Karnataka High Court
Bhawarlal vs Mahmad Hussain Sab on 14 October, 1986
Equivalent citations: ILR1986KAR4130
ORDER Kulkarni, J.
1. Both the Advocates submitted that the revision itself may be heard finally on merits. Accordingly arguments are heard and the revision is disposed of.
2. The respondent- landlord filed an eviction petition in in H.R.C. 8 of 1979 on the file of the Munsiff, Hospet, against the revision petitioner under Section 21(1) (b) and (j) of the Karnataka Rent Control Act. The Munsiff dismissed the said H.R C. case on 5-9-1983. The respondent, being aggrieved by that order, approached the District Judge with H. R. C. Revision 21 of 1983. The District Judge, Bellary, on 7-8-1985 set aside the order passed by the Munsiff and ordered eviction and gave time to the tenant till 30th April 1986 to vacate. It appears that the revision petitioner, being aggrieved by that older, filed on 15-4-1986 a revision petition in C.R.P. 1926 of 1986 in this Court.
3. The Civil Courts were closed for summer vacation for the period from 21-4-1986 to 25-5-1986(both days inclusive). During the vacation period, the respondent filed an execution case 14 of 1986 in the Court of the Vacation Judge on 6-5-1986 and obtained an order under Order 21 Rule 35 of the Code of Civil Procedure for possession of the property. The delivery warrant was executed on 12-5-1986 and the respondent was put in possession of the property. The revision petitioner; being aggrieved by the said order, has come up with this revision.
4. The learned Counsel Sri Savanur submitted that the District Judge could not have entertained an execution petition during summer vacation and thus could not have passed an order under Order 21 Rule 35 of the Code of Civil Procedure and thus the subsequent act of delivery of possession to the respondent by the Court bailiff was bad at law. His argument that the District Judge could not have entertained a civil proceeding during vacation does not appear to be correct.
5. Section 28 of the Karnataka Civil Courts Act reads, as-
"28. Vacation :--
(1) and (2) xx xx xx (3) Notwithtanding anything contained in this Act or in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) :--
(a) the High Court, may, where there are more than one District Judge in any District Court, designate by notification any one of those District Judges as the Vacation District Judge for the duration of the adjournment of any District Court in summer ;
(b) where there is only one District Judge in any District, the High Court may, by notification, designate such District Judge or appoint a Civil Judge in the District as the Vacation District Judge or the Vacation Civil Judge, as the case may be, of the District Court thereof for the duration of the adjustment of such District Court in summer or part thereof.
The High Court may regulate, by special or general order, work to be discharged by the Vacation Civil Judge or the Vacation District Judge.
4(a) The local limits of the jurisdiction of the Vacation District Judge or Vacation Civil Judge shall be the same as those of the District Court concerned.
(b) The jurisdiction of the Vacation Civil Judge shall extend to all suits, appeals and other proceedings pending in, or cognizable by any Civil Court (whether a District Court, a Civil Judge's Court or a Munsiff's Court) in the District concerned when such Court is adjourned for summer vacation.
(5) The place at which the Court of the Vacation District Judge or the Vacation Civil Judge shall be field, shall be the same as the place at which the District Court concerned may be held. The Vacation District Judge or the Vacation Civil Judge shall have such administrative control over the staff of the several Civil Courts in the District, as the High Court may, by general or special order, determine.
(6) Notwithstanding the appointment of the Vacation District Judge or the Vacation Civil Judge, every Civil Court in the District shall, during the period it is adjourned for summer vacation, be deemed to be closed for the purposes of Section 4 of the Limitation Act, 1963 (Central Act 36 of 1963).
(7) On the re-opening of the District Court, a Court of Civil Judge or a Munsiff's Court, after the Summer vacation, all suits, appeals and other proceedings pending in the Court of the Vacation District Judge or Vacation Civil Judge which, but for this section, would have been instituted or pending in such District Court, Court of Civil Judge or Munsiff's Court, as the case may be, shall stand transferred to such District Court, Court of Civil Judge or Munsiffs Court, and any decree, order or proceeding passed by the Vacation District Judge or the vacation Civil Judge, after such transfer, be deemed to be a decree, order or proceeding passed by the Court concerned.
(8) Notwithstanding the provisions of Sub-section (7), any appeal from the decree order of the Court of the Vacation District Judge or Vacation Civil Judge shall, when such appeal is allowed by law, lie to the High Court."
It is no doubt true that whenever a District Judge is also appointed as a Vacation District Judge, he can exercise all powers as the District Court is a Court of original jurisdiction. This view of mine gathers strength from the decision in Lokappa and Anr. v. Narayana, 1973(1) Mys. L.J. 16.
6. Now the question is whether a Vacation District Judge was justified in entertaining the execution case and order the issue of delivery warrant under Order 21 Rule 35 of the Code of Civil Procedure. The latter portion of Section 28 (3) reads, as--
"The High Court may regulate, by special or general order, work to be discharged by the Vacation Civil Judge or the Vacation District Judge."
