BALMUKUND JAIRAMDAS v. RAMESHCHAND LADETILAL — 1971 DIGILAW 16 (MP)

JUDGMENT : ( 1. ) SHIVDAYAL J. has referred the following question for decision. "whether an Additional District Judge, when he finds that an appeal before him cannot be heard by him according to the Distribution memo (the case having not been assigned to him by the District Judge) what is the proper course he has to adopt? Must he refer the case to the District Judge to hear it himself or send it to such an Additional District Judge who has jurisdiction according to the Distribution Memo or must he return the appeal to the appellate for presentation to the proper Court i. e. such an Additional District Judge who according to the Distribution Memo has jurisdiction?" ( 2. ) THE fact which give rise to this reference are as follows. Non-applicant No. 1 Rameshchand obtained a preliminary decree for accounts of a dissolved partnership against the applicant Balmukund The applicant preferred an appeal against the said decree valuing the subject-matter of the appeal at Rs. 500 only, although the suit for accounts was valued at Rs. 3,000. The appeal was addressed to the Third Additional District Judge and the memo. of appeal was presented on February 23, 1967 to the Clerk of Court. The clerk of Court sent the appeal to the Third Additional District Judge. ( 3. ) ACCORDING to the distribution memo, issued by the District Judge, the Court of the Third Additional District Judge was competent to hear appeals of the value upto Rs. 1500 only. The Third Additional District Judge by order dated 13-9-1968 held that the appeal had been undervalued. The appellant then by amending his memo; of appeal enhanced the valuation of the appeal from Rs. 500 to Rs. 3,000 and paid ad valorem court-fees on the difference. After this was done the Third Additional District Judge found that the appeal could not be heard by him according to the distribution memo. Therefore, by order dated March 31, 1970 he ordered that the memo of appeal shall be returned to the appellant for presentation to proper Court. Being aggrieved thereby, the applicant preferred a revision petition out of which this reference arises. ( 4. Therefore, by order dated March 31, 1970 he ordered that the memo of appeal shall be returned to the appellant for presentation to proper Court. Being aggrieved thereby, the applicant preferred a revision petition out of which this reference arises. ( 4. ) THE contention of the learned counsel for the applicant Shri b. D. Gupta is that the clerk of Court being a common receiving agency, the presentation of the memo of appeal to him should be deemed to be presentation to the Court of the District Judge. According to him the distribution memo. prepared by the District Judge has not the force of law and it only provides for an internal arrangement whereby the appeals are distributed for hearing amongst the District Judge and the Additional District Judges by the clerk of Court, who merely performs a ministerial act. It is further urged that the District Judge and the Additional District Judges are Judges of the same Court and once the Additional District Judge had received the appeal for hearing he was competent to exercise jurisdiction in respect thereof irrespective of the distribution memo. His alternative argument is that if the additional District Judge felt that it was not proper for him to hear the appeal in view of the distribution memo, the proper course for him was to send the file to the District Judge with a suggestion that it might be withdrawn and re-transferred to the appropriate Court. Thus, it is contended that there was no justification for returning the memo. of appeal for presentation to proper court and the order of the Third Additional District Judge is, therefore, bad in law. ( 5. ) IN support of his contention Shri Gupta has relied on the decision of krishnan J. in Noor Mohammad v. Prabhudayal (1972 MPLJ Note 5=1968 JLJ Note 557 ). Bhargava J. has, however, (1970 MPLJ 157) expressed a contrary view in Umasharan Saxena v. Mansaram. This reference has been made mainly in view of the conflicting decisions of this Court. ( 6. Bhargava J. has, however, (1970 MPLJ 157) expressed a contrary view in Umasharan Saxena v. Mansaram. This reference has been made mainly in view of the conflicting decisions of this Court. ( 6. ) THE contention of Shri Gupta that the clerk of Court being a common receiving agency of the memoranda of appeal and other documents, it is his duty to send the case to the proper Court and that the responsibility of the litigant ends with the presentation of the memo, of appeal to the clerk of Court appears to be based on a misapprehension of the legal position in the matter. Sub-rule (1) Rule I of Order 4, Civil Procedure Code provides that a suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. Similarly sub-rule (1) of Rule 1 of Order 41 of the Code