then there is no express provision in the Motor Vehicles Act which debars the civil court to take cognizance of such a claim. This point was thoroughly considered by the Bombay High Court in Manibai and another v. Raj Kumar Harpal Deo and another (1 ). In that case, the claim had been instituted before the civil court prior to the constitution of the Tribunal under sec. 110 (1) of the Motor Vehicles Act. Their Lordships, after considering the provisions of the Motor Vehicles Act, observed as follows: "the language, moreover, of sec 110-F also does not lead to an inference that the legislature intended to exclude the jurisdiction of the Civil Court in pending matters. The words used in S. 110-F are that 'no Civil Court shall have jurisdiction to entertain. . . . . . . . . 'to entertain means to 'receive and determine'. It is a prohibition applicable in future. It does not even by implication prohibit the continuance of a proceeding already commenced in a Civil Court, but only prohibits the reception and determination by the Court, of any cause or matter after the constitution of the Tribunal. " The Madhya Pradesh High Court has also taken the same view in Khatumal Ghanshamdas V. Abdul Qadir Jamaluddin and others (2) and Kumari Sushma Mehta v. Central Provinces Transport Services Ltd. and others (3 ). Dixit C. J. observed that "the use of the word entertain" is significant. That word means to receive and take into consideration. " The plain meaning of the expression "no civil court shall have jurisdiction to entertain" is that no civil court shall have jurisdiction to entertain a suit in its inception. Sec. 110f does not use the word"maintain" or continue" and does not say that no civil Court shall have jurisdiction to maintain or continue with any question relating to any claim for compensation. " According to learned Chief Justice what sec. 110 F prohibits the Civil Court from doing after the constitution of a Claims Tribunal is the entertainment of a claim at the very inception and not the taking into consideration of any claim already made before it. He, therefore, concluded that sec. 110-F had no applicability whatsoever to the claims pending in civil Courts at the time of the constitution of the Claims Tribunal. The words in sec. 110 F "no action shall be entertained", in my opinion, indicate that the intention of the Legislature was that the Act should not be retrospective in operation. While construing a statute, the Court should always bear in mind that unless it is a statute dealing with procedure only, it shall not be construed to have retrospective operation unless it so provides either expressly or by necessary implication or intendment. Further a statute should not be construed to have greater retrospective operation than its language renders necessary. Where a statute deprives a person of his vested right to sue or affects the power or jurisdiction of a Court in enforcing the existing law, then its retrospective character must be clearly expressed by the Legislature and if it is not done so then it should be taken prospective in nature. In the present case, the suit was instituted on 26th of October, 1960 and the Tribunal was constituted after about four years, that is, on 25th of April, 1964. The plaintiff-petitioner could not have waited for the constitution of a Tribunal by the State Government under the provisions of the Motor Vehicles Act to file his claim only after the Tribunal was constituted. The plaintiff had a vested right to file his claim before the civil court under the provisions of the Indian Fatal Accidents Act and if a suit was filed by the plaintiff then it was incumbent for the civil court to take cognizance of the suit as it undoubtedly had jurisdiction to do so. It could not be expected of a civil court to keep the plaint in cold storage in the expectation that one day the claims tribunal under the Motor Vehicles Act will be created and then it would be divested of its jurisdiction to take further proceedings in the suit. In my opinion, the civil court had a jurisdiction at the time when the suit was filed before it because no Tribunal was till then constituted by the State Government, and when once the jurisdiction which was vested in the court, was exercised by it, it cannot be divested of that jurisdiction unless there was an express provision of the law to deprive it of that jurisdiction. As stated above, I do not find any express or even implied provision in the Motor Vehicles Act which deprives the civil court of its jurisdiction to proceed with the suit which it had already entertained before the Claims Tribunal was constituted. The view taken by the learned Senior Civil Judge in returning the plaint to the plaintiff is therefore obviously erroneous. . The writ application is, therefore, allowed and the Additional District Judge No. 1, Jodhpur, whose court has now replaced the court of the Senior Civil Judge No. 1 Jodhpur, is hereby directed to proceed with the case from the stage the plaint was returned by the learned Senior Civil Judge to the plaintiff. The petitioner shall get his costs from respondent No. i who had raised this objection before the civil court that it had no jurisdiction to proceed with this suit filed by the petitioner. . ;