Madras High Court
P.S.Subramanian vs K.L.Lakshmanan on 5 June, 2007
Author: S.Nagamuthu
Bench: S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/06/2007 CORAM: The Hon'ble Mr. Justice S.NAGAMUTHU CRP. PD (MD) No.135 of 2007 and M.P.(MD) Nos.2 and 3 of 2007 P.S.Subramanian .. Petitioner Vs. 1. K.L.Lakshmanan 2. M.N.Sankaran .. Respondents Prayer Revision filed under Article 227 of the constitution of India against the order dated 11.12.2006 in I.A.No.24 of 2006 in O.S.No. Of 2006, on the file of the learned Principal District Court, Madurai. !For Petitioner .. Mr.M.Saravanan ^For Respondents .. Mr.M.K.Rajagopal :ORDER
Raising an important question of law relating to the jurisdiction of the Court to entertain a suit under Section 92 of the Code of Civil Procedure (hereinafter referred to as "the Code"), the petitioner has come forward with this civil revision petition under Article 227 of the Constitution of India, challenging the order dated 11.12.2006, made in I.A.No.24 of 2006, in an unnumbered suit in O.S.No. of 2006, on the file of the learned Principal District Judge, Madurai.
2. Short facts relevant to decide the issues involved in this revision are as follows:-
The respondents herein claiming to be the Joint Managing Trustee and Trustee, respectively of Sakunthala Estate Trust, 24-A, Mahal 2nd Street, Madurai, have filed I.A.No.24 of 2006, before the learned Principal District Judge, Madurai under Section 92 of the Code, seeking leave of the Court to institute a suit in respect of the above public Charitable Trust for removal of the petitioner/defendant from the trusteeship and for nomination of new Trustees and for other related reliefs. The petitioner herein is the respondent in the said I.A., and the defendant in the proposed suit. He has filed a detailed counter in the said Interlocutory Application, opposing the grant of leave to file a suit against him. Having considered the facts and circumstances of the case, the learned Principal District Judge by order dated 11.12.2006, has allowed the I.A., thereby granting leave to the respondents herein to institute the above said suit against the petitioner herein. The said order is under challenge in this revision.
3. The main and the only contention of the learned counsel for the petitioner is that the learned Principal District Judge, Madurai, first of all, has no jurisdiction to entertain the suit and according to him, it is only the learned Principal Subordinate Judge, Madurai, who has got jurisdiction to grant such a leave to entertain a suit under Sec.92 of the Code. The said contention of the learned counsel for the petitioner is resisted by the learned counsel for the respondents stating that the Principal District Court, being the Principal Civil Court of original jurisdiction, is the Competent Court to grant such leave and to entertain the suit.
4. In view of the conflicting stands taken by the learned counsel for both sides, it has now become necessary for this Court to decide the said question whether the Principal District Court being the Principal Civil Court of original jurisdiction is the competent court or the learned Principal Subordinate Judge who has been empowered by the Government of Tamil Nadu by means of a notification in G.O.Ms.No.727, Home, 8th March 1960, has got the jurisdiction to grant leave and to entertain the suit.
5. At this juncture, it is essential to refer to Sec. 92 of the Code, which reads as follows:-
"92. Public charities:- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the [leave of the Court] may institute a suit, whether contentious or not, in the principal Civil Court, of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree........"
6. At this juncture, I may refer to Sec.2(4) of the Code, which defines the term as follows:-
"district means the local limits of the jurisdiction of principal Civil Court of original jurisdiction (hereinafter called a District Court), and includes the local limits of the ordinary original civil jurisdiction of a High Court."
7. A combined reading of Sec.92 and Sec.2(4) of the Code, would make it clear that the District Court has been empowered by the Code itself to exercise the jurisdiction to grant leave and to entertain a suit. Thus, going by the plain reading of Sec.92 of of the Code, one would have an impression that the District Court, being the Principal Civil Court of original jurisdiction alone has got the power to grant leave and to entertain a suit under Sec. 92 of the Code.
