Karnataka High Court
Shivaleela Bellad W/O. Mallikarjun vs Mallikarjun Bellad S/O. C S Bellad on 13 July, 2020
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
®
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 13 T H DAY OF JULY, 2020
BEFORE
THE HON'BLE MR.J USTICE N .S . SANJ AY GOWDA
C.P. NO.100014/2019
BETWEEN
SHIVALEELA BELLAD W/O. MALLIKARJUN,
AGED ABOUT 34 YEARS, OCC:HOUSEWIFE,
R/O. NALVAD ONI, GADAG-582101.
..... PETITIONER
(BY SRI C S SHETTAR, ADV.)
AND
MALLIKARJUN BELLAD
S/O. C S BELLAD
AGED ABOUT 43 YEARS, OCC:EMPLOYED,
R/O. NO.232, NANJUDESHWARA NILAYA,
1ST FLOOR, NEAR SHARADHA COLONY BUS STOP,
BASAVESHWARA NAGAR,
BENGALURU-560079.
..... RESPONDENT
(RESPONDENT IS SERVED)
THIS CIVL PETITION IS FILED UNDER SECTION 24 OF C.P.C.,
PRAYING TO ALLOW THIS CIVIL PETITION BY TRANSFERRING THE
M.C.NO.6467/2018 PENDING ON THE FILE OF THE II ADDITIONAL
PRINCIPAL JUDGE FAMILY COURT AT BENGALURU TO PRINCIPAL JUDG
FAMILY COURT AT GADAG FOR PROPER ADJUDICATION OF THE
MATTER, IN THE INTEREST OF JUSTICE AND EQUITY.
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THIS PE0TITION COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The office has raised an objection regarding maintainability of this transfer petition, which is perhaps applicable only to a petition filed for transfer of cases under S. 24 of the CPC.
2. The objection is that the proceedings which are sought to be transferred in this petition are proceedings which are pending before the II Addl. Prl. Judge, Family Court at Bengaluru, which would make it a case arising out of Bangalore District and this Permanent Bench at Dharwad, which can decide cases arising out of only 8 districts, would not possess the jurisdiction to transfer a case arising out of Bangalore District.
3. In other words, since the proceeding sought to be transferred is a case arising out of Bangalore 3 District, it is only the Principal Bench of the High Court at Bengaluru, which can transfer the said proceeding.
4. The consequence created out of such an objection would be that this Permanent Bench at Dharwad cannot transfer cases arising out of Bengaluru District to any of the Courts subordinate to it in the 8 districts mentioned in the Presidential Order and the power available to the Permanent Bench is only to transfer a proceeding only between any of the 8 districts mentioned in the Presidential Order of 2013.
5. In order to appreciate this controversy, a brief overview of the establishment of a High Court in a State under the Constitution and the Laws enacted by the Parliament would be necessary.
6. Article 214 of the Constitution mandates that there shall be a High Court for each State. 4
7. Art 226 (2) of the Constitution states that the High Court shall be entitled to exercise its jurisdiction under Art 226 (1) in relation to the territories within which the cause of action, wholly, or in part, arises notwithstanding the fact that the seat of the Government or authority of the residence of the person against who orders are sought for or issued, are not within its territories.
8. Article 227 of the Constitution stipulates that the High Court shall have the superintendence over all the Courts and Tribunals throughout the territories in relation to which it exercises it jurisdiction.
9. In short, the High Court of a State is empowered to exercise its jurisdiction to issue orders throughout the territory of a State and it would possess the powers to issue orders and directions to Governments, authorities and persons who are residing outside the territories of the State, so long as, a part of the cause action has arisen within a State. The High 5 Court, by virtue of its constitutional mandate, exercises its power of superintendence over the entire territory of a State where it is established.
10. In the year 1956, in order to make provisions for reorganization of States, the Parliament enacted The States Reorganisation Act, 1956 (hereinafter referred to as 'Reorganisation Act').
11. Part V of the Reorganisation Act relates to the High Courts in the reorganized states. The deeming provision of S. 49 (1) made the existing High Courts of the States of Bombay, Madhya Pradesh and Punjab as the High Courts for the new states of Bombay, Madhya Pradesh and Punjab.
