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Civil Revision No. 786 of 1952, decided on 16th April 1953.

S. 24‑Subordinate Judge suo motu whether empowered to transfer a case from his Court to some other Court‑East Bengal Civil Court (Amend ment) Act, 1950‑Effect of.

Section 24 of the Civil P. C., which deals with the power of transferring suits and appeals from one Court to another, does not empower a subordinate Judge to transfer a suit from his Court to another Court except under the order either of the District judge or of the High Court with whom alone the power of transfer under the section rests.

The East Bengal Civil Court (Amendment) Act, 1950, no doubt empowers Munsifs to try a suit upto the value of Rs. 4,000 but such vesting will give the Munsif jurisdiction to deal only with the cases instituted in his Court and not over a case instituted in another Court unless it is transferred to his file under the order of the District Judge or of the High Court.

Maksum‑ul‑Hakim and Mainul Huq for Petitioner.

M. Asir, Government Pleader and K. Hossain for Opposite Parties.

‑This Rule was issued at the instance of the plaintiff petitioner on the defendants opposite parties Nos. 1‑5 upon an application under section 115 of the Code of Civil Procedure, calling upon the opposite parties to show cause why the order of the Munsif, Second Court, Satkhira, dated 13th May, 1952, rejecting an application for amend ment should not be set aside.

The application is opposed by the opposite parties.

The circumstances leading to the filing of this application for revision may briefly be put thus: In 1946 the petitioner brought a title suit, being Title Suit No. 179 of 1946, of the Court of Subordinate Judge, Khulna, against the defendants opposite parties for specific performance of a contract for sale, on the allegation that in the first part of July, 1944, defendants Nos. 1 and 2 had contracted to sell three items of properties described in the Schedule 'Ka' to the plaint for Rs. 2,200 out of which Rs. 60 was paid on the date of the contract and the balance was to be paid within December following, that the balance was offered within the stipulated time more than once but he was put off each time on various pleas, and that subsequently the plaintiff came to learn that the properties had been sold to defendants Nos. 3 to 5.

Defendants Nos. 1 and 2 denied the allegations of contract and payment of Rs. 60 and further contended that the suit as framed was not maintainable.

Defendants Nos. 3 to 5 pleaded that they were bona-fide purchasers for value without notice of the alleged contract and further contended that the defendants Nos. 1 and 2 being Mutwallis in respect of the disputed property, the suit could not be maintainable against them in their personal capacity, and that no notice having been given to Waqf Commissioner as required by section 70 of the Waqf Act, the suit would fail on that ground too. As many as six issues were framed and issue No. 5 was to the following effect:

"Is the suit maintainable in its present form "

The suit was fixed for 11th June, 1949, for pre‑emptory hearing but for want of Court's time it could not be taken up for hearing before the 13th August, 1949. The hearing was closed on the 1st September, 1949, and 27th September, 1949. was fixed for delivery of Judgment. In the meanwhile on the 2nd September, 1949, the plaintiff petitioner filed an application for amendment of the plaint by including some specific plots. The Subordinate judge did not dispose off the petition forthwith but simply recorded an order to the effect that the matter would be discussed in the judgment which would be delivered on the 14th November, 1949. The judg ment, however, was delivered two days earlier i.e., on the 12th November, 1949, and that again only on issue No. 5. He came to the conclusion that the suit as framed was formally defective and, therefore, could not be maintained in that form. He, however, did not dismiss the suit but made the following observation on the issue of the maintainability of the suit:

"Before I pass to the other issues which are on merits, I feel inclined to give a chance to the plaintiff to consider, if he would withdraw from this suit on the ground of formal defect as found above. If he is advised to do so by his learned lawyers he may file the formal petition to that effect on or before the 22nd November, 1949. If he does not decide to withdraw from the suit, my finding regarding the other issues shall be embodied in the judgment".

On the 8th November, 1949, the petitioner filed another application for amendment of the plaint seeking among other things to describe the defendants Nos. 1 and 2 as Mutwallis and the learned Subordinate judge by an order, dated the 14th January, 1950, ordered that he would consider the matter of the amendment of the plaint after service of notice can the Commissioner of Waqf. In his order he found that the property involved in the suit was Waqf property and that defendants Nos. 1 and 2 were its Mutwallis although they had not been so described in the plaint. He also pointed out that in view of these circumstances, section 70 of the Bengal Waqf Act would apply and notice to the Commissioner of Waqf was necessary.

Notice was taken by the petitioner to the Waqf Com missioner, but, when the matter came up for hearing on the 4th May, 1950, another judge who passed the earlier order, rejected it on the ground that the finding of his predecessor on the 12th November, 1949, on issue No. 5 in the suit was the material portion of his order of that date and that after that finding the Court had no power to amend the plaint to render it maintainable. He took the view that what was stated there on issue No. 5 was final adjudication. Against the order, dated the 4th May, 1950, the petitioner moved this Court and a Division Bench presided over by Shahabuddin, C. J., by an order, dated the 17th April, 1951, set aside the order of the learned Subordinate Judge and directed him to dispose of the application for amendment according to law without, however, expressing any opinion with regard to the merits of the application for amendment. The Subordinate judge received this order on the 16th November, 1951, and on the same date he suo motu passed an order transferring the suit to the Munsif, 2nd Court, Satkhira, for disposal without waiting for any order from the District judge to that effect though the neces sity of such order was brought to his notice. The Munsif by an order, dated the 13th May, 1952, rejected the petition for amendment after hearing the parties on merits.

The present application under section 115, Civil P. C., is directed against this order of the Munsif. The learned Advocate for the petitioner contends that the Munsif by passing an order on the petition for amendment exercised a jurisdiction not vested in him by law. This contention must prevail. The power transferring suits and appeals from one Court to another is dealt with in section 24 of the Code of Civil Procedure, material portion of which runs as follows:

"On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court, or the District Court may at any stage transfer any suit, appeal or other proceeding pending in any Court sub ordinate to it and competent to try or dispose of the same".

Evidently, the section does not empower the Subordinate judge to transfer a suit from his Court to another Court. The power rests with the High Court and the District Court but it is nowhere available that the transfer was made under the order either of the District Judge or of the High Court. On the other hand, it appears that the petitioner by a petition asked the Subordinate judge to defer the question of transfer till an order was received from the District judge but the prayer was rejected. Now assuming for argument's sake, that the transfer was made under the direction of the District judge, even that would not give the Munsif jurisdiction to deal with the case when the High Court's direction was that the application should be heard by the Subordinate Judge. It is true that after the East Bengal Civil Court (Amendment)) Act, 1950, obtained assent of the Governor of the Province, the Munsif, 2nd Court, Satkhira, has been vested with special powers to try a suit up to the value of Rs. 4,000 but, such vesting will give the Munsif jurisdiction to deal only with the cases instituted in his Court, It, however, will not give him any jurisdiction over a case instituted in another Court unless it is transferred to his file under the order of the District judge or of the High Court. Here in the present case the order of transfer having been made by a Court having no jurisdiction to transfer it, such transfer, could not be expected to give jurisdiction to the Munsif to deal with the case, and in fact it did not. The Munsif, therefore, acted illegally and without jurisdiction.

In the result, the Rule succeeds and is accordingly made absolute and the Munsif's order, dated the 13th May, 1952, rejecting the application for amendment is set aside and the suit transferred to the same Court of the Subordinate Judge, Khulna, for its disposal and also for the disposal of the application for amendment on merits according to direction given by the Division Bench in its order, dated the 17th April, 1951. We make no order as to cost.

.‑I agree.

K. B. A. Rule made absolute.

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