Authored By : B.K. Mullick, Atkinson

B.K. Mullick, J.

1. The petitioners in these three Rules are Legal Practitioners against whom proceedings under section 14 of the Legal Practitioners Act were taken by the Munsif of Samastipur. After the proceedings were taken, but before any evidence was recorded, the petitioners moved the District Judge for the transfer of the inquiry from the Court of the Munsif to some other Court. The District Judge, while holding that the was competent to order a transfer under section 24 of the Civil Procedure Code, found that the balance of convenience was in favour of the inquiry being held by the Munsif, and he accordingly declined, to transfer the proceedings from the file of the Munsif to that of any other officer. The petitioners then came to us and obtained these Rules directing the Munsif to show cause through the District Judge why the proceedings should not be transferred. Cause has now been shown, and learned Counsel on behalf of the petitioners has argued their cases very fully and ably before us.

2. The first point urged is, that the learned Munsif is wrong in maintaining that this Court has no jurisdiction to direct a transfer under section 24 of the Civil Procedure Code. Now, although the fact that the case of Purna Chunder Pal, In the matter of  27 C. 1023 : 4 C.W.N. 389 : 14 Ind. Dec. (N.S.) 671 was, in consequence of a difference between two Judges of a Division Bench, referred to a third Judge under section 575 of the Civil Procedure Code of 1882, may lead to the inference that in the opinion of the Calcutta High Court a proceeding under section 14 of the Legal Practitioners Act was subject to the provisions of the Civil Procedure Code, yet on a careful perusal of the three judgments passed in that case it is quite clear that the precise point whether the Civil Procedure Code was or was not applicable to a proceeding under section 14 of the Legal Practitioners Act was never considered. In that case two Judges of a Division Bench having disagreed, the Chief Justice referred the matter to a third Judge for final decision; and although in the order of reference mention is made of section 575 of the Civil Procedure Code of 1882, the point whether that section was really applicable to the proceeding was not raised or argued before any of the learned Judges. Giving my best consideration to the arguments advanced by the learned Counsel before us to day, I have no doubt that the Civil Procedure Code is not applicable to inquiries under section 14 of the Legal Practitioners Act. The learned Counsel relies upon section 141 of the Civil Procedure Code of 1908. In my opinion that section does not apply, for the simple reason that the disciplinary proceedings taken by the Munsif were not proceedings in a Court of civil jurisdiction. I am of opinion that section 141, Civil Procedure Code, does not contemplate an inquiry of an administrative nature, such as is prescribed by section 14 of the Legal Practitioners Act.

3. The learned Counsel then falls back upon section 107 of the Government of India Act of 1915, and he asks us in exercise of our powers of superintendence to interfere and to direct a transfer. Without expressing any opinion as to the applicability of section 107 I think it sufficient to say that in the case before us we ought not to interfere with the progress of an inquiry in which nothing final can be done by the learned Munsif.

4. But apart from that it is clear that we are precluded from interfering even if we wished to do so by the very terms of section 14 of the Legal Practitioners Act, which make it incumbent that the inquiry should be made by the presiding officer of the Court. The section leaves no room for the contention that the inquiry may be delegated or transferred to another officer who is not the presiding officer of the Court in which the malpractices complained of were committed.

5. In this view of the case I would discharge the rules without costs.

Atkinson, J.

6. Mr. Sinha, who argued this case with his usual candour and ability, admitted that the applications in these three cases were instituted under section 24 of the Code of Civil Procedure, and he said under that section these applications came under the words "other proceeding"; that they constituted in effect a proceeding which would give this Court jurisdiction to exercise its power of transferring the proceedings from one Court to another. He supported that argument by a reference to section 141 of the Code of Civil Procedure. But on reading section 141 of the Code of Civil Procedure, it appears to me obvious and plain that that section can have no reference whatsoever to a proceeding instituted under the Legal Practitioners Act of 1879. Section 141 is controlled in its operation and effect by the concluding words of the section, which limit its application to proceedings in any Court exercising civil jurisdiction. Those words are the key-note for the construction of the section itself. In my opinion, it is clear that a proceeding under the Legal Practitioners Act is not a civil proceeding. The intention of the Act of Parliament (sic) was to provide a procedure or remedy of a disciplinary character for practitioners practising in subordinate Courts. It provides a procedure to be followed, and nominates the person who should hold the inquiry and make the charge. It gives no power to inflict any sentence or penalty. It merely gives the power of recommendation, with a safeguard of a very wide right of appeal to the High Court upon the entire evidence that has been taken and upon the recommendations that have been made. The procedure under this Statute is, in my opinion, self-contained. It is neither criminal nor civil, but purely designed for the purpose of discipline in controlling the procedure and the conduct of practitioners practising in subordinate Courts.

7. Mr. Sinha, finding that the latter argument cannot be sustained, then falls back on section 107 of the Government of India Act, and relies upon the general power of superintendence which that section confers upon the High Court to support his present application. I am not at all too sure that he has not, in the course of his argument, given far too wide an interpretation to the words "general superintendence"; because, as I gather, in this Court it has now been held that superintendence applies only to cases where a subordinate officer, be he Judge or otherwise, acts without jurisdiction or in excess of jurisdiction. If, having jurisdiction, he decides a case or a fact wrongly, that does not give the High Court jurisdiction under its power of superintendence to interfere with his finding of fact. I ask them, had this officer jurisdiction I find that he had jurisdiction to enter upon this inquiry. If I find he had jurisdiction to enter upon this inquiry, under the Statute he had power to make the charge he did against these professional gentlemen. How can I then say that section 107 gives us any power to exercise the right of superintendence, irrespective altogether of the argument of my learned brother, who points out that the person who is nominated by Statute is the presiding officer in whose Court the misconduct takes place Nevertheless I find that a duly constituted officer acting within jurisdiction makes a charge and proceeds to hold an inquiry under the Statute; I cannot say that we have under section 107 that right to interfere, unless we find that he has grossly abused his powers, or that he has acted in excess of his jurisdiction, or done something without jurisdiction. But that is not this case.

8. Irrespective of the construction that may be put upon section 107 of the Government of India Act, I am of opinion that it is not open to the parties at this stage of the proceedings to entirely amend or frame a new application which was not the application on which they came before the Court and on which they obtained their Rule. Suffice it to say that under section 24 I am of opinion that this application is not sustainable and it should be dismissed without the usual penalty.