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Ashok Kumar and ors. Vs. Om Prakas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 9 of 1971
Judge
Reported inAIR1973HP25
ActsPunjab Courts Act, 1918 - Section 39(2) and 39(3); ;Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 10
AppellantAshok Kumar and ors.
RespondentOm Prakas and ors.
Appellant Advocate S. Malhotra, Adv.
Respondent Advocate P.N. Nag, Adv.
DispositionAppeal allowed
Cases ReferredRamdhari Lal v. Uday Karayan
Excerpt:
- .....by the plaintiffs. accordingly on 26th october, 1970 the plaintiffs filed an appeal before the learned district judge of kangra. the said appeal was transferred on 25th may. 1971 to the court of the additional district judge for disposal. the limitation for filing the appeal had expired on 15th november 1970 and thereafter on 15th june. 1971 for the first time, the defendant-respondents raised the plea before the learned additional district judge that according to the valuation of the suit, the appeal was entertainable before shri p. l. sharma, senior sub-judge at dharamsala on 26th october, 1970. there was a notification under section 39 (3) of the punjab courts act, 1918 whereby shri sharma was conferred jurisdiction to entertain appeals from the decisions of a subordinate judge.....
Judgment:

D.B. Lal, C.J.

1. This second appeal arises out of an order dated 15th June, 1971 of the Additional District Judge, Dharamsala. whereby he has returned the memorandum of appeal under Order 7, Rule 10 of the Civil Procedure Code, for presentation to another Court.

2. The appellants Ashok Kumar and four others filed a suit for recovery of possession of land measuring 6 Kanals and 9 Marias comprising Khasra Nos. 426/354 and 353, situate in Tensil Palam-pur of the District of Kangra. In the plaint the suit was valued for purposes of Court-fee and jurisdiction at Rs. 3.50 and Rs. 10.50 respectively, on 10 times of the land revenue for the purpose of Court-fee, and 30-times of the land revenue for the purpose of jurisdiction. The learned Sub-Judge before whom the suit was filed, dismissed the same on 25th September, 1970. as he held, the defendants to be in possession as tenants and not as trespassers, as claimed by the plaintiffs. Accordingly on 26th October, 1970 the plaintiffs filed an appeal before the learned District Judge of Kangra. The said appeal was transferred on 25th May. 1971 to the Court of the Additional District Judge for disposal. The limitation for filing the appeal had expired on 15th November 1970 and thereafter on 15th June. 1971 for the first time, the defendant-respondents raised the plea before the learned Additional District Judge that according to the valuation of the suit, the appeal was entertainable before Shri P. L. Sharma, Senior Sub-Judge at Dharamsala on 26th October, 1970. There was a notification under Section 39 (3) of the Punjab Courts Act, 1918 whereby Shri Sharma was conferred jurisdiction to entertain appeals from the decisions of a Subordinate Judge and he was deemed to be a District Court for that purpose. The learned Additional District Judge held that the appeal should have been filed before Shri P. L. Sharma, Senior Sub-Judge. Kangra, and since it was wrongly filed in the Court of theDistrict Judge, he ordered on 15th June, 1971 that the memorandum of appeal be returned for presentation to the propeE Court.

3. Before the learned Additional District Judge, it was contested on be-half of the appellants, that the valuation for the purpose of jurisdiction was wrongly made in the plaint In fact the market value was much more and the Senior Sub-Judge could not entertain the appeal. The learned first appellate Judge held that the plea was deemed waived by the plaintiffs, and that it was their duty to have pointed out the defect earlier. Accordingly he held, that the appeal was entertainable before the learned Senior Sub-Judge and so he made the order of return of the memorandum of appeal for presentation to proper Court

4. The plaintiff-appellants have come up in this second appeal against that order of the learned Additional District Judge and have reiterated their previous stand, namely, that the learned Additional District Judge being a higher Court then the Court of the Senior Sub-Judge, had concurrent jurisdiction with that Court and the appeal was entertain-eble by him as well. In fact, according to appellants, on 15th June. 1971 Shri P. L. Sharma. Senior Sub-Judge, was already transferred and his successor Shri A. L. Vaidya was not conferred jurisdiction under Section 39 (3) of the Punjab Courts Act. 1918 to entertain such appeals. Thus the appellants were really left without a Court for filing the memorandum of appeal. The learned Additional District Judge could be stated to have assumed jurisdiction and he should not have returned the memorandum of appeal for presentation to any other Court. It is also contended on behalf of the appellants, that the limitation for filing the appeal had expired on 15-11-1970. The order of return was made on 15th June, 1971. long after the expiry of the period of limitation. This would give rise to great hardship to the appellants and in the circumstances, the appeal should have been entertained by the learned Additional District Judge,