12. S. 49 (2) of the Reorganisation Act, 1956, established a High Court for the new states of Kerala, Mysore and Rajasthan.
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13. It may be pertinent to state here that even prior to the enactment of the Reorganisation Act, 1956 the Mysore High Court had already been established under the provisions of the Mysore High Courts Act, 1884.
14. S. 17 of the said 1884 Act, in fact, provided for the High Court to hold its sittings at such places as the State Government thought it fit to appoint. The said section made it clear that Judges sitting at various other places would have the power to exercise the jurisdiction and authority in the same manner as a Judge, sitting in the ordinary place of sitting of the High Court.
15. Thus, even prior to the establishment of the High Court under the Reorganisation Act, 1956, the Mysore Act provided for the High Court to sit at more than one place and even when it sat at different places, the Judges sitting there would possess the same authority as those sitting in the original place of sitting. 7
16. Coming back to the Reorganisation Act, S. 51 of the said Act provides for establishment of a Principal seat and other places of sitting of the High Courts for the new states. The principal seat of the High Court is required to be at the place notified by the President by way of a Presidential Order as per S. 51 (1) of the Act. For the State of Karnataka the principal seat is undoubtedly at Bengaluru.
17. Sub section 2 of Section 51 provides for establishment of a permanent bench or benches of a High Court, at one or more places, in the State. These Bench or Benches are required to be established by way of a notified order, issued by the President, after consultation with the Governor and the Chief Justice of the State.
18. Sub section 3 of S. 51 of the Reorganisation Act enables the Chief Justice, with the approval of the Governor, to allow for sitting of Judges and Division Courts of the High Court at such place or places in the 8 State, as he deems proper, notwithstanding the fact that a Principal Bench and permanent bench/benches have been established under Sub section 1 and 2 of Section 51.
19. Thus, a High Court can not only have a Principal seat, but, it can also have a permanent bench or benches at one or more places and in addition, it can also have Judges sitting at any other place or places.
20. In the year 1988, the Hon'ble Chief Justice in exercise of the powers conferred under S. 51 (3) of the Reorgansiation Act, notified the sittings of the High Court at Dharwad and Gulbarga. This notification was issued with the prior approval of the Governor and accordingly the sittings of the High Court took place in Dharwad and Gulbarga from 2008.
21. The notification also stipulated that the Full Court of the High Court had resolved that the Judges sitting at Dharwad and Gulbarga (Circuit Benches) 9 would deal with the cases arising out of the Districts stated in the notification. Thus, the full court of the High Court assigned the cases that were required to be heard by the Judges sitting at Dharwad and Gulbarga and accordingly cases arising out of the specified districts were heard at Dharwad and Gulbarga.
22. Subsequently in the year 2013, the President of India in exercise of his powers under S. 51 (2) of the Reorganisation Act, 1956 issued the Presidential order titled 'The High Court of Karnataka (Establishment of Permanent Benches at Dharwad and Gulbarga), Order 2013'.
23. This Presidential Order was issued by the President, after consultation with Governor of Karnataka and the Chief Justice of the High Court. By virtue of this Presidential Order, the permanent benches of the High Court of Karnataka were established at Dharwad and Gulbarga.
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24. The Presidential order, which was issued after consultation with the Chief Justice stated that the Permanent Bench at Dharwad came into operation on 24 t h August 2013 and the Permanent Bench at Gulbarga came into operation with effect from 31 s t August 2013.
25. The Presidential Order stated that the Chief Justice would nominate the Judges who shall sit at Dharwad and Gulbarga i.e., the Permanent Benches and it also stated that the judges who would sit at Dharwad and Gulbarga would exercise the jurisdiction vested in the High Court of Karnataka in respect of the cases arising out the Districts mentioned therein.
26. Thus, the Presidential Order not only enabled the establishment of the Permanent Benches but also recognized the absolute right of the Chief Justice to nominate judges to sit and decide cases arising out of the Districts mentioned therein.
