Soumen Sen, J.—A Division Bench of this Court in National Highway Authority of India v. M/s. B. Seenaiah & Company (Projects) Limited held that an Additional District Judge has no jurisdiction to decide an application under the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "1996 Act") as the Court of Additional District Judge is not ''Court'' within the meaning of the said Act. The said judgment was noticed in West Bengal Housing Infrastructure Development Corporation Limited v. M/s. Impression. The later Division Bench, however, held that the Court of an Additional District Judge is ''Court'' within the meaning of Section 2(1)(e) of the 1996 Act.
2. These conflicting judgments have resulted in this reference.
3. The short question that falls for consideration before the Larger Bench is whether the Court of the learned Additional District Judge is a Court within the meaning of Section 2(1)(e) of the 1996 Act.
4. The learned Advocate General appearing on behalf of the petitioner submits that the decision in National Highway Authority of India (supra) is not a correct interpretation of the law on this point and the law laid down by the later judgment in West Bengal Housing Infrastructure (supra) is the correct view being consistent with the views expressed by most of the High Courts on this point.
5. The learned Advocate General has referred to Articles 233 and 236 of the Constitution of India, Sections 3,4,8,9 and 20 of the Bengal, Agra & Assam Civil Courts Act, 1887 (hereinafter referred to as the "Civil Courts Act"), Sections 3 and 24 of the Code of Civil Procedure.
6. The learned Advocate General has argued that a conjoint reading of the aforesaid provisions makes it clear that the Additional District Judge who is exercising the same jurisdictional power as that of the "Principal Civil Court of Original Jurisdiction" does not stand excluded from the definition clause. It is submitted that the test to find out whether the Additional District Judge exercising the same power as that of the District Judge would be whether the said Additional District Judge is a Civil Court inferior to a principal Civil Court. It is submitted that Articles 233 and 236 of the Constitution of India clearly indicates that Additional District Judge is not a Civil Court of a grade inferior to a District Judge. The Court of the District Judge and the Court of Additional District Judge are both of equal grade. The Additional District Judge is not inferior or subordinate to the Court of a District Judge, save and except, certain powers are exclusively exercisable by the District Judge, namely, the power of transfer and withdrawal under Section 24 of the Code of Civil Procedure and the District Judge by virtue of Section 9 of the Civil Courts Act is having administrative control over all the Civil Courts within the local limits of his jurisdiction subject to the superintendence and control of the High Court. In support of the submission that the Additional District Judge is not a Civil Court of a grade inferior to a District Judge reliance was placed on Ajit Kumar Bhunia v. Sm. Kanan Bala Deyi reported at AIR 1960 Cal 565 (Paragraph 12) and M/s. Badrilal Jodhraj & Sons Indore v. Girdharilal & Anr. reported at AIR 1988 MP 24 (Paragraph 13).
7. It is submitted that a careful scrutiny of Section 2(1)(e) of the said Act would clearly show that it does not confer jurisdiction to entertain any application under Part I of the said Act upon the Court of District Judge exclusively in a District. The definition as given is an inclusive definition and the Civil Court not of a grade inferior to the principal Civil Court of original jurisdiction in a district having jurisdiction to decide the question forming the subject-matter of arbitration would be competent to decide an application for setting aside of the award as also an application under Section 9 of the Arbitration and Conciliation Act. There is no requirement under the Act that an application under Section 9 of the said Act if filed before the Court of District Judge shall have to be disposed of by the District Judge himself. The said Section requires that it has to be "Principal Civil Court" in a district and does not stipulate a "Civil Judge" or a "District Judge" nor it is restricted to "District Judge" only. The said expression "Principal Civil Court of Original Jurisdiction" is not equivalent to "District Judge" or equates it with "District Judge" and the concept of "persona designata" is absent in Section 2(1)(e). On interpretation of Section 2(1)(e) of the Arbitration and Conciliation Act, 1996 to show that "Principal Civil Court of Original Jurisdiction" in a district would include "Additional District Judge" and the statute does not contemplate "District Judge" and to act as a persona designata, reference was made to M/s. Badrilal Jodhraj & Sons Indore v. Girdharilal & Anr. reported at AIR 1988 MP 24 (Paragraph 8), Prasanna Kumar Roy v. Pradip Kumar Roy reported at 1986 (2) CHN 102 (Paragraph 6, 9 and 10) and a decision cited by the respondents, namely, Maheshwari Brother Limited v. National Highways Authority of India reported at 2006 (3) CLT 154 (Paragraph 52).
8. The learned Advocate General submitted that a careful reading of Section 2(e) of the Act would show that it does not confer jurisdiction to entertain any application under Part I of the said Act upon the Court or District Judge exclusively in a District. The definition as given provides that such an application can be made to a Principal Civil Court in a District which exercises its original jurisdiction in a District and also has a jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit but shall in no case be a Civil Court of a grade inferior to such Principal Civil Court.
The learned Advocate General submits that the Principal Civil Court of Original Jurisdiction in a District does not include any Civil Court of a grade inferior to such Principal Civil Court or any Court of Small Causes, in other words, it categorically excludes a Civil Court of a grade inferior to such a Principal Civil Court. The definition of Court under Section 2(1)(e) of the 1996 Act is intended to confer the power on the highest judicial authority in the District and with that object in mind the term ''Court'' is to be interpreted. It is submitted that what is more important in deciding whether the Additional District Judge is a Principal Civil Court of Original Jurisdiction is to find out if it is a grade inferior. The expression "does not include any Civil Court of a grade inferior to such Principal Civil Court" in the definition of "Court" is the decisive factor.
