The Bombay High Court, while deciding a reference submitted by a joint civil judge, Senior Division, Kolhapur, has upheld the vires of Section 28 A(1) of the Maharashtra Civil Courts Act, 1869.
The civil judge had opined that Section 28 A(1) of the Act of 1869 is invalid or inoperative in the light of Sections 265, 272, 286 and 295 of the Indian Succession Act, 1925.
This opinion was noted while hearing a miscellaneous civil application filed by one Swapnil Mole against Shantabai Mole under Section 276 of the Succession Act, for grant of probate of last will executed by deceased Dadaso Mole.
S.28 A(1) is regarding the high court’s power to invest civil judges with jurisdiction under certain Acts.
The said reference was submitted before the high court under Section 113 of the Civil Procedure Code and it came up before the bench of Justice SC Dharmadhikari and Justice PD Naik.
The court noted that although S.113 contemplates that any court may state a case and refer the same for the opinion of the high court, and the high court may make such order thereon as it thinks fit, the conclusion drawn by the referring judge is that the question has to be answered in affirmative.
The bench observed: “Apparently, the learned Judge is not seeking an opinion but assumes that the view expressed by him is correct and the same needs to be affirmed. This assumption is contrary to the language of Section 113 of CPC.”
Then Advocate General Rohit Deo submitted that the civil judge had erred in referring the issue before the high court as the issue was no longer res integra, as it had been dealt with by the high court in the case of Smt. Nola Janathan Ranbhise vs Union of India.
Deo also submitted that under Section 28A(1) of the Act of 1869, the high court has invested the civil judges with the power of district judges under the Succession Act in terms of paragraph 305 of Civil Manual.
There is a difference between “investment of power” and “delegation of power”.
In case of investment, a district judge exercises his power as a judge of original jurisdiction and not as a delegate of district judge, Deo said.
The court accepted this argument and observed: “We are of the opinion that there is no inconsistency between the provisions of Section 28A(1) of the Maharashtra Civil Courts Act, 1869 and Sections 265, 272, 286 and 295 of the Indian Succession Act, 1925.”
Thus, the opinion arrived at by the civil judge was held as erroneous and the reference was disposed of.
Read the Judgment here.