8. At this moment, one cannot miss to notice that the Code empowers the state Government to confer jurisdiction on any other court to exercise the said power under Sec.92 of the Code, to grant leave and to entertain a suit. Originally, there was a notification issued by the Judicial Department dated 17.10.1910, published at page No.1657 of Part I of the Fort St. George Gazette, dated 25.10.1910, empowering the Courts of Subordinate Judges to exercise the jurisdiction under Sec.92 of the Code. The said notification came to be referred to by a Division Bench of this Court in the Judgment reported in AIR 1916 Madras 960 (Ganapathi Asari and others v. Sundaram Chetti). Subsequently, in suppression of the said G.O., the Government of Tamil Nadu has issued G.O.Ms.No.727, Home, 8th March 1960 in exercise of the power conferred by clause 1 of Sub Section 92 of Code of Civil Procedure, 1908 which is to the following effect:-
"Investiture of powers on Subordinate Judges in respect of trial of cases under Section 92 of Code of Court Procedure.
(G.O.Ms.No.727, Home, 8th March 1960) S.R.O.No.A-1893 of 1960.
In exercise of the powers conferred by clause (1) of Section 92 of the Code of Civil Procedure, 1908 (Central Act V of 10.8), and in supersession of Judicial Department Notification No.719, dated the 17th October 1910, published at pag 1657 of Part I of Fort St.George Gazette, dated the 25th October 1910. the Governor of Madras hereby invests all Courts of Subordinate Judges in the State of Madras with jurisdiction under the said Act in respect of suits relating to trusts created for public purpose of a charitable or religious nature.
H.K.GHAZI, Deputy Secretary to Government"
9. By issuing the said notification, the Government of Tamil Nadu has empowered all the Subordinate Judges in the state of Tamil Nadu with jurisdiction under the said code in respect of suit relating to Trusts created for public purposes of a charitable or religious nature. A reading of the said notification, would give an impression that the Courts of Subordinate Judges also have the jurisdiction to grant leave and to entertain any suit under Sec. 92 of the Code.
10. More or less a similar situation question was considered by a Division Bench of this Court in the Judgment reported in AIR 1916 Madras 960 (cited supra). That was a case where originally the suit was filed before the District Court under Sec. 92 of the Code. Thereafter, it was transferred by the District Court to the Subordinate Court. This had happened prior to the notification issued by the Government of Tamil Nadu in 1910 empowering the Subordinate Courts to entertain the suit. Subsequent to the notification, the Subordinate Courts were empowered by the Government to entertain suits. When the question was posted before the Division Bench of this Court whether the Subordinate Courts, having been empowered by the Government, has the exclusive jurisdiction to entertain the suit, the Division Bench answered the said question, in the following manner:-
"....It apparently derived its power from the notification of the 17th October 1910, and it is difficult to see what difficulty there is in the way of the Subordinate Judge exercising powers which the local Government was competent to confer under the provisions of S.92 of the Code and which it did as a matter of fact confer on all Subordinate Judges in the Presidency........"
"We hold that the Subordinate Judge is competent to try and dispose of the suit."
11. Subsequently, the Government has thought it fit to issue another order in G.O.Ms.No.727, Home, 8th March 1960 empowering all Courts of Subordinate Judges in the state of Tamil Nadu to have jurisdiction under Sec.92 of the Code. In view of the foregoing discussions, one would now have the impression that, the District Court being the Principal Civil Court of original jurisdiction and the Courts of Subordinate Judges being the Courts empowered by the Government under the notification appear to have concurrent jurisdiction to entertain suits of the said nature.
12. Now the question to be answered is whether the said impression created, namely both the Courts have concurrent jurisdiction to entertain a suit under Sec.92 of the Code, is correct or not. To answer the said question the key word employed in sec.92 of the Code namely "or" requires to be interpreted in its legal sense in the given context.
13. The word "or" as per the New Concise Oxford English Dictionary means, it is stated as "conj. used to link alternatives". It is needless to state that this word "or" has been employed in various enactments and they came to be interpreted by various Courts including the Hon'ble Supreme Court. In some cases, in the context in which the said word "or" has been used, the Courts have held that the word "or", though literally a "conjunctive", at times it is "disjunctive" and in yet another given circumstance it acts as "substitutive".
