Koli Kuka Bhavan v. Koli Dana Natha — 1993 DIGILAW 399 (GUJ)

A. N. DIVECHA, J. ( 1 ) IT would be difficult to realise the plight of a litigant when he has to be told nearly after 16 years that his appeal before this Court is not competent. The present litigation shows how lows delays cause immense hardship if not harassment to litigants. ( 2 ) THE decision rendered by the learned Joint Civil Judge (S. D.) at Rajkot on 20th february 1977 in Misc. Application No. 119 of 1972 has been under challenge in this appeal at the instance of the original applicants under Sec. 96 of the Code of Civil procedure, 1908 (the Code for brief) read with Sec. 299 of the Indian Succession Act, 1925. Thereby the application of the present appellants for letters of administration with the will of the deceased annexed was rejected. ( 3 ) THE facts giving rise to this appeal are not many and not much in dispute. The controversy centres round one testamentary document alleged to have been executed by one Ravji Punja who breathed his last on 28th April 1962. The present appellants were his nephews. Their father was the brother of the deceased. According to them, their deceased uncle executed his last will on 12th April, 1961 and bequeathed all of his properties to the present appellants. As the legatees of the deceased under the testamentary document, they moved the Court of the Civil Judge (S. D.) at Rajkot for letters of administration with the will annexed. Their application came to be registered as Misc. Application No. 119 of 1972. The opponents filed their reply at Exh. 16 and resisted the application on various grounds. It appears that some other persons also objected to the grant of letters of administration and they filed their objections at Exh. 21 on the record of the case and resisted the application on various grounds. The matter appears to have been assigned to the learned Joint Civil Judge (S. D.) at Rajkot for trial and disposal. On the pleadings of the parties, the learned Trial Judge framed the necessary issues at Exh. 22 on the record of the case. After recording evidence and hearing the parties, by his decision rendered on 20th February 1977 in Misc. Application No. 119 of 1972, the learned Joint Civil Judge (S. D.) at Rajkot rejected the application. On the pleadings of the parties, the learned Trial Judge framed the necessary issues at Exh. 22 on the record of the case. After recording evidence and hearing the parties, by his decision rendered on 20th February 1977 in Misc. Application No. 119 of 1972, the learned Joint Civil Judge (S. D.) at Rajkot rejected the application. The aggrieved applicants have thereupon invoked the appellate jurisdiction of this Court by means of this appeal for questioning the correctness of the aforesaid decision rendered by the learned Trial Judge. ( 4 ) SHRI Shah for the respondents has raised a preliminary objection as to the maintainability of this appeal before this Court. He has invited my attention to the statement of fact recorded in the impugned judgment of the Lower Court to the effect that the value of the subject-matter of the will is nearly Rs. 10,000. In view of Sec. 28a of the bombay Civil Courts Act, 1869 (the Act for brief), as. it stood on the date of the impugned judgment, runs the submission of Shri Shah for the respondents, the appeal against the impugned decision of the Trial Court would lie before the District Court as the value of the subject matter of the will does not exceed Rs. 10. 000/ -. As against this, Shri hathi for the appellants has submitted that the application for letters of administration shows that the valuation of the subject-matter of the litigation was shown to be nearly Rs. 10,001/- and not Rs. 10,000/-, and as such the appeal would lie to this Court in view of sec. 28a of the Act as it stood on the date of the impugned decision of the Trial Court. Shri Hathi for the appellants has further urged that the appellants before this Court need not be deprived of the right of the hearing of their appeal by this Court after lapse of 16 years from the date of institution of this appeal. It has also been urged that it would cause immense hardship to the appellants. ( 5 ) SEC. 28a of the Act as it stood prior to its amendment by Gujarat Act No. 20 of 1979 reads: 28 A. Power to invest Civil Judges with Jurisdiction under certain Act. It has also been urged that it would cause immense hardship to the appellants. ( 5 ) SEC. 28a of the Act as it stood prior to its amendment by Gujarat Act No. 20 of 1979 reads: 28 A. Power to invest Civil Judges with Jurisdiction under certain Act. (1) The High Court may by general or special order invest any Civil Judge within such local limits and subject to such pecuniary