JUDGMENT
Monoj Kumar Mukherjee, J.
1. The petitioner filed an application under Section 10 of the City Civil Court Act, 1953 (‘Act’ for short) for transfer of Title Suit No. 1183 of 1985, in which she is the plaintiff, from the learned Judge, Third Bench, City Civil Court, Calcutta to some other learned Judge of that Court on the such apprehension were detailed in the application. After hearing the parties the learned Chief Judge, of the City Civil Court rejected the application, without going into its merits, on a finding that power under Section 10 of the Act could be exercised by him only to ensure proper distribution of business or to give effect to the provisions of Section 11 of the Act, and it did not extend to grounds canvassed by the petitioner. Aggrieved thereby the .petitioner has filed his application intituling it as one under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India. – :
2. In the context of the above facts the only point that falls for determination in this application is what is the nature and extent of the power of the Chief Judge of the City Civil Court under Section 10 of the Act. Considering the importance of the point involved we requested Mr. Shyama Prasanna Roy Chowdhury, the learned Advocate, to appear as amicus curiae. We place on record our deep appreciation for the assistance rendered by him in deciding the point.
3. To relieve the Original Side of this Court of part of the large volume of civil litigation arising in the City of Calcutta and to ensure speedy administration of justice the Act was brought in the Statute Book and the City Civil Court was established the rounder. To preside over The City Civil Court a Chief Judge and other Judges have been appointed under Section 4 of the Act and the extent of their jurisdiction has been delineated in Section 5 thereof. Section 10 of the Act speaks about the power of the Chief Judge in respect of distribution of business, and transfer and withdrawal of suits or proceedings.
4. Since the main controversy centres round its interpretation we extract Section 10 below :
(1) The Chief Judge may make such arrangements as he thinks fit for the distribution of business of the Citv Civil C among the Judges thereof.
(2) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or if he is of opinion that, it is necessary so to do in order to ensure proper distribution of business’ or in order to give effect to the provisions of Section 11, then of his own motion and without such notice, the Chief Judge may at any stage-
(a) transfer any suit or proceeding pending before him for trial or disposal to any other Judge of the City Civil Court, or
(b) Withdraw any suit or proceeding pending before any other Judge of that Court, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Judge other than the Judge from whom it was withdrawn.
(3) Where any suit or proceeding has been transferred or withdrawn under sub-section (2), the Judge who thereafter tries such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn, as he thinks fit.
5. The other Section relevant for our present purpose is Section 11 of the Act which reads as under:
(1) The Chief Judge, or any other Judge of the City Civil Court, shall not try any suit or proceeding to which he is a party or in which he is directly or indirectly interested.
(2) When any such suit or proceeding comes before the Chief Judge he shall of his own motion forthwith transfer it under Section 10, to another Judge of the City Civil Court.
(3) When any such suit or proceeding comes before any other Judge of the City Civil Court, he shall of his own motion forthwith transmit the record of such suit or proceeding to the Chief Judge with a report of the circumstance and the Chief Judge shall deal with such suit or proceeding under Section 10.
6. Dissecting and analysing sub-section (2) of Section 10 we get that the Chief Judge may exercise powers contained m Clauses (a) and (b) thereof
(I) on the application of any of the parties.
(II) if he is of the opinion that it is necessary so to do in order to ensure proper distribution of business; and
(III) in order to give effect to the provisions of Section 11. and when the power has to be exercised in the case of Clause (I) above notice has to be given to the parties and they have to be heard if they so desire.
7. If sub-section (1) of Section 10 is read in juxtaposition with clause (II) above it will be seen that while the former relates to distribution of business, the latter relates to proper distribution of business. Undoubtedly the power to distribute business is purely administrative in nature. It appears to us that the word “proper” has been purposely used by the legislature for, in a given case it may so happen that a particular Judge to whom a suit has been sent for disposal under sub-section (1) of Section 10 is absent on a particular day and the Chief Judge may have to exercise the powers under Clause (II) to withdraw the case and transfer it to some other Judge to meet the exigency of the situation. Needless to say such withdrawal and transfer of. the case being purely for administrative purpose no notice, unlike clause (I) above, need be given. Similarly, the power in case of clause (III) above may have to be exercised for administrative reasons enumerated in Section 11.
8. It will thus be seen that while the powers under Clauses (II) and (III), can only be administrative in character, powers under Clause (I) above may have to be judicially exercised for applications on diverse averments and allegations may be filed before him. In such a case principles of natural justice require that all the parties should be heard and that is why the provision of giving notice to all the parties and to hear such of them as desire to be heard has been made therein. When the above Clause (I) is read pan passu with the provision of Section 24(1) of the Code of Civil Procedure it will be found that they are pan materia except that while the latter refers to Sub-ordinate Courts the former does not. Relying upon the above dissimilarity it was submitted before us on behalf of the respondent that since a Judge of the City Civil Court was not sub-ordinate to the Chief Judge the powers under Section 10(2) could not be exercised by the Chief Judge to sit in judgment over an allegation of bias made against a Judge of that- Court. We do not find any merit in this contention for sub-section (2) expressly entitles the Chief Judge to withdraw and transfer any suit, or proceeding to any Judge of the City Civil Court. When such on express power has been granted the question whether a Judge of the City Civil Court is sub-ordinate to the Chief Judge or not is immaterial.
9. For the foregoing reasons we must hold that under Section 10(2) of the Act the Chief Judge exercises, not only administrative, but judicial powers also. In that view of the matter we allow this application, set aside the impugned Order of the learned Chief Judge and direct him to proceed with the application under Section 10 of the Act in accordance with law and in the light of the observations made hereinbefore.
There will be no Order as to costs.
Swthanshu Sekhar Ganguly, J.
10. I agree.