of civil Procedure provides that every appeal shall be preferred in the form of a memo, signed by the appellant or his pleader and presented to the Court or such officer as it appoints in this behalf. Thus, it is the duty of the appellant to present the memo. of appeal either to the Court concerned or to such officer as it appoints in this behalf. The Clerk of Court is such an officer, authorised by the different Courts to receive plaints and memoranda of appeal on their behalf. He is thus a common agent of the different Courts and he is bound to forward the plaint or the memo. of appeal to the Court to which it is addressed and not to send it to any Court he thinks appropriate in view of the distribution memo. or otherwise. Thus, it is the responsibility of the party concerned to see that the plaint or the memo of appeal is addressed to the proper Court, and the fact that it is presented to the clerk of Court is of no consequence because he is bound to forward it to the Court to which it is addressed. ( 7. ) IN the instant case, the memo of appeal was addressed to the Third additional District Judge and was, therefore, forwarded to that Court. Admittedly, according to the distribution memo the Third Additional District Judge was competent to hear appeals of the value upto Rs. 1500. ( 7. ) IN the instant case, the memo of appeal was addressed to the Third additional District Judge and was, therefore, forwarded to that Court. Admittedly, according to the distribution memo the Third Additional District Judge was competent to hear appeals of the value upto Rs. 1500. After the valuation of the appeal was raised to Rs. 3,000 by an amendment the Additional District judge found that he was not competent to hear the appeal, and, therefore, returned the memo. of appeal for presentation to the proper Court. This order of the Additional District Judge has been assailed on the ground that both the- District Judge and the Additional District Judge are Judges of the same Court and, therefore, the Additional District Judge had jurisdiction to hear the appeal. It is also urged in this connection that the order of distribution by the District Judge is purely a ministerial order and has not the force of law. We are unable to accept this contention for the following reasons. Section 3 of the M. P. Civil Courts Act (hereinafter referred to as the Act) specifies the classes of Civil Courts as under :- (1) Court of District Judge, (2) Court of Additional District Judge, (3) Court of Civil Judge Class I, and (4) Court of Civil Judge Class II. It is thus clear that the Court of Additional District Judge is quite distinct from the Court of District Judge and is for all purposes a separate Court. A similar view was expressed by Shivdayal J. in Abdul Salam v. Laxmisingh ( 1968 MPLJ 316 = 1968 JLJ 348 . ). In Kuldipsingh v. State of Punjab (AIR 19s6 SC 391.) their Lordships had occasion to consider whether the Court of Additional District Judge in Punjab was a separate and distinct Court from the Court of District Judge. As under section 18 of the Punjab Courts Act, the Court of the Additional District Judge was constituted a distinct class of Court their Lordships held that the Court of Additional District Judge was not a Division Court of the Court of District Judge, but a separate and distinct Court of its own. The reasoning on the basis of which their Lordships arrived at the said conclusion is fully applicable to the present case in view of the relevant provisions of the M. P. Civil Courts Act, 1958. ( 8. The reasoning on the basis of which their Lordships arrived at the said conclusion is fully applicable to the present case in view of the relevant provisions of the M. P. Civil Courts Act, 1958. ( 8. ) IT is significant that section 13 of the Act provides that an appeal from a decree or order of the Court of Civil Judge Class I or Civil Judge class II shall lie to the Court of District Judge. There is no mention of the court of Additional District Judge in this section. The Additional District judge derives his powers to function as an appellate Court under sub-section (2) of section 7 which provides as under:- "an Additional District Judge shall discharge any of the functions of a District Judge, including the functions of the Principal Civil Court of original jurisdiction, which the District Judge may by general or special order assign to him and in the discharge of such functions he shall exercise the same powers as the District Judge. " ( 9. ) SECTION 15 further empowers the District Judge to distribute the civil business cognizable by it among the Courts under its control. Thus, the powers of the Court of Additional District Judge to hear an appeal are derived exclusively from the distribution memo. which is prepared by the District Judge in exercise of his powers under sub-section (2) of section 7 read with section 15. ( 10. ) THERE is thus no