9. The learned Advocate General has referred to few decisions including a Full Bench decision of our Court in Rup Keshwar Lal v. Jaijai Bibi & Ors. reported at AIR 1916 CAL 561 and submitted that after receiving a matter if the District Judge assigns the same for hearing to an Additional District Judge in terms of Section 8(2) of the Civil Courts Act, the latter will have the same powers and exercise the same jurisdiction to deal with it as a District Judge. The other decisions relied upon for the said propositions are Ajit Kumar Bhunia v. Sm. Kanan Bala Deyi reported at AIR 1960 Cal 565 (Paragraph 12), Anadi Mohon Ghose & Ors. v. Rabindra Nath Dutta & Ors. reported at AIR 1962 Cal 265, Prasanta Kumar Giri & Ors. v. Gangadhar Raut reported at 1977 CHN 358, Prasanna Kumar Roy v. Pradip Kumar Roy reported at 1986 (II) CHN 102.
10. It is submitted that it would be clear from the aforesaid judgments that the Courts have taken a consistent view while interpreting "Principal Civil Courts" in other Acts and Statutes having the same and/or similar language as Section 2(1)(e) of the Arbitration and Conciliation Act, 1996, to mean and include "Additional District Judge" in the definition of "District Judge".
11. Per contra, Mr. Ajay Debnath, the learned Counsel appearing on behalf of the respondents submits that the expression "Principal Civil Court of Original Jurisdiction in a District" only means District Judge as he is the highest judicial officer in the District. The said expression is referable to the ''District'' as defined in the Code of Civil Procedure and to the ''District Judge'' as defined in General Clauses Act respectively. It is submitted that the District Judge is a Judge of a "Principal Civil Court of Original Jurisdiction" and obviously it excludes all other Judges including the Additional District Judge from the point of view of the definition of ''Court'' in Section 2(1)(e) of the Arbitration and Conciliation Act.
12. In absence of any definition of "District Judge" in Section 2(1)(e) of the Arbitration and Conciliation Act, 1996, the Court shall lean and fall back on the definition of ''District Judge'' in the General Clauses Act which defines ''District Judge'' as the Judge of a "Principal Civil Court of Original Jurisdiction" to exclude a High Court in exercise of its ordinary or extraordinary civil jurisdiction. The learned Counsel referred to Article 236(B) of the Constitution of India and submits that the expression ''judicial service'' as defined in the said Article postulates a hierarchy of the Court with a District Judge as the head and other judicial officers are only subordinate to him. The learned Counsel in this regard has relied upon the following decisions:-
i) AIR 1930 Madras 779 (In re, Kappuswami Nayagar);
ii) AIR 1967 Madras 381 (The Daily Calendar Supplying Bureau, Sivakasi v. The United Concern);
iii) AIR 1980 SC 892 (Vishesh Kumar v. Shanti Prasad);
iv) (1997) 11 SCC 670 (Gyan Prakash v. Union of India & Ors.);
v) (1998) 2 SCC 688 (State of Maharashtra v. Labour Law Practitioners'' Association and Ors.);
vi) AIR 1980 Gauhati 31 (Golok Chandra v. Dev Kanta);
vii) AIR 2010 Cal 155 (Kapil Kumar Katyal & Anr. v. Parveen Chandra Bhanjdeo);
viii) (2002) 1 CHN 438 (Hukum Raj Sajjan Rajkumkat v. E''1 Dorado Guarantee Limited);
ix) (2004) 1 CHN 660 (Gour Chandra Dutta v. State of West Bengal & Anr.);
x) 2003 (3) CLT (H.C.) 281 (Kolkata Hotel Private Limited v. United Builders & Anr.);
xi) 2006 (3) CLT (H.C.) 154 (Maheshwari Brothers Ltd. v. National Highways Authority of India);
xii) AIR 1998 All 313 (M/s. I.T.I. Ltd. Allahabad v. District Judge, Allahabad & Ors.).
"The roots of the present lie deep in the past". This prophetic observation by Sir William Anson in his Tagore Law Lectures on the History and Constitution of the Courts and Legislative Authorities in India has relevance to decide the issue raised in this reference.
13. The existence of the inferior or subordinate Civil Courts owes its existence to the Indian Councils'' Act. The legislature reconstituted under the said Act was vested with the complete power of legislation over the non-regulation provinces. It was in exercise of such power courts were created whose powers and jurisdiction were based upon its own enactments. In 1871 it was found expedient to consolidate and amend the law relating to the District and Subordinate Civil Courts in the lower and North-western Provinces of the Presidency of Bengal. Accordingly, Act VI was passed by the Governor-general in council, called the Bengal Civil Courts Act 1871. Act XII of 1887 was subsequently passed consolidating the law relating to these courts and to the Courts of Assam. It was under this later Act that the Judges of those Courts of which there are four classes now, exercise their jurisdiction. The District Judge, subject to the superintendence of the High Court, was invested with the general control over all the Courts in his district. The judge or subordinate judge has jurisdiction to try all original suits subject to the provisions of the Civil Procedure Code. The District Judge has an appellate jurisdiction in reference to the decrees and orders of subordinate Judges and munsifs except where the amount or value of the subject-matter in dispute exceeds Rs. 5,000 in which case the appeal lies to the High Court. The High Court also entertains appeals from decrees and orders of District and Additional Judge. District Judges were the principal Courts of original civil jurisdiction in the district and are also courts of Appeal from all decrees and orders passed by subordinate courts except from decrees above Rs. 5000/- in which case the appeal lies to the High Court. There are also joint Judges and Judges having concurrent jurisdiction with District Judge but doing such civil business only as they receive from the District Judge or the High Court. The Bengal, Agra and Assam Civil Courts Act, 1887 was a consolidating and amending statute relating to Civil Courts in Bengal, the North Western Provinces and Assam as it was felt necessary to enact such legislation which is commensurate with the need relating to Civil Courts in Bengal, Western Provinces and Assam. The said Act continued to remain in the Statute Book even after independence and by and large known as Civil Courts Act regulating the composition and functioning of Civil Courts supplementing the Code of Civil Procedure. Similar legislation were in existence for other provinces of British India and they also continued to exist to regulate the functioning of Civil Courts. The said Act of 1887 was first adopted by the Government of India (Adaptation of Indian Laws) Order 1937 and after independence The Adaptation of Laws Order 1950 thereby framing legislation governing the composition and functioning of Civil Courts in Bengal. Thereafter the said statute was amended from time to time by the State Legislature.