14. In the Judgment reported in AIR 1923 CALCUTTA 682 (Kedar Nath v. Madhu Sudan) a Division Bench of the Calcutta High Court had an occasion to interpret the word "or" employed in Sec.106 of the Transfer of Property Act. While interpreting the said word in the context of Sec.106 of the Transfer of Property Act, the Division Bench of the Calcutta High Court has held as follows:-
".....Here, however, the plain language of section 106 indicates that service may be effected in one or other of the modes prescribed. The appellant has thus been driven to contend that the term 'or' means - 'or if, such personal tender or delivery is impossible'. There are two manifest objections to this interpretation. In the first place the word 'or' is an alternative word, as it was observed by Park B. in Elliot v. Turner (8). It is, however, not always disjunctive and is sometimes interpretative or expository of the preceding word:
Hills v. London Gas Co. (9). But, no instances have been brought to our notice where the term 'or' is used neither as alternative nor as synonymous. In the second place, in section 106 the Legislature uses the expression "if such tender or delivery, is not practicable," in one contingency, namely, when service is effected by fixing the notice to a conspicuous part of the property. If the Legislature had intended that the mode previously mentioned should not be alternative but that recourse should be permissible to one of the modes only when the other had proved infructuous, the Legislature could easily have framed the section in suitable terms. We are consequently of opinion that in the case before us where there was a tender or delivery of the notice to the head member of the family, the service was sufficient, notwithstanding that there is no proof of prior tender or delivery to each of the joint tenants personally. We hold accordingly that the Subordinate Judge has correctly found that the notice was duly served."
15. A close reading of the relevant portion of the Judgment of the Division Bench would show that the word "or" requires to be interpreted only in the context in which the same has been used and there cannot be a hard and fast rule that it is always either conjunctive or disjunctive. Having regard to the context, the word "or" can be interpreted either as interpretative or expository of the preceding word.
16. The same word "or" came to be interpreted in the Judgment of a Division Bench of the Madhya Pradesh High Court in the Judgment reported in AIR 1969 MADHYA PRADESH 147 (Raipur Municipality v. Bishandas). In the context of Prevention of Food Adulteration Act, in paragraph No.11 of the said Judgment, the Division Bench has held as follows:-
"11.......The word 'and' is normally conjunctive and the word 'or' is normally disjunctive, but sometimes they are read as vice versa to give effect to the manifest intention of the legislature as disclosed from the context...."
17. The Hon'ble Supreme Court also interpreted the word "or" in the Judgment reported in AIR 1957 S.C 699 (State of Bombay v. R.M.D. Chamarbaugwala), wherein the Hon'ble Supreme Court has read the word "or" as "and" to give effect to the clear intention of the Legislature as expressed in the Bombay lotteries and Prize Competitions Control and Tax Act (54 of 1943). Similarly, in another case reported in AIR 1958 Supreme Court 861 (Mazagaon Dock Ltd., v. I.T & E.P.T. Comme), the Hon'ble Supreme Court has read the word "or" as "and" while interpreting Sec.42 of the Income Tax Act (1922).
18. Similar view was taken by the Hon'ble Supreme Court in the Judgment reported in AIR 1966 Supreme Court 1995 (State of Bihar v. S.K.Roy) in the context of Coal Mines Provident Fund and Bonus Schemes Act (1948), wherein also the Hon'ble Supreme Court has held that the word "or" occurring before the expression "belonging to a coal mine" in the main definition has to be read to mean "and". Any other interpretation would lead to an anomalous and starting consequence."
