O.C.J. Suit No. 3049 of 1947. Case: C.P. Bannerjee Vs B.S. Irani. High Court of Bombay (India)
| Case Number | O.C.J. Suit No. 3049 of 1947 |
| Judges | Bhagwati, J. |
| Issue | Code of Civil Procedure |
| Citation | AIR 1949 Bom 182, (1949) 51 BomLR 122 |
| Judgement Date | November 03, 1948 |
| Court | High Court of Bombay (India) |
Judgment:
Bhagwati, J.
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In this matter I had delivered a judgment on October 6, 1948, but, after I did so, my attention was drawn to the fact that the Bombay Legislature had simultaneously with the enactment of Bombay Act XLIV of 1948 also enacted Bombay Act XLI of 1948 called the Bombay High Court Letters Patent Amendment Act, 1948. This necessitated a further "argument and in the result I quashed the judgment which I had dictated on October 6, 1948, and put down the matter for further argument. The matter has been thereafter fully argued before me by Mr. Palkhiwalla appearing for the plaintiff, Mr. M.M. Desai appearing for the defendant and by Mr. B.J. Divan whom I appointed to argue the matter before me per amicus curiae.
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The question that falls to be determined by me in this matter is whether this Court has jurisdiction to further try and determine the suit, having entertained it at a time when according to the law as it then stood it had jurisdiction to entertain the same.
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The plaintiff filed this suit against the defendant on September 12, 1947, to recover a sum of Rs. 1,000 with interest thereon at 6 per cent, per annum from December 20, 1945, or February 13, 1946, as the case may be until judgment, costs and interest on judgment at 4 per cent, per annum till payment. The suit was thus for the recovery of a sum over Rs. 1,000 and below Rs. 2,000. Under Section 21 of the Presidency Small Cause Courts Act as it then stood the plaintiff had the election to institute this suit in the High Court, the amount or the value of the subject-matter thereof exceeding Rs. 1,000, even though under Section 18 of the Act the Small Causes Court would have jurisdiction to try this suit, the amount or value of the subject-matter not having exceeded Rs. 2,000. The plaintiff filed this suit in the High Court in pursuance of this election which was given to him under Section 21 of the Act and the suit was thus rightly received by the High Court and the High Court would in the ordinary course have had jurisdiction to try and dispose of the same, subject of course to the provisions contained in Section 22 of the Presidency Small Causes Courts Act as it then stood, which provided that in case of suits cognizable by the Small Cause Court to which Section 21 applied no costs would be allowed to the plaintiff if the plaintiff obtained a decree for any amount or value of less than Rs. 300, and that the defendant would be entitled to his costs as between attorney and client if the plaintiff did not obtain any decree therein.
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In about May 1948 the Bombay Legislature enacted several enactments which were contemplated to deprive the High Court of jurisdiction to try suits cognizable by the Small Cause Court as well as the Bombay City Civil Court which was then about to be established. The Legislature intended to deprive the High Court of this jurisdiction to receive, try and determine suits between Rs. 1,000 and Rs. 2,000 which could be instituted by the plaintiff at his election in the High Court acting under the provisions of Section 21 of the Presidency Small Cause Courts Act. The Legislature also intended to deprive the High Court of the jurisdiction to receive, try and determine suits not exceeding Rs. 10,000 in value and arising in Greater Bombay which were intended by it to be cognizable by the Bombay City Civil Court when was about to be established. With this end in view the Bombay Legislature enacted Bombay Act XL of 1948 called the Bombay City Civil Court Act, 1948, which established an additional civil Court for the Greater Bombay, constituted the Bombay City Civil Court, invested it with jurisdiction to try and dispose of all suits of a civil nature not exceeding Rs. 10,000 in value and arising within Greater Bombay, except certain suits or proceedings therein mentioned, provided that the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Civil Court and further provided for transfer of suits pending in the High Court in which issues had not been settled or evidence recorded on or before the date of the coming into force of that Act to the City Court to be heard and disposed of by the City Court as if the same had been originally instituted in that Court. The Bombay Legislature also simultaneously enacted Bombay Act XLI of 1948 called the Bombay High Court Letters Patent Amendment Act, 1948, by Section 3 whereof an amendment was made in Clause 12 of the Letters Patent of the High Court in the last sentence thereof, which as amended read as under:
Except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay, or the Bombay City Civil Court.
The suits which were cognizable by the Bombay City Civil Court were prescribed in the Bombay Act XL of 1948. So far as suits falling within the jurisdiction of the Small Cause Court at Bombay were concerned, the Bombay Legislature enacted Bombay Act XLIV of 1948 called the Presidency Small Cause Courts (Bombay Amendment) Act, 1948, and by Section 2 thereof the election which was given to the plaintiff to institute in the High Court suits whereof the amount or value of the Subject-matter exceeded Rs. 1.000 was deleted and with regard to certain suits of the nature prescribed in Section 21 of the Presidency Small Cause Courts Act also the jurisdiction of the Bombay City Civil Court was substituted for that of the High Court and the election given to the plaintiff to file such suits in the High Court was substituted by the election given to him to file such suits in the Bombay City Civil Court. The result of this enactment thus was that the original jurisdiction which had been invested in -the High Court under Clause 12 of the Letters Patent to receive, try and determine suits whereof...
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