14. The history of the evolution of the Civil Courts shows that District Judge is the highest and superior-most in a District with wide variety of powers. The various legislations both prior and subsequent to the 1887 Act recognise existence of District Judge and Additional Judges.
15. After Independence and framing of the Constitution the District Judge is appointed under Article 233 of the Constitution. In Article 236 of the Constitution, the expression ''District Judge'' has been defined to include amongst others, the Additional District Judge. Article 233 read with Article 236 of the Constitution makes it clear that the Court of the Additional District Judge is not inferior to the Court of the District Judge in any manner.
Section 3 of Chapter II of the said Act of 1887 was legislated for the purpose of constitution of classes of Courts and Subordinates. Section 3 of the Bengal, Agra and Assam Civil Courts Act, 1887 (hereinafter referred to as the Civil Courts Act) contemplates four classes of Courts, namely:-
(1) The Court of the District Judge;
(2) The Court of the Additional District Judge;
(3) The Court of the Civil Judge (Senior Division);
(4) The Court of the Civil Judge (Junior Division).
Section 8(1) and 8(2) of the Civil Courts Act provides as follows :-
"S.8 "Additional Judges.- (1) When the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the [State Government] may, [having consulted] the High Court, [ * * * *] appoint such Additional Judges as may be requisite.
(2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them, and, in the discharge of those functions, they shall exercise the same powers as the District Judge."
According to Section 2(4) of the Code of Civil Procedure, 1908 of the expression "District" means the local limits of the jurisdiction of a principal court of original jurisdiction (hereinafter called a district court) and includes the local limits of the Ordinary Original Civil Jurisdiction of a High Court.
16. The State Government under Section 8(1) of the Bengal, Agra and Assam Civil Courts Act after consulting the High Court may appoint additional Judges when business pending before any District Judge requires the additional judges for its speedy disposal. Sub-section (2) of Section 8 of the Bengal, Agra and Assam Civil courts Act provides that additional judges appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him and in the discharge of those functions, he shall exercise the same powers as the District Judge. It is settled law that on transfer or assignment of a particular case to him by the District Judge under S 8(2) of the said Act, the Additional District Judge has all the powers, authority and jurisdiction of the learned District Judge himself so far as the case transferred to him. (see Full Bench decision in the case of Rup Kishore v. Mt. Neman Bibi reported at 19 CWN 791 : 1916 Cal 561, Mohabir Rahaman v. Hazi Abdur Rahaman reported at ILR 48 Cal 53, Lal Behari v. Akhil Chandra reported at 27 CWN 315 and also the other cases mentioned at Page 250 of the decision of P.N. Mukherjee and Niyogi, J.J., in the case of Ajit Kumar Bhunia v. Kanan Bala Devi reported at 64 CWN 246).
17. The Additional District Judge has been conferred the same status as a District Judge by the Constitution of India and an Additional District Judge exercises all the powers of a District Judge as might be delegated to the Additional District Judge, by the District Judge, as provided in Section 8(1) and 8(2) of the Civil Courts Act quoted above.
Section 4 of the Civil Courts Act, empowers the State Government to alter the number of District Judges, Civil Judges (Senior Division) and Civil Judges (Junior Division) now fixed.
18. The exclusion of Additional District Judge in Section 4 also indicates that the Additional District Judges are considered to be District Judges, in view of the definition of District Judge in Article 236 of the Constitution.
19. Section 9 of the Civil Courts Act provides that, subject to superintendence of the High Court, the District Judge shall have administrative control over all the Civil Courts under the Civil Courts Act within the local limits of its jurisdiction. A combined reading of Articles 233 and 236 of the Constitution of India read with Sections 3, 4, 8 and 9 of the Civil Courts Act makes it patently clear that the District Judge has additional administrative powers over the Additional District Judge for example, the power of allocation of business amongst Additional District Judges.
20. The appointment of Additional District Judges is made under Article 233 of the Constitution, read with Sections 4, 6 and 8 of the Bengal, Agra and Assam Civil Courts Act (or corresponding provisions of the sister enactments in case of other States). The appointment, as far as a particular State is concerned, is made by the particular State Government (Governor) in consultation with the High Court of that particular State. Section 4 of the Bengal, Agra and Assam Civil Courts Act refers to the fixation of the cadre strength and Section 6 to the filling up of vacancies. In Section 6, particular mention is made of "Additional District Judges" and Section 8 provides for "Additional Judges" to aid the District Judge in the disposal of the business before him. Reading the three sections together in the light of the Constitution Article 233, there can be little doubt that the "Additional District Judges" are Additional Judges within the meaning of Section 8 and their appointment or purported appointment under that section is really their posting in a particular District to aid the particular District Judge in the disposal of the business, pending before him.
21. Chapter VI of Part VI of the Constitution of India relates to subordinate Courts of the State, while Article 233 deals with appointment of District Judges in the State. Article 236 of the Constitution interprets the expression ''District Judge'', which includes Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, as well. This interpretation of the expression ''District Judge'', as given in Article 236 of the Constitution, also indicates that there is no subordination as between an Additional District Judge to exercise revisional powers under Section 115, C.P.C (as amended) in respect of orders passed by the court of an Additional District Judge.
22. Section 20 of the Civil Courts Act makes it clear that if a decree or order of a District Judge is not appellable to High Court then from a decree and/or order of Additional District Judge no appeal would lie to the High Court which makes it abundantly clear that for the purpose of exercising judicial power, the Additional District Judge is equivalent and/or equated to a District Judge. However, the General Administrative Power rests with the District Judge in terms of Section 9 of the Civil Courts Act as also the general power and jurisdiction of withdrawal under Section 24 of the Code of Civil Procedure.
