Held that an Additional District Judge can grant leave under Section 92 CPC and assign the case to the District Judge, satisfying jurisdictional requirements, dismissing the revision against such an order.
The revision was dismissed as without merit.
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Reserved
Court No. - 9
Case :- CIVIL REVISION No. - 70 of 2018
Revisionist :- Hareram Singh And Another Opposite Party :- Ram Dayal Singh And Another Counsel for Revisionist :- Manish Kumar Nigam
Hon'ble Anjani Kumar Mishra,J.
Heard Shri Manish Kumar Nigam for the revisionists.
The revision is directed against the order dated 11.10.2017 passed by the Additional District Judge/Fast Track Court No. 28, Deoria, granting leave under Section 92 CPC to the opposite parties to institute a suit.
The revisionists are the defendants in the suit permitted to be instituted by the order impugned.
Assailing the order, the contention of counsel for the revisionists is that in view of the provisions contained in Section 92 CPC, the suit is required to be instituted before the Principle Court of Civil Jurisdiction in the District. The application for leave had been filed before the District Judge but the same was transferred to the Court of the Additional District Judge, which has passed the order impugned. This is not permissible because the institution of the suit is contingent upon grant of leave by the Court as provided under Section 92 CPC. Therefore, the leave has to be granted by the District Judge alone. Although, once a suit has been validly instituted, the District Judge, in view of the plethora of decisions in this regard, is competent to assign it to any Additional District Judge exercising powers conferred by Section 8, The Bengal, Assam and Agra Civil Court Act, 1887 read with Section 24 CPC. These powers can be exercised only with regard to a validly instituted suit. However, there is no suit till such time leave has been granted by the Court.
By drawing a distinction between 'filing' and 'institution' he has referred to the decisions against him, namely Ram Kishore Sharma and Ors. Vs. Gopi Nath and Ors., AIR 1979 All 281 and the decision by the learned Single Judge in Ashok Kumar Jain and Ors. Vs. Gaurav Jain and Ors. passed in a Matter Under Article 227 No. 3277 of 2017 decided on 30.11.2017 and for the purposes of distinguishing these judgments by a decision of the Delhi High Court in Rahul Jain and Anr. Vs. Shri Pradeep Kumar and Ors. (MANU/DE/9272/2006) .
I have considered the submissions made by counsel for the revisionists and perused the record as also the judgments referred to and cited before me.
It is no doubt true that the Delhi High Court in Rahul Jain (supra) has drawn a distinction between "filing" of an application under Section 92 for leave and "institution" of the suit itself, after leave has been granted, but this aspect has been dealt with by this Court in Ashok Kumar Jain (supra) and this distinction has been repelled.
Since an identical submission has already been negatived by a Single Judge of this Court, there appears no justification for, nor can a view contrary, thereto, is liable to be taken.
Besides, the High Court in Ashok Kumar Jain (supra) has, in paragraph 27, observed as follows:-
"The position of the Additional District Judge is thus equated to that of the District Judge of the District having identical judicial powers as may be conferred upon him. The power of discharge of judicial functions by the Additional District Judge in a District Court is absolutely same as that of the District Judge."
In view of the above, the order impugned in my considered opinion cannot be interfered with.
Besides, after having granted leave, the Additional District Judge has directed transfer of the case to the District Judge where the suit will have to be registered and proceeded with. This, in my considered opinion, will satisfy the requirement of institution of the suit before the Principal Civil Court of original jurisdiction in the District.
The revision is, therefore, without merit and is dismissed.
Order Date :- 16.07.2018 Mayank
Digitally signed by ANJANI KUMAR MISHRA ANJANI DN: C=IN, O=Personal, PostalCode=211001, S=Uttar Pradesh, Phone=f6e3ce979d8983acfc0b3ea049885 KUMAR bf64ad5bbb33050e3dfe3e210927d94f413, SERIALNUMBER=004ee64f25f9f36f85dbdc71f5b0ec1e2f0938431e25dbbadc938239 15b36c6f, CN=ANJANI KUMAR MISHRAReason: I am the author of this document Location: MISHRA Date: 2018-07-16 16:33:44
2 issues framed by the court
Whether leave under Section 92 CPC must be granted by the District Judge personally or can be granted by the Additional District Judge.
Whether an order by the Additional District Judge granting leave satisfies the requirement of instituting a suit before the Principal Civil Court.
Colour shows how this judgement treated each authority
Ram Kishore Sharma and Ors. Vs. Gopi Nath and Ors.Referred¶9
Ram Kishore Sharma and Ors. Vs. Gopi Nath and Ors., AIR 1979 All 281 · Who else cites this
Ashok Kumar Jain and Ors. Vs. Gaurav Jain and Ors.Distinguished¶9121314
Ashok Kumar Jain and Ors. Vs. Gaurav Jain and Ors.
Rahul Jain and Anr. Vs. Shri Pradeep Kumar and Ors.Distinguished¶91012
Rahul Jain and Anr. Vs. Shri Pradeep Kumar and Ors. (MANU/DE/9272/2006)
1 provisions across 1 enactments
Hareram Singh And Another
Ram Dayal Singh And Another
Anjani Kumar Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