limitation as may be prescribed in such order, with all or any of the powers of a District Judge or a district Court as the case may be under the Indian Succession Act, 1865 (X. , of 1865),the Probate and. Administration Act, 1881 (V of 1881), or paragraph 5 of Schedule HI to the Code of Civil Procedure, 1908 (V of 1908 ). (2) Every order made by a Civil Judge by virtue of the powers conferred upon him under sub-section (1) shall be subject to appeal to the High Court or the district Court according as the amount or value of the subject matter exceeds or does not exceed ten thousand rupees. (3) Every order of the District Judge passed on appeal under sub-section (2) from the order of a Civil Judge shall be subject to an appeal to the High Court under the rules contained in Code of Civil Procedure applicable to appeals from appellate decrees. Sub-section (2) of Sec. 28a is material for the present purpose. Apropos, an appeal against the order of the learned Civil Judge, in exercise of his powers under sub-section (1) thereof, would lie to the High Court if the amount or value of the subject matter exceeded Rs. 10,000 and would lie to the District Court if it did not exceed Rs. 10,000. It will therefore be necessary to see whether or not the value of the subject matter in the present case exceeds Rs. 10. 000/ -. ( 6 ) IT has been mentioned in the judgment at practically all places wherever necessary that the value of the subject matter is nearly Rs. 10. 000/ -. The objection of the opponent is also recorded to the effect that they denied the value of the subject matter to be nearly Rs. 10. 000. Shri Hathi for the appellants has invited my attention to the original application from the record of the case. 10. 000/ -. The objection of the opponent is also recorded to the effect that they denied the value of the subject matter to be nearly Rs. 10. 000. Shri Hathi for the appellants has invited my attention to the original application from the record of the case. In para 6 the value of the properties is shown to be Rs. 10,001/- both in figures and words. It however transpires therefrom that the figures originally written were Rs. 10,000 and it appears to have been corrected by hand to Rs. 10,001. So is the case with the amount shown in words. The word "one" appears to have been added by hand after the typed words "ten thousand". It does not become clear from the record whether, any leave to amend the value of the subject matter was sought from the court before correcting the said valuation. It does not become clear whether or not the application in original when filed had this correction made in its para 6 with respect to the valuation of the subject matter. Shri Hathi has tried to convince me that it was so in view of the hand-written material found in the original application. Ordinarily, I might have been inclined to believe so but for the fact that the impugned judgment of the Trial Court has wherever necessary referred to the valuation of the subject matter of the litigation as rs. 10,000/- and not Rs. 10,001/ -. This is a statement of fact recorded in the judgment of the lower court. ( 7 ) IN this connection, a reference deserves to be made to the binding ruling of the supreme Court in the case of Bank of Bihar vs. Mahabir Lal and others, reported in AIR 1964 Supreme Court 377. It has been held therein:"where a statement appears to the judgment of a court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous. The remedy of a party aggrieved is by way of review. "the law on the subject has laid down by the Supreme Court is quite clear. As pointed out hereinabove, the value of the subject matter of the litigation is stated to be Rs. The remedy of a party aggrieved is by way of review. "the law on the subject has laid down by the Supreme Court is quite clear. As pointed out hereinabove, the value of the subject matter of the litigation is stated to be Rs. 10,000 and not Rs. 10,001 by the Trial Court. It is a statement of fact recorded in the judgment, shri Hathi for the appellants submits that it could be erroneously recorded. Shri Shah for the respondents does not agree with it. When both sides do not agree the statement of fact recorded in the impugned judgment to be wrong, it will not be open to me to accept Shri hathis submission in that regard. It is an admitted position on record that the statement of fact recorded in the judgment with respect to the valuation of the subject matter of the litigation was not sought to be reviewed by the Trial Court on the ground that if was an incorrect statement recorded in the judgment. In that view of the matter, that statement of fact as to the valuation of the property in the sum of Rs. 10,000 has to be accepted as