23. The position of the additional Judge is thus equated to that of the District Judge of the district having identical powers as may be conferred.
24. There is no difference between the Court of the District Judge and the Court of the Additional District Judge in relation to judicial functions. Section 3 of the Code of Civil Procedure, 1908 provides that for the purposes of the code, a District Court is subordinate to the High Court and every Civil Court of a grade inferior to that of the District Court and every Court of Small Causes is subordinate to the High Court and District Court.
25. Under the Code of Civil Procedure the Court of the Additional District Judge is not a Civil Court of a grade inferior to that of the District Court. Had the Court of the Additional District Judge been a Civil Court of a grade inferior to the District Court, the Second part of the Section would probably have read ".....and every other Civil Court and every Court of Small Causes is subordinate to the High Court and the District Court". On the other hand, Sub-section 3 of Section 24 provides that for the purpose of the said section, that is for the express purpose of transfer of proceedings from one Court to another, the Court of Additional and Assistant Judges are to be deemed to be subordinate to the District Court. This also makes it clear that for all other purposes, Courts of Additional District Judges are not to be deemed to be subordinate to the District Court. If Additional District Judges were to be deemed subordinate to the District Court for all purposes, it would not have been necessary to insert Section 24(3) in the Code of Civil Procedure.
26. In our view, had it been the legislative intent that Court should mean only the Court of the District Judge and not Additional District Judge, the legislature would perhaps specifically have used the expression "District Court" and not "principal Civil Court" in a district and would perhaps have expressly excluded any Court other than the District Court from the definition of Court in Section 2(1)(e) of the 1996 Act.
27. ''Court'' has been defined in the 1996 Act as the principal Civil Court of original jurisdiction in a district. If the Additional District Judge is empowered to exercise all powers of a District Judge, the Court of the Additional District Judge is as much the principal Civil Court of original jurisdiction as the Court of the District Judge.
28. Had it been the legislative intent that Additional District Judges should not decide applications under the 1996 Act, the expression "Civil Court" would not have been used. The legislature would perhaps have used the expression "Court of District Judge" and would expressly have excluded all other Civil Courts, which has not been done.
29. The word ''Court'' appears both in Sections 9 and 42 of the said Act of 1996. The aforesaid provisions read:
"9. Interim measures, etc. by Court - A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Court -
.....
(e) Such other interim measure of protection as may appear to the court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.
42. Jurisdiction - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court."
30. A perusal of Section 42 of Arbitration Act reveals a clear acknowledgement by the legislature, that the jurisdiction for raising a challenge to the same arbitration agreement, arbitral proceeding or arbitral award, could most definitely arise in more than one court simultaneously. To remedy such a situation Section 42 of the Arbitration Act mandates, that the court wherein the first application arising out of such a challenge is filed, shall alone have the jurisdiction to adjudicate upon the dispute(s), which are filed later in point of time. The above legislative intent must also be understood as mandating, that disputes arising out of the same arbitration agreement, arbitral proceeding or arbitral award, would not be adjudicated upon by more than one court, even though jurisdiction to raise such disputes may legitimately lie before two or more courts.
31. Section 42 of the said Act giving rise to a situation where the Court of District Judge alone will be required to exercise every jurisdiction once an application is made before it, will make that Court somewhat like persona designata who will not have the power to follow the ordinary incident of procedure for transfer of a proceeding before a Court of similar grade for the purpose of disposal even in exercise of power under Sub-section (2) of Section 8 read with Section 9 of Bengal, Agra, Asam Civil Courts Act.
32. Merely because an application is filed before the District Judge, it does not affect the jurisdiction of the District Judge to have the application being tried by an Additional District Judge on transfer and/or assignment. When a Special Act (governed by that Act) confers jurisdiction on an established Court as distinguished from persona designata without any areas or limitation then the ordinary incident procedure of that Court including right of appeal or revision against its decision is attracted. The interpretation of Section 42 of the said Act would effect that the Court of District Judge alone would be required to exercise other jurisdiction once an application is made before it would make that Court somewhat like persona designata who would not have the power to follow the ordinary incident of procedure for transfer of a proceeding before a Court of similar grade for the purpose of disposal even in exercise of power under sub-section (2) of Section 8 read with Section 9 of the Civil Courts Act.
33. A personal designata is ''a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character''.
34. The power conferred on the Chief Justice under Section 11(6) of the Act is not as ''persona designata'' as on ceasing to be a Chief Justice, the person referred to in this Section could not exercise the power under it.
35. A persona designata is: ''A person pointed out or described as an individual, as opposed to a person ascertained as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. (The Law Lexicon by P. Ramanatha Aiyar)
36. The learned Counsel for the respondents has referred to Sections 9 and 42 of the Arbitration and Conciliation Act, 1996 to demonstrate that the Court contemplated under these Sections is the District Judge referable under Section 2(1)(e) of the Arbitration and Conciliation Act, 1996 and in view thereof the applications made in the Court of District Judge by the parties can only be heard by the District Judge as "that Court alone" is vested with the exclusive jurisdiction and the District Judge for the disposal of matters in connection therewith cannot transfer any application filed under Part-I of the Arbitration and Conciliation Act as well as the proceedings that were initiated before the Court of District Judge to any other Court even if it is not a Civil Court of a grade inferior to the Court of District Judge.
37. ''Court'' means the principal civil court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal civil court, or any court of Small Causes.