Therefore, the work that is to be discharged by the Vacation District Judge or the Vacation Civil Judge, would be regulated by a notification to be issued by the High Court. In this case, there are two notifications issued by this Court. One of them is at No. GOB (1)444/85 (ii) dated 10-1-1986. This notification only declares that in addition to Sundays Second Saturdays and Public Holidays notified by the Government in Notification No. DPAR 6 HHL 85, dated 28-11-85, 10-11-85 and 9-1-86, all the Subordinate Civil Courts, the Bangalore City Civil Court and Small Causes Courts in the State of Karnataka, will be closed for the Vacations as specified below during he year 1986.
Summer Vacation :
From Monday the 21st April 1986 to Sunday the 25th May 1986 (b.d.
i.) Dasara Vacation :
From Monday the 6th October, 1986 to Sunday the 12th October, 1986 (b.d.i.) Winter Vacation :
From Wednesday the 17th December, 1986 to Wednesday the 31st December 1986 (b.d.i.)"
The second notification bearing No. GOB (I). 124/86 (2) dated 17-4-1986 enumerates as to who shall work as Vacation Judges during particular periods. So far as Bellary District is concerned, the relevant portion is as below--
"(6) District Judge, Bellary Bellary 21-4-86 to 25 4-86 (7) Civil Judge, Bellary Bellary 26-4-86 to 9-5-86 (8) District Judge, Bellary Bellary 10-5-86 to 25-5-86"
Part II of the second Notification reads as--
"In exercise of the powers conferred under Sub-section (3) of Sect ion 28 of the Karnataka Civil Courts Act, 1964, the Vacation District Judges/ Vacation Civil Judges are directed to dispose of urgent Civil matters in which injunction, stay of proceedings and attachment orders etc., are sought for during the Summer Vacation of 1986."
Therefore, the exercise of the powers by the Vacation Courts, as laid down by latter portion of Section 28 (3) (b) of the Karnataka Civil Courts Act, is regulated by the High Court Notification. The High Court notification simply directs the Vacation Courts to dispose of urgent civil matters in which injunction, stay of proceedings and attachment orders etc., are sought for, during the summer vacation of 1986. Therefore this Notification makes it clear that the Vacation District Judge or the Vacation Civil Judge is required to dispose of urgent matters in which injunction, stay of proceedings and attachment orders etc., are sought for. The wisdom behind this Notification is that the parties seeking injunction, stay of proceedings and attachment etc., should not suffer for the closure of the Court during summer vacation. It is not as if the Vacation Court can pass all orders, which a Civil Court can exercise during the working days. If the Vacation Courts are required to dispose of all civil proceedings of any nature whatsoever, then there was no necessity for this Court to restrict the exercise of powers to certain matters like injunction, stay of proceedings, attachment orders etc. The learned Counsel Sri D. L. N. Rao urged that the use of the word 'etc.' indicated that all the powers of Civil Court, whether they be of urgent nature or not, can be exercised by the Vacation Judge. I do not think that the said argument has got any force. To accept such an argument would result in flooding the Vacation Court with all matters of original jurisdiction, though they may not be of urgent nature. It is only the matters, in which urgent relief is required that can be entertained and disposed of by the Vacation Courts. Exercise of any other power, which is not covered by this notification, would be an irregular exercise of jurisdiction, though it may not be illegal, because the District Court would be a Court of original jurisdiction and having jurisdiction over the entire District. Though it may not be illegal to exercise such a jurisdiction, an exercise of any other power to grant relief, which may rot be of urgent nature, would be irregular.
7. It is no doubt true that the time was given to the tenant till 30th April 3986 to vacate. That period was over during vacation. It may be that the landlord-respondent was entitled to possession of the property immediately after the expiry of 30-4-1986. But there was no urgency. He could have waited till the reopening of the Court and could have filed execution petition in the competent Court, which normally exercises jurisdiction in such matters. There was no urgency involved in the matter. Therefore, the entertainment of the execution petition by the Vacation District Judge amounts to irregular exercise of jurisdiction. The District Judge ought to have directed the party to wait till the reopening of the Court and then file the execution case in the concerned Court. He has not done so in this case. He does not appear to have looked to the said notification issued by this Court enumerating the powers, which a Vacation Judge could exercise during the vacation.
8. As already stated above, the entertainment of the execution by the Vacation District Judge and issuing an order under Order 21 Rule 35 of the Code of Civil Procedure directing delivery of possession of the property to the landlord and delivery of possession to the landlord in pursuance to the said warrant are nothing but irregular exercise of the jurisdiction. But it does not amount to an illegality.
9. It is also stated before me that the landlord, in pursuance of the warrant, has taken possession of the property. It is also undisputed that the Revision petition filed in this Court was also dismissed, however giving one year's time to the tenant to vacate. Even that order, it is submitted by both the advocates, has been recalled by this Court. Therefore, it would be only a futile exercise by this Court to set aside the order dated 12-5-1986 directing delivery of possession of the property and it would be futile on the part of this Court to order-delivery of the property to the tenant.
10. Therefore, in the view I have taken above, the revision and the I.A.I are disposed of.