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27. It cannot be in dispute that since the Chief Justice is the Master of the Rolls, it would be within his exclusive domain to assign the matters that would be decided by the Judges sitting in the Permanent Benches. Since the Presidential Order has been issued after consulting with the Chief Justice, the assignment of the cases to the Judges sitting at the permanent benches i.e., cases arising out of the respective Districts specified in the Presidential Order, is in essence, a reflection of the assignment of cases made by the Chief Justice that were required to be heard by the Judges sitting at the Permanent Benches.
28. This assignment of cases to be heard in respect of the Districts specified therein cannot be construed to mean that there were multiple High Courts established which were required to decide cases arising out of only specified Districts. The assignment of cases to be heard is basically an administrative exercise of the discretion by Chief Justice who is the sole authority 12 to manage the roster and thereby streamline the working of the Benches.
29. This is clear from Paragraph 4 of the Presidential Order which states that notwithstanding the assignment of cases made in sub paragraphs (i) and
(ii) of paragraph 4, the Chief Justice would have the absolute discretion to order that any case or class of cases arising any such district should be heard at Bangalore. Thus, the power of the Chief Justice to assign the cases to be heard at Bangalore even in respect of the Districts specified for the two permanent benches conclusively establishes that the establishment of permanent benches cannot result in the trifurcation of the High Court.
30. The constitutional principle which is discernible from this scheme of things is that irrespective as to the place of sitting of the High Court, i.e., whether it is either at the principal seat or at the permanent bench or for that matter any other place or 13 places, the power exercised by the Judges is the same i.e., the powers exercisable by the High Court of a State.
31. To put it differently, the seat of the High Court does not define the power or jurisdiction of a High Court and the power and jurisdiction exercisable by a High Court of a State would be the same irrespective of the place of sitting of the High Court.
32. The necessary consequence of this is that, in a State, all the courts whose decrees, orders, sentences or proceedings are subject to appeal, reference, revision to the High Court under any law or those courts which are subject to the jurisdiction of the High Court under Art 226 or 227 of the Constitution would be Courts which are subordinate to the High Court.
33. In view of the above, for the purposes of this case, it is clear that the Family Court at Bengaluru would be a Court subordinate to this Permanent Bench 14 of the High Court in the same manner as it would be subordinate to the Principal Bench at Bengaluru.
34. If it is to be held that only the Courts falling within the jurisdiction of the Districts notified to the Permanent Benches alone are subordinate to it, then, the constitutional scheme of there being only one High Court in a State would be defeated.
35. The High Court, which, under a Parliamentary law, can sit at more than one place, would basically be trifurcated and its exercise of jurisdiction over a state which has been conferred constitutionally would be restricted only to a few districts in a State. This is, clearly, constitutionally impermissible.
36. The constitutional mandate is that there shall be one High Court for a State. This constitutional High Court, by virtue of the provisions of the States Reorganisation Act, 1956 can sit at more than one place. Merely because the High Court sits in more than 15 one place, it can never be said that there are different High Courts established in a State with a different set of subordinate courts earmarked for each place at which the High Court sits.
37. This is further made clear from a reading of the Karnataka High Court Rules, 1961, which have been framed in exercise of the powers under Article 225 of the Constitution and also S. 54 of the States Reorganisation Act apart from other enactments.
38. Chapter II of the High Court Rules which deals with definitions, defines the 'High Court' and the 'Subordinate Court' as follows:
(a) "High Court", "This Court" or "The Court"
means the High Court of Karnataka established under the Constitution of India and in accordance with the provisions of sub section (2) of section 49 of the States Reorganisation Act, 1956 (Central Act 37 of 1956) for the State of Karnataka constituted under the said Act:
(b) "Subordinate Court" means any court, Tribunal or Authority whose decrees, orders, 16 sentences or proceedings are subject to appeal, reference, revision to or by the High Court under any law for the time being in force, or are subject to the jurisdiction of the High Court under Article 226 of the Constitution or to its superintendence under Article 227 of the Constitution.
39. A reading of the above definition makes it clear that the High Court is the Court established under the Constitution and in accordance with S. 49 (2) of the Reorganisation Act.
40. Since the Reorganisation Act itself provides for the High Court to sit at a Principal seat and also at the same time, at one or more places in the State, either permanently or temporarily, in law, the High Court sitting at all the places including at the Principal seat, would all be collectively the High Court of a State established under the Constitution.