38. On a conjoint reading of Section 2(1)(e) read with Section 42 of the Arbitration and Conciliation Act and Section 8 of the Civil Courts Act, it is clear that the Additional District Judge who is exercising the same jurisdictional powers as that of the Principal Civil Court of original jurisdiction does not stand excluded from the definition clause. The last limb of Section 2(1)(e), ''but does not include any civil court of a grade inferior to such principal civil court, or any court of Small Causes'' is supplementary to the first limb of the section which reads that ''court means the principal civil court of original jurisdiction in a District, and includes the High Court in exercise of its ordinary civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of the suit''. The intention of the Legislature is not to exclude the Additional District Judge who is exercising the same judicial powers as that of the Principal civil court of original jurisdiction in a District. The court which has been excluded from the purview of Section 2(1)(e) is the civil court of a grade inferior to the Principal civil court, or any court of Small Causes. Additional District Judge who is exercising jurisdictional function is not inferior in grade to that of the Principal civil court of original jurisdiction. The words "does not include any civil court of a grade inferior to Principal civil court" means statutorily incompetent to hold or exercise equal powers to that of Additional District Judge. Additional District Judges are not statutorily incompetent or inferior to the Principal District Judge but on the other hand, they exercise equal judicial powers. Only, if the Court is judicially inferior that it is a Court over which the Court of the Principal District Judge has appellate jurisdiction, then only it can be said that the Additional District Judge is of a grade inferior to the Principal District Judge.
39. The word ''Court'' within the meaning of Section 2(1)(e) means a court which is competent under law to decide the question forming the subject-matter of arbitration. Admittedly, no appeal is provided against the judgment of Additional District to the Principal District Judge of the District. When we read the provisions of the Civil Courts Act, it becomes clear that there is no distinction between the Principal civil court of original jurisdiction, i.e., the Principal District Judge, and Additional District Judge. Both the Principal civil court of original jurisdiction as well as the Additional District Judge have the jurisdiction to entertain, try and dispose of all suits and all such proceedings of civil nature which come under their jurisdiction. By virtue of the provisions of Civil Courts Act, the Principal civil court of original jurisdiction can distribute and allot cases filed before him to Additional District Judges in the District which is purely an administrative matter. That does not mean that the Additional District Judges would become a grade inferior to the Principal civil court of original jurisdiction.
40. The dictionary meaning of inferior is "lower in any respect, subordinate, a person who is lower in rank or station". According to Black''s Law Dictionary, inferior means "One who, in relation to another, has less power and is below him; one who is bound to obey another. The term may denote any Court subordinate to the chief appellate Tribunal in the particular judicial system (e.g. Trial Court); but it is also commonly used as the designation of a Court of special, limited, or statutory jurisdiction".
An ''inferior'' would mean less in power or authority; subordinate.
An "inferior" is one who in relation to another has less power and is below him; one who is bound to obey another. He who makes the law is the superior; he who is bound to obey it the inferior. It means it was inferior that is a Court over which the Court has appellate jurisdiction.
The word "grade" used in Section 2(e) is suggestive of status and importance and it does not refer to a class or particular class. Keeping a literal meaning of the words "inferior" and "grade" in view, if the expression "but does not include any civil court of a grade inferior to such principal court" is read, in our opinion, it means no court subordinate/inferior to the principal civil court of ordinary original civil jurisdiction in a district, would be covered within the meaning of "Court" as defined under Section 2(e) of the Act of 1996. Similarly, insofar as the word "principal" is concerned, according to Black''s Law Dictionary, it means chief; leading; most important or considerable; primary; original, Highest in rank, authority, character, importance or degree. In Law Lexicon the word "principal" is described to mean highest in rank, authority, character, importance, or degree; most considerable or important; chief; main (as) the principal officers of a government, the principal men of a State; the principal productions of a country, principal arguments in a case. The word "principal", thus, clearly indicates only one court being the highest in rank or chief.
41. In our opinion, a plain and literal reading of all the aforesaid words/expressions/terms employed in Section 2(e) clearly demonstrate the exact meaning of the term "court". It means the district court is the principal civil court of original jurisdiction in a district and not a civil court of a grade inferior to such principal civil court.
42. Upon careful reading of Section 2(1)(e) of the said Act it appears that it does not confer jurisdiction to entertain any application under Part I of the said Act upon the Court of a District Judge exclusively in a District. The definition as given provides that such an application can be made to a principal Civil Court in a District which exercises its original jurisdiction in a District and also has the jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit but shall in no case be a Civil Court of a grade inferior to such principal Civil Court. Therefore, by necessary implications the definition is also an inclusive definition and a Civil Court not of a grade inferior to the principal Civil Court of original jurisdiction in a District having jurisdiction to decide the question forming the subject-matter of arbitration shall also have the jurisdiction to decide an application under Section 9 of the said Act.
43. The learned Counsel for the respondent has heavily relied upon the decision of the Hon''ble Supreme Court in State of Maharashtra v. Atlanta reported at 2014 (11) SCC 619 and State of West Bengal v. Associated Contractors reported at 2015 (11) SCC 32.
44. We have carefully considered the said decisions.
45. In Atlanta (supra) Section 2(1)(e) was construed and it was held that where a High Court exercises ordinary original civil jurisdiction over a district, the High Court will have preference to the Principal Civil Court of original jurisdiction in that district. The reasons for the conclusion appear to be firstly, the very inclusion of the High Court in the definition would be rendered nugatory if the above conclusion was not to be accepted, because the Principal Civil Court of Original Jurisdiction in a District is always a court lower in grade than the High Court, and such District Judge being lower in grade than the High Court would always exclude the High Court from adjudicating upon the matter. Secondly, the provisions of the Arbitration Act leave no room for any doubt that it is the superior-most court exercising original jurisdiction which has been chosen to adjudicate disputes arising out of arbitration agreements. In Associated Contractors (supra) the view taken in Atlanta (supra) was approved. The Apex Court construed "Court" as defined in Section 11 of the Act, 1996 to include a delegatee of the Chief Justice of High Court following the ratio laid down in SBP and Co. v. Patel Engineering Ltd. reported at 2005 (8) SCC 618. The said decision in our view does not advance the cause of the respondents. The Chief Justice is the master of the roster. The administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is the primus interpares, i.e. the first amongst the equals. The Chief Justice in exercise of such administrative control distributes and assigns matters to different persona judges as the District Judge does in exercise of its administrative power under Section 9 of the Civil Courts Act, 1887 subject to the superintendence and control of the High Court.
