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2009 DIGILAW 390 (PNJ)

Jatinder Kaur v. Jaskirat Kaur

2009-02-25

RAKESH KUMAR JAIN

body2009
Judgment Rakesh Kumar Jain, J. 1. This appeal is directed against the order dated 9.5.2007 passed by Additional Civil Judge (Senior Division), Ferozepur (Exercising the powers of learned District Judge, Ferozepur) whereby an application under the Indian Succession Act, 1925 (for short `the Act) has been allowed and succession certificate has been issued to the applicant Jaskirat Kaur (respondent No. 1). 2. At the very outset, learned counsel for respondent No. 1 has contended that the present appeal filed by the appellants (respondents No. 2 and 3 before the Court below) under Section 384(1) of the Act is not maintainable. It is contended that according to Section 384(1) of the Act, an appeal shall lie to the High Court from an order of the District Judge granting, refusing or revoking a certificate and the High Court may, if it thinks fit, by its order on the appeal declare the person to whom the certificate should be granted and direct the learned District Judge on application being made, therefore, to grant it accordingly, in supersession of the certificate, if any, already granted. He further contended that application under Section 372 of the Act has been filed before the Additional Civil Judge (Sr.Divn.) Ferozepur exercising the powers of learned District Judge as a delegate of the District Judge in view of the provisions of Section 388 (1) of the Act. He further submits that if the application under Section 372 of the Act has been filed under Section 388(1) of the Act then according to its Proviso, the appeal shall lie under Section 388(2) of the Act to District Judge and not to the High Court. The relevant provisions of Sections 384 and 388 are reproduced as under : "Section 384. Appeal. - (1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefore, to grant it accordingly, in supersession of the certificate, if any, already granted. (2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (5 of 1908). (2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (5 of 1908). (3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, (5 of 1908.) as applied by Section 141 of that Code, an order of a District Judge under this Part shall be final." "Section 388 Investiture of inferior Courts with jurisdiction of District Court for purposes of this Act - (1) The State Government may by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part. (2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge : Provided that an appeal from any such order of an inferior Court as is mentioned in sub section (1) of Section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub section authorises the High Court to make by its order on an appeal from an order of a District Judge. (3) An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing sub section shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied by section 141 of that Code, be final. (4) The District Judge may withdraw any proceedings under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings. (4) The District Judge may withdraw any proceedings under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings. (5) A notification under sub section (1) may specify any inferior Court specially or any class of such Courts in any local area. (6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this section, be deemed to be a Court inferior in grade to a District Judge." 3. In order to substantiate his argument, learned counsel for respondent No. 1 has relied upon decisions in Mosamatt Parmeshwari Devi and another v. Geeta Devi and others, AIR 2001 PATNA 107; Vadia Banerjee v. Sardar, 1999(3) RCR(Civil) 244 : 1999(2) Civil Court Cases 129 (H.P.); Karunamoyee Sett & Others v. Lakshmirani Devi & Others, 1994(1) HLR 37 (Cal) (DB) and Manohar son of Bapurao Sapre v. Bhaurao son of Tukaramji Shirbhate and another. AIR 1996 Bombay 29. 4. I have given my thoughtful consideration to the contentions raised by learned counsel for respondent No. 1 and perused the record. 5. Undisputedly, in this case the powers of learned District Judge have been delegated to the Civil Judge (Sr.Division), Ferozepur who has decided the application under Section 372 of the Act. Had the application been decided by the District Judge himself in whatever manner, the appeal would have definitely been maintainable before the High Court but since the application under Section 372 of the Act has been decided by a delegate of the District Judge then in view of Proviso to Section 388(1)(2), the appeal shall lie to the District Judge and not to the High Court. In the case of Mosammat Parmeshwari Devi and another v. Geeta Devi and others (supra), it is held as under : "It is manifest from the provision of S.388(2) and its proviso clause that any inferior Court who has been invested with the power to exercise the function of a District Judge shall within the local limits of its jurisdiction have concurrent jurisdiction with the District Judge in exercise of all the powers conferred by this part upon the District Judge but the proviso clause makes it abundantly clear that where the inferior Court has passed any order under sub-sec.(1) of S.384, then the appeal shall lie to the District Judge and not to the High Court." "The submission of the learned counsel that the District Judge has got no pecuniary jurisdiction to entertain an apper where the jurisdiction exceeds Rs. One lac has got no force in it because there is no such bar under the Act. The decision cited by the learned counsel in the case of Bhim Singh v. Mohan Lal Agarwal, 1991(2) Pat.LJR 325, will have no application in this case which relates to the case under the general provision of the C.P.C. and not under the provision of this Act." "Relying upon the aforesaid decision, I hold that the appeal against the order passed by the Subordinate Judge shall lie to the District Judge and not before the High Court in view of the provision of S.388 (2) and proviso clause of the Act." 6. Similar view is taken in Vadia Banerjee v. Sardar (supra); Karunamoyee Sett & Others v. Lakshmirani Devi & Others (supra) and Manohar son of Bapurao Sapre v. Bhaurao son of Tukaramji Shirbhate and another (supra). 7. In view of the consistent view of different High Courts on this issue, I hold that the present appeal is not maintainable having been filed before this Court against the order passed by Addl.Civil Judge (Sr.Division) Ferozepur, who has decided the case as a delegate of the District Judge. Therefore, the present appeal is dismissed as such. 8. At this stage, learned counsel for the appellant has prayed that the present appeal has been filed in this Court in compliance with the provisions of Section 388(3) of the Act within the period of limitation under the mistaken belief that since the Addl. Therefore, the present appeal is dismissed as such. 8. At this stage, learned counsel for the appellant has prayed that the present appeal has been filed in this Court in compliance with the provisions of Section 388(3) of the Act within the period of limitation under the mistaken belief that since the Addl. Civil Judge (Sr.Divn.) has exercised the powers of District Judge, therefore, the appeal tantamounts to have been decided by the District Judge himself. In view of the peculiar facts and circumstances of the case, the appeal is disposed of with liberty to the appellant to file an appeal against the order passed by Addl.Civil Judge (Sr.Divn.), Ferozepur dated 9.5.2007 before the appropriate Court in accordance with law.