41. The fact that a subordinate Court has been defined to mean any Court whose orders are subject to appeal, revision or reference under any law or are 17 subject to the jurisdiction of the High Court under Articles 226 or 227 of the Constitution, would by itself, make it clear that all the subordinate Courts in the State would be subordinate not only to the High Court sitting in its Principal seat but also to the High Courts sitting in other places as provided under S. 51 (2) and S. 51 (3) of the States Reorganisation Act, 1956.
42. It is therefore clear that even the Permanent Benches established as per S. 51 (2) of the States Reorganisation Act, 1956 would possess jurisdiction under Article 226 of the Constitution and also have the power of superintendence conferred under Article 227 of the Constitution over all the subordinate Courts in the State of Karnataka.
43. The necessary consequence of this is that even if the transfer of a proceeding from a civil Court pending in a District (in respect of which any cases arising can be decided only by the Principal Bench) is sought for before any one of the Permanent Benches, 18 that Permanent Bench would possess the jurisdiction to invoke the powers under Section 24 of Code of Civil Procedure and transfer the proceeding from that Court to any Court situate in a District from which cases arise out of can be decided by it.
44. Yet another anomaly that would arise if the office objection is upheld would be that the Permanent Benches can order for transfer of cases under S. 24 only between those Courts situated in the Districts from which it hears cases.
45. As a corollary, the Principal Bench can only transfer cases under S. 24 within the Courts situated in the Districts from which it hears cases.
46. The cumulative effect of this would be that there would be virtually three different High Courts operating in the State in respect of separately earmarked Districts and the power to transfer cases from any place in a State to another place in a State 19 would be rendered nugatory. This would result in an absurd situation and would be a gross violation of the Constitutional principle of one High Court for a State.
47. It is for this reason that the Chief Justice, when preparing the roster (sitting list) consciously assigns the hearing of Transfer petitions to Judges who are at the Permanent Benches also.
48. S. 24 of the CPC enables the High Court to transfer a proceeding from one part of the State to any other part of the State and when once the Chief Justice assigns a Judge in the Permanent Benches to decide a Transfer Petition, it is fundamentally to enable that Judge to exercise the powers of the High Court to transfer a case from one part of the State to any other part of the State and this exercise of power cannot be diluted or restricted by a misconstruction of the Presidential Order.
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49. In view of the above, it is clear that the office objection regarding maintainability of the transfer petition is wholly untenable and the same is overruled.
50. Now coming to the facts of this petition:
51. In this case, the petitioner, who is the wife, is seeking for transfer of a proceeding initiated by her husband, the respondent in M.C. 6467/2018 before the II Addl. Prl. Judge, Family Court, Bengaluru, to the Court of Prl. Judge, Family Court at Gadag.
52. It is her case that she is residing at Gadag and it would be impossible for her to travel to Bengaluru, which is situated about 400 km away from Gadag. She also contends that she is looking after her son who is studying in the 8 t h standard and if she were asked to travel to Bengaluru to defend herself, it would have an adverse effect on her son's education and also on his upbringing. She also contends that she has 21 initiated a proceeding under Section 125 of Cr.P.C. for maintenance in Crl.Misc.No.198/2019 before the Court at Gadag and it would be convenient for her, if the matter pending before the Court at Bengaluru is transferred to the Court at Gadag.
53. The respondent, though served, has chosen not to appear in these proceedings. Consequently, it will have to be assumed that he has no objection for the transfer of the petition.
54. In my view, the contentions raised by the petitioner, especially the fact that she has the responsibility of looking after her son all by herself justifies and validates her request for transfer and it would therefore be in the interests of justice if the case filed by the respondent at Bengaluru is transferred to Gadag.
55. As a result, the proceeding pending before the II Addl. Prl. Judge, Family Court at Bengaluru in 22 M.C.No.6467/218 stands withdrawn and transferred to the Court of Prl. Judge, Family Court at Gadag.
56. The Prl. Judge, Family Court at Gadag, after notifying the parties, shall deal with the matter in accordance with law. Petition is allowed accordingly.
Sd/-
JUDGE Naa