46. In Rup Keshwar Lal v. Jaijai Bibi & Ors. reported at AIR 1916 CAL 561 the Full Bench of this Court was considering a plea taken by the appellant that under Section 51 of the Probate and Administration Act, the District Judge alone has jurisdiction in granting letters of administration in all cases within his District.
47. The expression "District Judge" is defined in Section 3 of the Probate and Administration Act to mean the Judge of a principal Civil Court of original jurisdiction. An additional Judge is prima facie a Judge of this description. Our attention is invited, however, to Section 8 sub-Section (2) of the Bengal Civil Courts Act, 1887, which provides that an Additional Judge appointed under sub-Section (I) shall discharge any of the functions of a District Judge which the District Judge may assign to him, and, in the discharge of those functions, he shall exercise the same powers as the District Judge. The appellant argues that as the District Judge transferred only this particular case for trial to the Additional Judge, and did not assign to him his functions as a District Judge in respect of any specified class of cases, the Additional Judge was not competent to hear the case. In support of this contention, reliance has been placed upon the decision of Muhammad Musa v. Abdul Hasan Khan, AIR 1914 Cal 616 which apparently supports the argument of the appellant. The view taken in this case, however, is opposed to that adopted in the case of Rakhal Chandra Tewari v. Secretary of State for India in Council. In that case, it was contended on behalf of the appellant, that under Section 8 of the Bengal Civil Courts Act, the District Judge had power only to assign certain functions to the Additional District Judge, that is to say, that he could assign to him particular classes of cases but could not transfer to him any particular case for decision. Rampini, J., in answer to this contention stated that he was unable to accede to this view of the matter, and Woodroffe, J., expressed his concurrence with Rampini, J. But it has been suggested that the case of Rakhal Chandra Tewari v. Secretary of State for India in Council is distinguishable, inasmuch as there the question arose in relation to the transfer of an appeal, as to which provision is made in sub-Section (2) of Section 22 of the Bengal Civil Courts Act. The distinction, however, is really not material because under sub-Section (2) of Section 22, a District Judge is competent to transfer an appeal to a Court under his administrative control competent to dispose of it; and whether the Additional Judge is or is not competent to dispose of an appeal transferred to him by the District Judge, must depend upon the interpretation to be placed upon sub-Section (2) of Section 8. Consequently, there is a clear conflict of judicial opinion as to the true scope and effect of sub-Section (2) of Section 8.
48. The Full Bench observed that if it is competent for a District Judge under sub-Section (2) of Section 8 to assign his functions to an additional Judge in respect of a class of cases, there is no intelligible reason why he should not do so in respect of a particular case comprised within that class.
49. In Fountain Head Developers v. Maria Arcangela Sequeira reported at 2007 (2) Arb. LR 362 (Bombay) the Full Bench of the Bombay High Court on consideration of the relevant provisions of the Arbitration and Conciliation Act and the Civil Courts Act observed:-
7. The definition of "Court" under Section 2(e) could be divided in the following manner: (i) The principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction; (ii) having jurisdiction to decide the questions forming the subject-matter of the Arbitration if the same had been the subject-matter of a suit; and (iii) it does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes. A careful glance at the definition of "Court" in the Act of 1996 and at the definition of "Court", occurring in the Act of 1940 would manifestly and very clearly demonstrate that in the Act of 1940 "Court" was defined to mean any Civil Court having Jurisdiction to decide the questions forming the subject-matter of the reference as if the same had been the subject-matter of a suit. While under the Act of 1996, the meaning of the term "Court", was, however, narrowed down and confined to be "the principal Civil Court of the original jurisdiction in a District" and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any civil court of a grade inferior to such Principal Civil Court or any Small Causes Court. The term "Court" has been used in Sections 9, 14(2), 34, 36, 37, 39, 42 and 43 of part one of the Act of 1996.
50. In Dr. Pratap Singh Hardia v. Sanjay Chawrekar reported at 2009 (2) Arb. LR 311 (MP) (DB) Paragraphs 11, 12, 13, 14, it was observed as follows:-
"11. Section 8 of the Bengal, Agra and Assam Civil Courts Act, 1887 is also taken note of in the aforesaid judgment by the Allahabad High Court and as per Section 8 of the Bengal, Agra and Assam Civil Courts Act, 1887, the District Judge can take aid of additional Judges for speedy disposal of the cases before him and the State Government, may having consultation with the High Court appoint such additional Judges as may be requisite. Sub-section (2) of Section 8 of the Bengal, Agra and Assam Civil Courts Act, 1887 provides that the Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them and in discharge of those functions, they shall exercise the same power as the District Judge. Considering this language the Allahabad High Court has held that the expression ''in the discharge of those functions they shall exercise the same power as a District Judge'' used in Sub-section (2) of Section 8 of the Bengal, Agra and Assam Civil Courts Act, 1887 is not potent enough to confer in the Court of an Additional District Judge the status of the principal Civil Court of original jurisdiction in a district.
"12. This is not the situation in the State of Madhya Pradesh. In the State of Madhya Pradesh, M.P. Civil Courts Act, 1958 is applicable. Section 7 of the M.P. Civil Courts Act, 1958 (hereinafter, referred to as ''Civil Courts Act'') defines the words ''Principal Civil Court of original jurisdiction. It means that the Court of the District Judge shall be the Principal Civil Court of original jurisdiction in the civil district. Sub-section (2) of Section 7 of the Civil Courts Act further provides that an Additional District Judge shall discharge any of the functions of a District Judge, including the functions of Principal Civil Court of original jurisdiction, which the District Judge may, by general or special order, assign to him and in the discharge of such functions he shall exercise the same power as the District Judge. Thus, this subsection clearly confers powers upon the Additional District Judge to discharge the functions of Principal Civil Court of original jurisdiction.