substance in the contention that the Additional district Judge has inherent jurisdiction to hear an appeal, he and the District judge being Judges of the same Court. It would also be incorrect to say that the distribution memo. is merely a ministerial or administrative order having no force of law. The memo. is in effect an order passed by the District Judge in exercise of his statutory powers under sub-section (2) of section 7 and section 15 of the Act and as such has the force of law. ( 11. ) AS pointed out by Bhargava J. in paragraph 12 of Umasharan saxsenas case (supra), before the enactment of the Act in 1958, the Court of the Additional District Judge in the former State of Madhya Pradesh was not a separate Court. It was attached to the District Court inasmuch as the additional District Judge was an Additional Judge of the same Court. It was attached to the District Court inasmuch as the additional District Judge was an Additional Judge of the same Court. As such it was held in some Nagpur cases that the presentation of an appeal before an Additional District Judge was really a presentation to the District Court itself, which was one and indivisible. The decisions of the Nagpur High Court which were based on the position obtaining prior to the enactment of the Act could have no application now. ( 12. ) IN Noor Mohammad v. Prabhudayal (supra) Krishnan J. while dealing with a similar question doubt whether the distribution memo. prepared by the District Judge was a statutory order at all and made the following observations in para 8 regarding its legal effect:- "considering that the so called distribution order has nothing to do with judicial matters, but it is one for the convenience of the Courts, or rather one to save the District judge the trouble of writing a transfer order on each of the cases, I am inclined to hold that it is a purely ministerial arrangement. It is for the convenience of the District Judge that the officer who is authorised to receive the memorandum of appeal takes them in batches to the different Additional Courts instead of placing them all before the District Judge. Certainly, on account of such an arrangement, whatever its justification on grounds of convenience, the litigants should not suffer. " Krishnan J. further observed in paragraph 9 as under:- "i would hold the jurisdiction to be one and single for all these Judges including the the District Judge subject only to an order of allotment as a matter of convenience. " On the basis of the aforesaid observations he concluded that an Additional district Judge who feels that the arrangement for convenience would be disturbed by his handling a particular case should send the file to the District judge with a suggestion that it might be withdrawn and re-transferred to that court to which it would be more convenient to do so. ( 13. ) WITH great respect we are unable to agree with the aforesaid view as it is not in consonance with the legal position in view of the statutory provisions referred to above. ( 13. ) WITH great respect we are unable to agree with the aforesaid view as it is not in consonance with the legal position in view of the statutory provisions referred to above. In our view, it would not be correct to hold that the jurisdiction of the District Judges and the Additional District Judges is one and single, subject only to an order of allotment as a matter of convenience. ( 14. ) AS pointed out above, the Court of Additional District Judge is quite a distinct and a separate Court and its appellate jurisdiction is determined by the distribution memo. prepared by the District Judge. The Court of the Additional District Judge has no jurisdiction to hear an appeal unless it has been specifically assigned to him by the District Judge under sub-section (2)of section 7 of the Act or is within the pecuniary and territorial jurisdiction as determined by the distribution memo. prepared by him. If the Additional district Judge finds that he has no jurisdiction to hear an appeal, the proper course for him would be to return the memo. of appeal for presentation to the proper Court under Order 7, rule 11 Civil Procedure Code read with section 107 Civil Procedure Code, and not to send the file to the District Judge with a suggestion that it may be transferred to the proper Court as suggested by Krishnan J. in the aforesaid case. We agree with the view expressed by bhargava J. in Umasharans case (supra ). ( 15. ) WE, therefore, answer the reference as under:-Where an Additional District Judge finds that he has no jurisdiction to hear it under the distribution memo prepared by the District Judge, the proper course for him would be to return the memorandum of appeal for presentation to the proper Court and not to send it to the District Judge to hear it himself or to transfer it to such court of Additional District Judge as he deems fit. Reference answered.