S. Sarwar Ali, J.
1. The husband and the wife were married in the year 1966. In the year 1971, a male child was born. It appears that the wife, who is opposite party in the case, does not find the continuance of marital tie possible. She has filed a suit being Title Suit No. 5 of 1973 in the Court of the Judicial Commissioner at Ranchi for judicial separation on the ground of cruelty. She has also prayed for custody of the child.
2. According to the case of the petitioner, a few years after the solemnisation of the marriage under the Special Marriage Act, 1954, there was another ceremony of the marriage according to Hindu rites. This was in the year 1970. In this case, it will not be necessary to consider as to whether this was factually so, as, in my view, the rights of the parties, so far as the present suit is concerned, will be governed by the Special Marriage Act.
3. The suit has been transferred by the Judicial Commissioner to Additional Judicial Commissioner, Ranchi. Before him, a question was raised as to whether he had jurisdiction to try the suit. In the impugned order, the learned Additional Judicial Commissioner has held that he has such a jurisdiction.
4. Mr. J. C. Sinha, appearing for the petitioner, contended that the Additional Judicial Commissioner has no such jurisdiction to try the suit. He relied on the definition of "District Court" in Section 2 (e), as also on Sections 23 and 31 of the Special Marriage Act. Section 2 (e) of the Act aforesaid defines "District Court" as the principal Civil Court of Original jurisdiction. Section 23 requires presentation of an application for judicial separation before the District Court. It further envisages that the Court, in the circumstances mentioned in the section, may decree judicial separation. Section 31 states that such an application may be presented to the District Court within local limits of whose jurisdiction the marriage was solemnised or the husband and wife reside or last resided together. Relying on the decision of the Supreme Court in Kuldip Singh v. State of Punjab, (AIR 1956 SC 391), learned counsel for the petitioner contended that the Court of the Additional Judicial Commissioner was a separate and distinct Court of its own and that it did not have concurrent jurisdiction with the Court of the Judicial Commissioner. He also relied on the decision in the case of Janak Dulari v. Narain Dass, (ATR 1959 Punj 50). It was next contended that Section 23 aforesaid not only envisages presentation of an application for judicial separation to the District Court as defined in the Special Marriage Act but also requires disposal thereof by the District Court. It was, therefore, contended that disposal of the case by a court other than the District Court is not envisaged. Consequently, the Additional Judicial Commissioner had no jurisdiction to try the suit in question. Learned counsel further contended that the Bengal, Agra and Assam Civil Courts Act (hereinafter referred to as "the Act") cannot be of any help to the petitioner. According to him, the Special Marriage Act, being a special Act, would prevail.
5. Mr. R. S. Chatterji, appearing for the opposite party, placed reliance on Section 8 of the Act and has contended that, by virtue of the provisions thereof, once the case has been transferred to the Court of the Additional Judicial Commissioner by the Judicial Commissioner, the said Court would be competent to try, and have jurisdiction to decide, the suit. He too relied on Kuldip Singh's case (supra). Reliance was also placed on the case of Mt. Daho Kuer v. Mt. Tural Devi, (AIR 1924 Pat 593) and Laxman Singh v. Kesharbai, (AIR 1966 Madh Pra 166), apart from the cases referred to in the decision of the Court below. It was further contended that, by virtue of Section 40 of the Special Marriage Act, Section 24 of the Code of Civil Procedure was applicable to a proceeding under the Special Marriage Act. Some other contentions were also raised which need not be noticed in the view that I am taking in this case.
6. In the case, it is not disputed that the Judicial Commissioner is vested with the powers of a District Judge, and that the provisions of Bengal, Agra and Assam Civil Courts Act shall be applicable, I proceed to examine the contentions on the aforesaid basis.