13. Section 8 of the Civil Courts Act deals with the appointment of additional Judges. As per this section, the Additional District Judge shall exercise the jurisdiction of the Court to which he is appointed and the powers of the Judge thereof, subject to any general or special orders of the authority by which he is appointed as to the Class or Value of the suit which he may try, hear or determine.
14. Section 15 of the Civil Courts Act empowers the District Judge to prepare memo to distribute his business."
51. In Valliappa Software Technological Park (Pvt.) Ltd. v. C. Sundaram & Ors. reported at 2002 (1) Arb. LR 530 (Paragraphs 8 to 15) the Hon''ble Court considered similar provisions in Bangalore City Civil Courts Act, 1979 and have succinctly discussed the issue in Paragraph 12 of the said report which reads:-
"12. A reading of these provisions make it clear, that Additional City Civil Judges are not subordinate or inferior to the Principal City Civil Judge. Senior most Judge among the City Civil Judges would be appointed as the Principal City Civil Judge. If for any reason the Principal City Civil Judge is unable to perform his duties and that office become vacant, the senior most City Civil Judge shall be in charge of the said office. However, the power exercised by the Principal City Civil Judge in the matter of arrangement and distribution of work is derived by the general or special orders of the High Court from time to time. By virtue of such orders passed by the High Court, the Principal City Civil Judge would make such arrangement as it thinks fit in the distribution of the business of the City Civil Court among the Judges thereof. These provisions make it abundantly clear insofar as judicial work is concerned, there is no distinction between the Principal City Civil Judge and the Additional City Civil Judge. All of them belonged to the same cadre and senior most among them is appointed as the Principal City Civil Judge and each of the Judges have the jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature and arising within the City of Bangalore except suits or proceedings which are cognisable by the High Court or the Court of Small Causes. Therefore, it is clear in the matter of judicial work, all the City Civil Courts have the same jurisdiction, notwithstanding the fact one of the Court is presided over by a Principal Civil Judge and other Courts are by Additional Civil Judges. Only by way of general or special orders of the High Court the Principal City Civil Judge may make such arrangement as it thinks fit for the distribution of the absence of the City Civil Court. By virtue of this power the Principal City Civil Judge has to distribute and allot the cases filed in the City Civil Court among other Judges. It is purely an administrative matter. By exercise of this power, the Principal City Civil Judge and his Court would not become a Judge or Court superior to other City Civil Courts presided by Additional Judges, nor the other City Civil Courts or other Additional Judges would become a grade inferior to such Principal City Civil Judge or the Court presided over by him. As the Court which is presided by the Principal City Civil Judge and the Additional City Civil Judges are of the same rank and by virtue of the deeming provision contained in Section 3(2) of BCCC Act each of those Courts is a Principal Civil Court of original jurisdiction of the District and have the jurisdiction to entertain the arbitration matters arising under the Act of 1996."
52. In M/s Reshmi Construction Builders & Contractor v. NTPC Ltd. & Anr. reported at 2011 (1) KerLJ 493 and Muralimohan C.K. v. M/s Ashok Finance Corporation reported at 2008 (2) KLJ 1016, the Kerala High Court considered Section 2(e) of the Act of 1996 and similar provisions in the Kerala Civil Courts Act, 1957 and opined that the Government is not establishing Additional District Court in the Civil District but only appoints more District Judges additionally to the District court for such period as is deemed necessary depending on the business pending before the District Court. The definition of "Court" in Section 2(e) of the Act of 1996 is not the District Judge meaning thereby Judge of the District Court but the Principal Civil Court of Original Jurisdiction which is the District Court.
53. In Muralimohan (supra) the Kerala High Court was considering whether the District Judge could make over the execution petition to the Additional District Judge in terms of Section 4(2) of the Kerala Civil Courts Act. Under Section 36 of the Arbitration Act provides that the award shall be enforced under the Code of Civil Procedure in the same manner as if it were a decree of the Court as defined in Section 2(e), if so the District Court has jurisdiction to enforce an award as if it were a decree. There is no provision restricting the powers of the District Judge while enforcing the award under the Act. Hence, the District Judge has all the powers while exercising the powers provided under Section 36 in enforcing the award as if it was a decree of Civil Court. Therefore, while enforcing the award as provided under Section 4(2) of the Kerala Civil Courts Act after making over the execution petition to an additional District Judge, the Additional District Judge by virtue of sub-section 2 of Section 4 has all the powers of the District Judge in discharge of the functions including the execution petition assigned to him by the District Judge.
54. In S.K.U.A.S.T and Other (supra) it was held that on a conjoint reading of Section 2(1)(e) with Section 42 of the Jammu & Kashmir Arbitration and Conciliation Act, 1997 and Section 16 of the Civil Courts Act it is clear that the Additional District Judge who is exercising the same jurisdictional powers as that of the Principal Civil Court of Original Jurisdiction does not stand excluded from the definition clause. The definition under Section 2(1)(e) of the J&K Arbitration and Conciliation Act, 1997 is pari matieria with the Central Arbitration Act, 1996. Similar is Section 16 of the Civil Courts Act as applicable to Jammu & Kashmir with Section 8 of the Bengal, Agra & Assam Civil Courts Act, 1887.