correctly recorded. It is true that the statement of fact as to the valuation of the subject matter of the litigation has been recorded by way of summary of the pleadings and not by way of any finding. However, its having been recorded as a statement of fact cannot be explained or wished away. This Court will have to accept it to have been correctly recorded. ( 8 ) ONCE the valuation of the property as recorded by the Trial Court in its impugned judgment to be in the sum of Rs. 10,000, by no stretch of imagination it can be said to exceed Rs. 10,000. It is true that the valuation so recorded is approximate. The word "nearly" prefacing the amount of Rs. 10,000 in the application could mean it to be more or less than the actual valuation. The Trial Court was not required to examine the actual valuation of the subject matter as it rejected the application. Had it granted it, it might have looked into that question presumably for the purpose of payment of the required court-fees thereon. However, the Trial Court was not required to undertake that exercise. The Trial Court was not required to examine the actual valuation of the subject matter as it rejected the application. Had it granted it, it might have looked into that question presumably for the purpose of payment of the required court-fees thereon. However, the Trial Court was not required to undertake that exercise. In that view of the matter, the approximate valuation as recorded in the judgment of the trial Court in the sum of Rs. 10,000 will have to be accepted for the purpose of deciding the forum of appeal against the impugned decision of the Trial Court. ( 9 ) SINCE the valuation is found to be not exceeding Rs. 10,000/- the appeal against the impugned decision of the Trial Court will lie to the District Court of Rajkot and not to this court in view of Sec. 28a of the Act. The preliminary objection raised by Shri Shah for the respondents as to the maintainability of this appeal will have therefore to be upheld. ( 10 ) IT is unfortunate that this appeal has remained pending in this Court for nearly 16 years from the date of its institution. The appellants have to be told after passage of 16 years that their appeal before this Court is not competent. They were aggrieved by the impugned decision of the Trial Court. That is why they thought of preferring an appeal against the Trial Courts decision. The judgment of this Court is likely to add to their miseries not because the judgment is against them but because they are told that their appeal is not competent after nearly 16 years have rolled by from the date of institution of their appeal. It is not their fault that this appeal has remained pending before this Court for all these 16 years. Laws delays have unfortunately added to their miseries and it will surprise none if they curse the system of administration of justice plagued withi inordinate and undue delay. The question that would now arise is as to what course of action this Court has to adopt when it is found that the right forum for this appeal is the District Court at Rajkot. In view of Order 7 Rule 10 read with Sec. 107 of the Code, the appeal memo will have to be ordered to be returned to the appellants "for its presentation before the proper appellate forum. In view of Order 7 Rule 10 read with Sec. 107 of the Code, the appeal memo will have to be ordered to be returned to the appellants "for its presentation before the proper appellate forum. ( 11 ) IN the result, this appeal Cannot be accepted as this is not the forum for this appeal. The memo of appeal filed by thepresent appellants is ordered to be returned to the present appellants for its presentation before the District Court of Rajkot for its disposal according to law. The learned District Judge of Rajkot is directed to give the top-most priority to its disposal whenever presented though it might be registered as a fresh appeal on its presentation, in view of the fact that this appeal has remained pending before this court for nearly 16 years without any fault on the part of the appellants. The appellants should at least know the fate of their appeal as early as possible preferably by 31st december 1993 provided the appeal memo is presented in the District Court at Rajkot by 18th September 1993 and the time gap of 16 years can by no standard be considered to be a small or negligible period. The Registry is directed to send the writ in this case along with the record and proceedings to the Trial Court as expeditiously as possible preferably by 18th September 1993. An intimation of this order is directed to be given to the District court at Rajkot. There shall be no order as to costs on the facts and in the circumstances of the case. .