7. Section 2 (e) defines "District Court" as the principal Civil Court of original jurisdiction. It is not disputed that the Court of Judicial Commissioner is the principal Civil Court of original Jurisdiction. The question for consideration, therefore, is whether by virtue of the powers conferred by Section 8 of the Act, the Judicial Commissioner can transfer the suit to be tried by the Additional Judicial Commissioner. In that context, I shall examine the last two contentions raised by the learned counsel for the petitioner later. At present, I propose to deal with the Supreme Court decision and the effect thereof on the present controversy.
8. The Supreme Court in Kuldip Singh's case was considering the provisions of the Punjab Courts Act. Section 18 of that Act is, for practical purposes, similar to the provisions of Section 3 of our Act. Section 21 similarly corresponds to Section 8 of the Act. It is, therefore, clear that the principles of Kuldip Singh's case (supra) shall govern the present case. It would, however, be important to notice the circumstances in which the relevant question arose before the Supreme Court. There, it appears, an appeal against an order passed by the Senior Subordinate Judge, rejecting an application filed before him praying that a complaint be filed against the appellants of that case was filed directly in the Court of the Additional District Judge. One of the questions, and that is the question with which we are concerned, before the Supreme Court was whether the learned Additional District Judge had jurisdiction to entertain and decide the appeal. It was in that context that the provisions of the Punjab Courts Act were examined. After quoting Sections 18 and 21 of the Punjab Act, it was observed (in relation to Additional Judges who were commonly known as Additional District Judges) as follows :--
"But these Judges cannot discharge all the judicial functions of the District Judge. Their jurisdiction is a limited one and is limited to the discharge of such functions as may be entrusted to them by the District Judge." Section 21 (2) states as follows :--
"An Additional Judge so appointed shall discharge any of the functions of a District judge "which the District Judge may assign to him." It is true that Section 21 (2) goes on to say that, "in discharge of those functions he shall exercise the same powers as the District Judge", but these powers are limited to the cases with which he is entitled to deal. Thus, if his functions are confined to the hearing of appeals he cannot exercise original jurisdiction and vice versa. But if he is invested with the functions of an appellate tribunal at the District Court level, then he can exercise all the powers of the District Judge in dealing with appeals which the District Judge is competent to entertain."
Their Lordships of the Supreme Court have further held-
"as the Punjab Courts Act does not contemplate the appointment of Additional Judges to the District Court, none can be appointed. The Court contemplated is the Court of the Additional Judge which is in the nature of a special tribunal set up for a special purpose and invested with the powers of a District Judge when dealing with the matters specially entrusted to its jurisdiction. We hold therefore that the Court of the Additional Judge is not a division Court of the Court of the District Judge but a separate and distinct court of its own."
Relying particularly on the latter observation, the learned counsel for the petitioner contended that, since the Court below was a separate and distinct Court, it could not exercise the powers that could be exercised by the Judicial Commissioner. In my view, the observations aforesaid have to be read along with other observations which I have already quoted. My interpretation of these observations is that the Supreme Court held that the Additional Judges, in the scheme of the Punjab Act, could not claim to be Court of concurrent jurisdiction with that of the District Judge and entertain an appeal directly which was entertainable by the District Judge. It does not lay down that a District Judge while exercising powers under Section 21 of that Act, cannot transfer a case to the Additional Judge and that he (the Additional Judge) cannot decide the case thereafter. In fact, the observations quoted by me clearly lead to a contrary conclusion. It has been stated that the jurisdiction of Additional Judges is limited to the discharge of the functions as may be entrusted to them. What has been emphasised is that they cannot directly entertain or deal with matters which have to be dealt with by the District Judge unless there has been an order as envisaged under Section 21 (2). To that extent their power is limited. They cannot exercise original jurisdiction; but, once an additional Judge is required by the District Judge to discharge any function of the District Judge which may be assigned to him he has the same powers as the District Judge himself. In my view, therefore, this case is authority for the proposition that once a case has been properly assigned to an Additional Judge (which in the present case would mean to the Additional Judicial Commissioner) by the District Judge (which in the present case would mean to the Judicial Commissioner) the Additional Judge can discharge the functions which the entertaining Court could discharge. It may be clarified that the power of transfer under Section 8 of the Act is not confined to assignment of particular class of cases to the Additional Judges but includes the power to transfer a particular case (See Rup Kameshwar Lal v. Jaijai Bibi, AIR 1916 Cal 561 (FB) and Inderdeo Ojha v. Emperor, AIR 1945 Pat 322 at p. 325). It is, therefore, not possible to concede to the contention of the petitioner that the Court below had no jurisdiction to decide the suit on the basis of the first contention raised on behalf of the petitioner.