19. A close reading of the above Judgments cited supra would make manifestly clear that the word "or" used in a statute requires to be interpreted, taking into account, the intention of the legislature and the context in which the same has been used. Any other interpretation would lead to an anomalous and starting consequence. In the above background, if the word "or" used in Sec.92 of the Code is interpreted, what emerges is that the same has been used only as a "substitutive" and neither as "conjunctive" nor as "disjunctive". By the operation of the word "or" as substitutive, the later part of the provision after the word "or" substitutive the earlier part occuring before the word "or" in Section 9 C.P.C., and thus, the Courts of Subordinate Judges substitutive the District Courts thereby depriving the power of the District Courts. The reasons for such a conclusion are as follows:-
(a) It is needless to state that every part of the State of Tamil Nadu, is covered by a Principal Civil Court of original jurisdiction and no place can be shown to be without a Principal Civil Court of original jurisdiction for the said area. If it is the intention of the legislature that the Principal Civil Court of original jurisdiction should alone have the jurisdiction to grant leave and to entertain the suit, then there was no purpose in adding the subsequent part of the Section namely "or in other Court empowered in that behalf by the State Government". Therefore, the legislative intention must be that apart from the Principal Civil Court of original jurisdiction, some other Courts would also be empowered to exercise the jurisdiction. If it is to be held that the Principal Civil Court of original jurisdiction alone has the jurisdiction, then practically there would be no purpose in conferring the said power on any other Court. Therefore, keeping in mind the legislative intention that apart from the Principal Civil Court of original jurisdiction, some other Courts should also be empowered in that behalf by the State Government, it has to be necessarily held that the statutory power of the Principal Civil Court of original jurisdiction does not exclude or override the power of any other Court empowered by the State Government. Such an interpretation would give an impression that the Principal Civil Court of original jurisdiction as well as any other Court empowered in that behalf by the State Government shall exercise concurrent jurisdiction. But, the said impression also cannot be countenanced in view of Sec.15 of the Code of Civil Procedure. At this juncture, it is necessary to extract Sec.15 of C.P.C:-
"15. Court in which suits to be instituted.- Every suit shall be instituted in the Court of the lowest grade competent to try it."
(b) A plain reading of Sec.15 of the Code, would show that a civil suit shall be instituted in the Court of the lowest grade. In so far as the District Court being the Civil Court of original jurisdiction and the Subordinate Courts in the State of Tamil Nadu having been empowered by the State Government under Sec.92 of the Code, there can be no doubt that the Courts of Subordinate Judges being the Principal Courts of lowest grade shall be the competent Courts where a suit has to be laid under Sec.92 of the Code. Therefore, a conjoint reading of Sec.15 and Sec.92 of the Code giving stress to the word "or" would make it manifestly clear that though there appears to be concurrent jurisdiction of both Courts, in view of the specific provision contained in Sec.15 of the Code, it shall be only the Subordinate Judges Courts empowered by the State Government by means of notification which have got exclusive jurisdiction to grant leave and to entertain any suit under Sec.92 of the Code. Thus, the word "or" employed in Sec.92 is to be interpreted as substitutive in the given context by taking into account, the legislative intention.
20. The said conclusion also draws support from the Judgment of this Court reported in 1995 L.W. 664 (Management of Sayani Talkies v. Ratha). The said case is the one under the Tamil Nadu Cultivating Tenants Protection Act, (1955). The word "or" employed in Sec.2(h) of the said Act came be interpreted by this Court. Sec.2(h) of the Act is to be the following effect:-
"2(h). Revenue Divisional Officer" means the Revenue Divisional Officer in whose jurisdiction the holding in question or part thereof is situate or an officer of the Revenue Department not lower in rank than the Revenue Divisional Officer, empowered by the State Government in this behalf".
21. The question arose before this Court was whether the Revenue Divisional Officer in whose jurisdiction the holding in question or part thereof is situate or an officer of the revenue department not lower in rank than the revenue divisional officer empowered by the State Government in this behalf is competent. This Court in the said context of the Act, has interpreted the word "or" as substitutive. In paragraph No.7 of the said Judgment, the learned Judge has held as follows:-
"The use of the expression 'or' in the provision does not mean that as respects one and the same area, where the holdings in question are situate, concurrent or parallel jurisdiction can be exercised both by the Revenue Divisional Officers, as such, and by the other officer of the Revenue Department of equal or superior rank empowered by the State Government. The clear implication of the provision, on the contrary, is that the State Government's action investing another revenue official of equal or superior rank with jurisdiction deprives forthwith and by its own force the jurisdiction of the Revenue Divisional Officer. If overlap of jurisdictions were intended, one would expect further express provisions in the Act governing the distribution of business area-wise or otherwise as between the Revenue Divisional Officer and the other officer empowered by the State Government operating over the same region. Far from the expression 'or' being regarded as a conjunctive, it has not merely to be read as a disjunctive but must be read as substitutive."