5. It Is abundantly clear that on 15th June, 1971. the Court of Shri P. L. Sharma, Senior Sub-Judge, was. not in existence. That officer was transferred from the District in January. 1971. His Successor Shri A. L. Vaidya wag not conferred jurisdiction under Section 39 (3) of the Punjab Courts Act, 1918. Therefore, the appellants are correct when they state that they were left without a Court for presentation of appeal, as a result of the order made by the learned Additional District Judge, It would also be correct to say that on 15th June. 1971 end even from a prior date.the learned District Judge had acquired jurisdiction to entertain such appeals. It may be stated that under Section 21 of the Punjab Courts Act. 1918, the powers of the Additional District Judge were the same as the powers of the the District Judge. No sooner the order of transfer was made by the District Judge of this appeal to the Court of the Additional District Judge, the latter Court assumed all the powers of the District Judge in respect of this appeal. Therefore, it would not be wrong to state that the Additional District Judge had assumed jurisdiction to entertain such appeal even prior to 15th June, 1971. It is further manifest that the order of return of the memorandum of appeal was made long after the expiry of limitation fixed for filing the appeal. Even the objection was preferred by the respondents on 7th June. 1971. which was long after the expiry of the limitation period. In these circumstances. I am called upon to decide. as to whether the memorandum of appeal could have been entertained by the learned Additional District Judge himself and the order of return of such memorandum of appeal under Order 7, Rule 10 of the Civil Procedure Code was justified.

6. It would be difficult to say If a notification under Section 39 (3) of the Punjab Courts Act. 1918, really takes away the jurisdiction of the higher Court namely, the Court of the District Judge-It is only an enabling provision inasmuch as a concurrent jurisdiction is conferred upon the Court of Subordinate Judge, which is deemed to be a District Court for the purposes of such appeals transferred to him by the enforcement of the notification. The notification does not take away powers of the District Judge, nevertheless, to entertain such appeals. The purpose is to lighten the work of the District Judge and if in a special circumstance, he entertains such appeal, it cannot be stated that he does not get jurisdiction to decide such an appeal,

7. In a similar situation where the Court returned the plaint for presentation to another Court, but had acquired jurisdiction to entertain the suit by reason of a Government notification, it was held that the Judge could not take action under Order 7, Rule 10 of the Civil Procedure Code inasmuch as when he held that he had no jurisdiction to entertain the plaint he himself had come to acquire the jurisdiction. (See Abdulla Khan v. Tirbhuan Dutt Singh, AIR 1941 Oudh 161). Section 15 and Order 7, Rule 10 of the Civil Procedure Code are not imperative in their character and the Court of higher grade has a discretion either to return the plaint, or not to return the plaint, for being present-ed to the Court of the lower grade. The Court of higher grade cannot be stated to have committed any illegality, if it does not return the plaint for being presented to a Court of the lower grade. (See Bhuwaneshwari Kuer v. Raghubansh Mani Prasad, AIR 1954 Pat 34). It is manifest, inordinate delay was caused in the Court of the Additional District Judge inasmuch as the objection was preferred on 7th June. 1971 when the period of limitation had already expired, Naturally the order of the learned Additional District Judge was also passed on ,a date after the expiry of the prescribed period of limitation. The appellants were, no doubt, prejudiced and the respondents should not have waited so long to take up their preliminary objections In Jagdish Chandra Gupta v. Union of India, AIR 1965 Punjab 129, the laches on the part of even the Court, what to say of a party, have been deprecated. It was pointed out that the memorandum of appeal should have been scrutinised by the Court itself much earlier so that the limitation could be saved for the appellant. In the present case, had the Court of the District Judge scrutinised the memorandum of appeal no sooner the same was filed, the defect could have been pointed out and the limitation would have been saved. On the other hand, no such scrutiny took place up till 7th June, 1971 when the respondents brought the defect to the notice of the Court and the order of return was made long after the expiry of the prescribed period of limitation. The benefit for all this will have to be given to the appellants.

8. The learned counsel for the respondents relied upon Ramdhari Lal v. Uday Karayan, (AIR 1957 Pat 324). In that case, it has been laid down that a Court is entitled to pass order under Order 7. Rule 10, at any stage of the suit and such stage can even be after the trial is over and the Court upon application of either party finds that the plaint should have been filed in another Court. No one can dispute the correctness of this proposition. Still there may be special circumstances as made out in the present case, where an order under Rule 10. Order 7. may not be passed.

9. There are two significant features in the present case, namely, the conferment of jurisdiction in the Court of the Additional District Judge on 15th June, 1971 when the memorandum of appeal was ordered to be returned, and acute delay that was committed for preferring the objection so that the limitation prescribed for filing the appeal had long expired. These are special circumstances and in my opinion, the memorandum of appeal should not have been returned and rather should have beenentertained by the Additional District Judge. Apart from this, the appeal is being entertained by a Court of higher grade and by implication, such Court cannot be stated to have been deprived of its jurisdiction by the notification under Section 39 (3) of the Punjab Courts Act. 1918.

10. In this view of the matter, it is not even necessary for me to decide, as to whether the plea regarding jurisdiction was waived by the appellants, and I would leave this question open for decision by the first appellate Judge. In case, he finds that the plaint was deficiently stamped, he can proceed according to law and may even demand Court-fee, failing payment of which, he may even reject the plaint.

11. I must, therefore, hold that the order of the learned Additional District Judge is manifestly incorrect and must be set aside. The appeal is, therefore, allowed and the case is remanded to the learned Additional District Judge for disposal of appeal according to law.

12. In the special circumstances of tine case, no order is made as to costs.


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