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Synopsis

The Supreme Court has said that the institution of a suit under Section 92 of the Civil Procedure Code before the principal district judge, and its transfer thereafter to the additional district judge due to an administrative exigency, cannot be faulted.

A bench of Justices M M Sundresh and Rajesh Bindal expressed disagreement with the law laid down by the Himachal Pradesh High Court in the impugned order regarding the interpretation of Section 92 of the CPC vis-à-vis Sections 6, 9, and 17 of the HP Courts Act.

"There is no need for a notification by the State Government empowering the additional district judge under Section 92 of the CPC, as we are concerned with an administrative decision taken by the principal district judge, before whom the suit was instituted," the bench said.

Dealing with an appeal filed by the Himalayan Brahmo Samaj Mandir Trust Shimla and others, the court examined whether the institution of a suit under Section 92 of the Code of Civil Procedure, 1908, before the principal district judge, and its transfer thereafter to the additional district judge due to an administrative exigency, would comply with the said provision.

The appellants filed an application under Section 92 read with Section 151 of the CPC, seeking leave to file a suit for declaration and permanent prohibitory injunction. The said application was filed before the principal district judge, Shimla. Due to an administrative exigency, it was transferred to the additional district judge-II, Shimla. Leave was granted by the ADJ thereafter. This was challenged by the defendants before the high court in a revision petition, which was disposed of with liberty to file an appropriate application seeking revocation of the leave granted. This was accordingly done.

Upon hearing the parties, the application was rejected by the ADJ, and this was not challenged by the defendants thereafter. An order of interim injunction had also been sought and granted. At that stage, the defendants filed an application invoking Order VII Rule 11 of the CPC. While hearing this application, the issue of jurisdiction was raised by the ADJ and decided against the appellants, finding that an additional district judge has no jurisdiction to entertain and try a suit under Section 92 of the CPC.

Accordingly, the case file was directed to be sent to the court of the district judge. The district judge then sent the case file back to the court of the ADJ, finding that the appropriate course would have been for the ADJ to send a request/reference to the high court, rather than sending the case file to the court of the district judge.

Both these orders were challenged before the high court, which, by the impugned order, found the leave granted by the ADJ to be bad in law, set aside the order, and ordered the suit to be transferred to the docket of the district judge for fresh adjudication of the application under Section 92 of the CPC.

Aggrieved by this, the appellants filed the instant petition. The appellants’ counsel submitted that the issue regarding jurisdiction had attained finality by the dismissal of the application seeking revocation of leave. In any case, Section 6 read with Sections 9 and 17 of the Himachal Pradesh Courts Act, 1976, facilitated the principal district judge in transferring cases to the additional district judge. On the facts, the present suit was instituted before the principal district judge.

Under Section 92 of the CPC, and pari materia provisions of the HP Courts Act, the power to transfer a suit under Section 92 of the CPC is available to the principal district judge, the counsel said.

The counsel appearing for the respondents submitted that the question of jurisdiction can be raised at any stage. Admittedly, there was no notification issued by the State Government empowering the additional district judge under Section 92 of the CPC, and therefore, no interference in the impugned order was required.

Upon hearing the counsel, the bench said, "We are inclined to set aside the impugned order, both on facts and on law."

Admittedly, the court pointed out that the suit had been instituted before the principal district judge, who had the jurisdiction to entertain the same. On the administrative side, the said court transferred the suit to the ADJ. The application of the defendants seeking revocation of leave was rejected, and the same had attained finality.

"Even otherwise, we are not in agreement with the law laid down by the high court in the impugned order, on the interpretation of Section 92 of the CPC vis-à-vis Sections 6, 9, and 17 of the HP Courts Act. There is no need for a notification by the State Government empowering the additional district judge under Section 92 of the CPC, as we are concerned with an administrative decision taken by the principal district judge, before whom the suit was instituted," the bench said.

The court further noted it was also not dealing with a case where the matter had been relegated to a court other than a district court.

"Section 6 read with Sections 9 and 17 of the HP Courts Act clearly gives jurisdiction to the principal district judge to transfer a case. Section 2(b) of the HP Courts Act also defines a district judge to include an additional district judge. Thus, the impugned order cannot be sustained in the eyes of law," the court held.

The court set aside the impugned order and consequently directed the matter to proceed with by the additional district judge.

The bench clarified that it was needless to state that the grant of leave and the consequential order of injunction would stand restored, and the suit should proceed from that stage.

Allowing the appeal, the court also set aside the orders of the ADJ and the district judge, of November 02, 2019, and November 28, 2019, respectively. However, the pending application under Order VII Rule 11 of the CPC should be decided on its own merits, except on the question of law decided in this appeal, the bench said.

Case Title: Himalayan Brahmo Samaj Mandir Trust & Ors Vs Bindya Kuller & Ors