Ramchandra v. Pannalal — 1954 DIGILAW 26 (RAJ)

Wanchoo, C.J.—This is an appeal by Ramchandra against the judgment and decree of the Additional Civil Judge, Jodhpur. 2. Ramchandra was the plaintiff and had sued Pannalal defendant respondent for possession of premises No. 479A on Sardar-pura Road, Jodhpur. He also prayed for a decree for Rs. 1,661/- as arrears of rent, and Rs. 1,150/- as damages for the use of a garage certain rooms over the garage and a compound behind it. He further prayed for damages for use and occupation at the rate of Rs. 130/- per month from the date of the suit until possession. 3. The suit was heard by the Additional Civil Judge, and was valued in all at Rs.3,507/-in the trial court. The Additional Civil Judge dismissed the Suit: so far as ejectment was concerned, but granted a decree to the plaintiff for Rs. 343/8/-only up to the end of June, 1951. This judgment was delivered on the 24th of July 1951. 4. The plaintiff went in appeal to the District Judge on the 17th September, 1951 He valuation was arrived at Rs. 6,6l0/-in all. This valuation was arrived at after totalling the valuation for ejectment, for damages for the use of the garage, and for the amount which the trial court had not decreed with respect to the rent and some other items. The District Judge passed an order on the 25th September, 1951, returning the memorandum of appeal for presentation to proper court on the ground that the appeal was valued at more than Rs.5000/-. Thereupon, the plaintiff appellant took back the memorandum of appeal, and presented it to this Court on that very day. 5. Mr. Hastimal appearing for the defendant urges that no appeal lies to this Court, and therefore this Court should order the return of the memorandum of appeal to proper court. He further submits that as the District Judge had already returned the memorandum of appeal for presentation to proper court, and as that order has become final, it is no use for this Court to return the memorandum of appeal for presentation to proper court. There points thus arise for determination before us. The first is whether the order of the District Judge returning the memorandum appeal for presentation to proper court was a correct order. There points thus arise for determination before us. The first is whether the order of the District Judge returning the memorandum appeal for presentation to proper court was a correct order. The second is whether that order is liable to appeal or revision, and the third is whether, the order not having been brought to this Court in appeal of revision, it is open to us to interfere with that order in case we are of the view that it is incorrect. 6. So for as the correctness of the order of the District Judge is concerned, we are clearly of the opinion that it is incorrect. The District Judge seem to have thought that because the appeal before him was valued at over Rs.5 000/- he had no jurisdiction to hear it. If he had taken care to read sec. 2 of the Rajasthan Civil Courts Ordinance (Amendment) Act, (No. XIV) of 1951, he would have found that it did not matter what the valuation of the appeal was, and that his jurisdiction to entertain the appeal depended upon the value of the original suit. Sec.21(l) of the Rajasthan Civil Courts Ordinance (No. VII) of 1950, as amended by the Amendment Act mentioned above, thus:— "Save as aforesaid an appeal from a decree or order of a Civil Judge shall lie:— (a) to the District Judge where the value of the original suit in which, or in any proceeding arising out of which, the decree or order was made did not exceed five thousand rupees, and (b) to the High Court in any other case." 7. Where, therefore, the value of the original suit was Rs. 3,507/- as in this case, the decree would be appealable to the District Judge, and not to the High Court. The District Judge was, therefore, obviously wrong when in returned the memorandum of appeal for presentation to proper court on the 25th September, 1951. 8. The next question is whether the order of the 25th September, 1951, is open to appeal or revision. The appellate court has power to return the memorandum of appeal for presentation to proper court under O. 7, r.13, read with sec. 107 (2) of the Code of Civil Procedure. It is urged relying on Kunhikutti vs. Achotti (1) that such an order is open to appeal in view of the provisions contained in O.43, r. 1 (a). The appellate court has power to return the memorandum of appeal for presentation to proper court under O. 7, r.13, read with sec. 107 (2) of the Code of Civil Procedure. It is urged relying on Kunhikutti vs. Achotti (1) that such an order is open to appeal in view of the provisions contained in O.43, r. 1 (a). It was held in Kunhikuttis case (1), relying on the corresponding provision of sec. 588 of the Code of Civil Procedure of 1877, that an appeal lay from an order returning a memorandum of appeal for presentation to proper court. With all respect to the learned Judges, we are of opinion that this view is not correct. Order 43, r.1 (a) definitely provides that an appeal would lie from an order, under rule 10 of O. VII, returning a plaint to be presented to the proper court. There is, in our opinion no warrant for substituting the words plaint in this clause simply because of the existence of sec. 107 (2) of the Code of Civil Procedure Right of appeal is a creature of statute, and unless there is a clear provision to that effect, there can be no such right. O. 43, r.1(2) does not make a clear provision for appeal from an order returning a memorandum of appeal, and, therefore, no appeal lay from the order of the district Fudge It was only possible for the appellant to file a revision against that order. We may in this connection refer to Raghunath Charansingh vs. Shamo Koeri (2), Nur Uddin Khan vs. Pran Kishan Chakarovarty (3), Harichand vs. Madanlal (4), Kandhai Mahton vs. Prasad Mahton (5), where it has been held that no appeal lies from such an order, but only a revision lies. We, therefore, hold that it was possible for Ramchandra appellant to file a revision against the order, dated 25th September, 1951. 9. What Ramchander did was that he took back the memorandum of appeal as ordered by the District Judge, and presented it in this Court. He accepted the correctness of the order of the District Judge, and did not file a revision in this Court against the order returning the memorandum of appeal. That order of the 25th September, 1951, has come to our notice now in the course of this appeal before us. We have come to the conclusion that order is clearly wrong. He accepted the correctness of the order of the District Judge, and did not file a revision in this Court against the order returning the memorandum of appeal. That order of the 25th September, 1951, has come to our notice now in the course of this appeal before us. We have come to the conclusion that order is clearly wrong. It is true that no revision was filed against that order. It is well-settled that the High Court may of its own motion call for the record and pass necessary orders where the conditions. It may be added that there is no period of limitation prescribed even for applications under sec, 115, and it is not necessary that an application by a party should be filed. As the record has already come before us in the appeal that was filed by Ramchander it is open to us to set aside the order of the District Judge, dated the 25th September, 1951, as conditions of sec. 115 are satisfied in this case, and the order is legally incorrect. The District Judge has filed to exercise the jurisdiction vested in him when he returned the memorandum of appeal for presentation to proper court, and as no appeal lies to this Court from that order, we have the power to revise it under sec. 115. 10. We, therefore, set aside the order of the District Judge, dated 25th September, 1951 and after setting aside that order return the memorandum of appeal for presentation to the Court of the District Judge. In the circumstances of this case, we consider that costs of this Court will be borne by the parties. Costs of the courts below will abide the final result.