9. Since, in my view, the Supreme Court decision itself leads to a view contrary to the one propounded by the petitioner, it is not necessary to discuss decisions of other Courts which have been cited in the course of argument.
I may now notice the second contention raised on behalf of the petitioner. It is said that Section 23 of the Special Marriage Act bars the disposal of an application for judicial separation except by the District Judge himself. Section 23, so far it is relevant, may be quoted;
"The petition for judicial separation may be presented and the Court, on being satisfied of the truth may decree judicial separation accordingly."
It should be noticed that there are no words in this section which explicitly bar the exercise of power of transfer, if available under some other statute, nor do T read such a limitation by necessary implication. There are various Acts where Courts as defined in the relevant provisions of the Act have been conferred with jurisdiction to deal with cases arising out of those statutes. We find that in such statutes there are provisions to the effect that the Court (as defined) has to decide specifically matters mentioned therein. No case has been brought to my notice which takes a view that in those statutes the Court as denned can alone deal with the case and if there are provisions similar to the provisions contained in the Bengal, Agra and Assam Civil Courts Act there cannot be a transfer to the Courts set out in such Acts. In fact, we find that in Mt. Daho Kuer v. Mt. Tural Devi, (ATR 1924 Pat 593) which was a case under Probate Administration Act, 1881, it has been held, relying on the provisions of Section 8 of Bengal, Agra and Assam Civil Courts Act, that a District Judge may transfer a class of cases or a particular case to the Additional (District) Judge in order to relieve himself of the burden on account of accumulation of cases. Similar is the view in respect to Land Acquisition Act (see Lila Mahton v. Sheo Govind Singh, AIR 1956 Pat 108 which places reliance on the decisions reported in AIR 1919 Cal 133 and AIR 1919 Cal 720). Jt is, therefore, not possible to hold that the power to transfer cases as envisaged in the Act is by either explicitly or by implication barred by Section 23 of the Special Marriage Act.
10. The? last contention may now be noticed. The maxim "Generalia specialibus non derogant" has been explained in authoritative text books on interpretation of statutes. In Maxwell's Interpretation of Statutes it is stated :--
"Now if anything be certain it is this "said the Earl of Selborne L. C. in The Vera Cruz, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so." In a later case, Viscount Haldane said : "We are bound to apply a rule of construction which has been repeatedly laid down and is firmly established. It is that whenever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared, A merely general rule is not enough, even though by its terms it is stated so widely that it would, taken by itself, cover special cases of the kind I have referred to."
The situation in the present case is completely different from what has been explained above. It would, thus, be clear that the maxim "Generalia specialibus non derogant" is not applicable to the present case.
11. I must also notice the decision in Janak Dulari's case (AIR 1959 Punj 50). In that case, relying on the decision in Kuldip Singe's case (supra) it was held by the Punjab High Court that a district Judge to whom a petition under the Hindu Marriage Act has been presented cannot transfer it to an additional District Judge. In my view there is nothing in the Supreme Court decision which leads to the conclusion to which the learned Judges in the Punjab case have arrived at. I, therefore respectfully differ from the view taken by the Punjab High Court.
12. In the result, this application fails and is dismissed, but without costs.
Let the records be sent down immediately and the hearing in the Court below be expedited.