22. The learned Judge has held the view that the State Government's action investing another authority of equal or superior rank with jurisdiction deprives forthwith by its own force the jurisdiction of the Revenue Divisional Officer. The view of the learned Judge that the conferment of power on an authority by the Government automatically deprives the power of the original authority under the Act, squarely applies to the facts of the present case also.
23. In so far as Sec.92 of the Code is concerned, the original authority directly empowered by the statute to exercise jurisdiction is the Principal civil Court of original jurisdiction namely the District Judge in the State of Tamil Nadu and the Courts of Subordinate Judges in the state of Tamil Nadu are the authorities empowered by the State Government. If the view of the learned Judge is applied, it leaves no doubt that the action of the Government empowering the Courts of Subordinate Judges in the state of Tamil Nadu to exercise jurisdiction under Sec.92 of the Code automatically deprives the District Judges from exercising the power under Sec.92 of the Code. Thus, the conclusion arrived at by me that the word "or" in the given context is only substitutive is fully supported by the view of the learned Judge. Another single Judge Hon'ble Mr.Justice Srinivasan,J. (as he then was) had an occasion to interpret Sec.92 of the Code, in the Judgment reported in 1991-2-L.W 360 (Nataraja Virudhular & another v. Mahalingam & others). His Lordship, relying on the Judgment of the Division Bench of this Court reported in AIR 1916 Madras 960 (cited supra) and also the notification of the year 1910 has held that the Courts of Subordinate Judges have been vested with the jurisdiction to entertain suits under Sec.92 of the Code.
24. A Division Bench of this Court was also confronted with a similar situation in the Judgment reported in 2004 (4) CTC 641 (B.D.V.Rangarathinam and others v. Sri Bakthositha Perumal Temple, Sholinghur and others) wherein, this Court has held as follows:-
" 15.......There cannot be any doubt that the District Munsif Court has no jurisdiction, as the State Government in the Notification in G.O.Ms.No.727, dated 08.03.1960 conferred power only on the Court of Sub-Judges in the State of Tamil Nadu with the jurisdiction to deal with the suits relating to trusts created for public purpose of charitable or religious nature."
(emphasis applied) The above view expressed by the Division Bench binds me and also supports the view taken by me above.
25. In view of the discussions made above, the solitary conclusion which emerges is that the power of the District Courts, though they are the Principal Civil Court of original jurisdiction, stands deprived by implication by the act of the Government by empowering the Courts of Subordinate Judges in the state of Tamil Nadu to exercise the power under Sec.92 of the Code. Except interpreting the word "or" as substitutive, I am not able to take any different view in this matter. Thus, I answer the question that the learned District Judge is not competent to entertain suits under Sec.92 of the Code after granting leave and only the Subordinate Judges are competent to entertain the suits under Sec.92 of the Code.
26. In the result, the order of the lower Court granting leave and entertaining the suit filed by the respondents herein is liable to be set aside and the revision deserves to be allowed.
27. But mere setting aside the impugned order will not solve the issue involved in the suit without an appropirate direction. Accordingly a direction is issued to the learned Principal District Judge, Madurai to return the suit and I.A.No.24 of 2006, to enable the respondents to present the same before the learned Principal Subordinate Judge, Madurai for getting appropriate relief. On such presentation, the learned Principal Subordinate Judge, Madurai shall dispose of the Interlocutory Application seeking leave to file a suit, strictly in accordance with law after affording sufficient opportunity to both the parties concerned.
28. With the above direction, the civil revision petition is allowed. Considering the nature of the case, there shall be no order as to costs.
To,
1. The Principal District Court, Madurai
2. The Principal Subordinate Judge, Madurai.