55. The only discordant note one could find is a decision of the Allahabad High Court in the case of I.T.I. Ltd., Allahabad v. District Judge, Allahabad reported at AIR 1998 All 313, in which on an emphasis upon the expression "Court" to mean the Principal Civil Court of original jurisdiction in a district defined under Section 2(e) of Act, it was held that the District Judge has no jurisdiction to transfer the application under Section 34 of the Arbitration Act to Additional District Judge. In arriving at the conclusion the Allahabad High Court in Paragraph 7 of the judgment has considered the Civil Courts Act 1887 and held that the expression "in the discharge of those functions they shall exercise the same power as a District Judge" used in sub-section 2 of section 8 of the Civil Courts Act 1887 is not potent enough to confer on the court of an Additional District Judge the status of ''the Principal Civil Court of original jurisdiction in a district''.
56. With due respect, we are unable to agree with the view in the light of sections 3, 8, 9 and 20 of the Bengal, Agra and Assam Civil Court Act, 1887.
57. It appears that the learned Judge of the Allahabad High Court has failed to take into consideration that section 2(e) of the Arbitration Act does not include any Civil Court of a grade inferior to such Principal Civil Court or any court of Small Causes. The Courts thus excluded from the purview of Principal Civil Court of Original jurisdiction in the district for the purpose of Arbitration Act are all Civil Courts of a grade inferior to Principal Civil Courts or any court of Small Causes. There is no doubt that the inclusive definition of Section 2(e) of the Arbitration Act does not refer to Additional District Judge but the same, in our view, is of no consequence since from sections 3 and 8 of the Civil Courts Act, 1887, it is not that the Additional District Court are being established but only more District Judges are appointed in a District Court when the business of such court so requires. The Court of Additional District Judge is not inferior to District Court. Whenever a statute requires for any specific purpose that the court of Additional District Judge is ''subordinate'' to District Court it does specifically state so. For instance, Section 24 of the Code of Civil Procedure confers on the District Court the general power of transfer and withdrawal of cases and sub-section 3(a) of the said provision states that, for the purpose of this section, courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court. That subordination of the court of Additional District Judge is for the limited purpose of general power of the District Court for transfer and withdrawal of Additional District Judge. The decision of I.T.I. Ltd. (supra) has not considered the effect of the exclusion of clause 2(e) of the Arbitration Act.
58. The learned Advocate General, in all fairness, has referred to a Full Bench decision of the Bombay High Court in the case of Fountain Head Developers (supra). In our view the Full Bench decision is of no assistance to Mr. Debnath''s clients. That was a case where an Additional District Judge had jurisdiction to decide a suit and dispose of the application or reference as were referred to it and the District Judge or the High Court according to the amount or value of the subject matter. The District Judge is, therefore, statutorily judicially inferior to the Principal District Judge. Similar provision is, however, absent in the Civil Courts Act, 1887. Under the 1887 Act, the jurisdiction exercised by the Principal Civil Judge and the Additional District Judge are same and the decrees and orders passed by the Additional District Judge are not appealable before the Principal District Judge.
59. In considering similar provisions in the West Bengal Land Reforms Tenancy Act, 1955 in Prasanth Kumar Giri & Ors. v. Gangadhar Raut reported at 1977 CHN 358, the Hon''ble Division Bench of this Court has categorically held that in discharging the judicial functions of a District, the Additional District Judge is equated to that of the District Judge having identical powers as may be conferred.
60. We have carefully examined the contention of the respondent, but we are unable to accept the same. We are of the view that the aforesaid decisions of the Apex Court have not taken any contrary view to almost an unanimous view of all the Courts on the question of jurisdiction of the learned Additional District Judges and on the effect of transfer (assignment) of cases to them by the learned District Judge under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act or under the corresponding or analogous provisions of sister enactments. The transfer or assignment in all these cases may well be brought under the aforesaid Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, or, in the case of sister enactments, under the corresponding or analogous provisions thereof, though Section 24 of the Code of Civil Procedure also has sometimes been referred to in this connection.
61. There is no dispute here that, under the aforesaid sections (Sections 8(2) and 24) the learned District Judge has the power to transfer or assign cases, pending before him, to an Additional District Judge, provided the latter is a competent court for the purpose and provided also there is nothing to the contrary in the particular statute, under which the particular action has been initiated. In either case, then, the only point will be whether the learned Additional District Judge is a competent court for the purpose of the particular case and whether there is anything in the particular statute, under which the proceeding in question has been taken or started, to prohibit or preclude such transfer of assignment and that question must be decided in the light of the Government Notification of his appointment and the relevant sections of the Bengal, Agra and Assam Civil Courts Act, namely, Sections 4, 6 and 8, and the aforesaid particular statute.
62. It is convenient to state here that, under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, or the corresponding provisions of sister enactments, as alluded to above, the transfer or assignment of business by the learned District Judge to the Additional Judges conferred with it the necessary power or jurisdiction to deal with the same. It is to be noted also that the Additional District Judges have always been taken to be "Additional Judges" under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act and, in all the cases, cited above, that position has been accepted and the matter has been dealt with on that footing. Clearly, also, that view is entirely right.
63. We are, therefore, of the view that the Court of the Additional District Judge is also the principal Civil Court in the District and accept the view taken by the Hon''ble Division Bench in West Bengal Housing Infrastructure Development Corporation Limited v. M/s. Impression. The view taken by National Highway Authority of India v. M/s. B. Seenaiah & Company (Projects) Limited would make the ''District Judge'' a persona designata which has never been the intention of the legislature.
64. The reference is disposed of by affirming the view in West Bengal Housing Infrastructure Development Corporation Limited v. M/s. Impression.
The reference is answered accordingly.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
I agree. - Manjula Chellur, Chief Justice.
Arijit Banerjee, J.—Later:
Since the review petition seeking review of the order of Justice Tapen Sen (as His Lordship then was) and Justice Indrajit Chatterjee is not along with the above reference, the review petition has to be placed before the Bench consisting of Justice Aniruddha Bose and Justice Indrajit Chatterjee.
Let the review petition be placed before the Bench consisting of Justice Aniruddha Bose and Justice Indrajit Chatterjee.
