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2010 DIGILAW 696 (ALL)

Jitendra Kaur v. District Judge Bareilly

2010-02-24

KRISHNA MURARI

body2010
JUDGMENT Hon'ble Krishna Murari,J. Supplementary affidavit filed on behalf of the petitioner is taken on record. 2. Heard Sri A.K. Goyal, learned counsel for the petitioner and Sri Prakash Padia appearing for respondents no. 2 & 3. This petition has been filed by the plaintiff -petitioner challenging the order dated 16.1.2010 passed by the lower appellate court in a misc. civil appeal filed by the defendant-Indian Oil Corporation Ltd., against grant of temporary injunction. 3. The first submission of the learned counsel for the petitioner is that since the suit was valued at more than Rs.20 Lac as such the appeal filed under Order 43 Rule 1(r) was not maintainable before the District Judge as per the valuation of the suit and the order passed is without jurisdiction. 4. In reply, it has been submitted by Sri Prakash Padia, learned counsel for the Indian Oil Corporation that since the formal order prepared by the trial court indicated the valuation to be Rs. 2.06 Lac as such the appeal was filed before the District Judge. It has further been pointed out that in the valuation clause of the plaint, the plaintiff-petitioner herself though valued the suit in figures at Rs.2.06 Lac but in words Rs. Twenty Lac Six Thousand was mentioned. An application seeking amendment in the plaint has been moved and is pending before the trial court. 5. Sri A.K.Goyal, on being confronted by the Court with the observation that the formal order prepared may be got corrected by the trial court in order to ascertain the jurisdiction where the misc. appeal would lie., submitted that since the record of the trial court has been summoned in appeal as such the trial court is not in a position to pass any orders either on the amendment application nor make any correction in the formal order. 6. Be that as it may, till such time the valuation of the suit is decided the jurisdiction of the court to entertain the appeal cannot be decided. 7. 6. Be that as it may, till such time the valuation of the suit is decided the jurisdiction of the court to entertain the appeal cannot be decided. 7. Considering the facts and circumstances, it is directed that the lower appellate court shall remit the original record to the trial court within a week from the date of receipt of the certified copy of this order and on receiving the record, the trial court shall proceed to decide the amendment application and accordingly draw a fresh formal order giving the valuation of the suit within two weeks from the date of receipt of the record and the jurisdiction of the appellate court would ultimately depend upon the orders to be passed by the trial court in respect of the valuation of the suit. 8. After decision by the trial court, in case the jurisdiction is with the District Judge, he shall proceed and decide the appeal in accordance with law. However, if the jurisdiction is not with him in accordance with the valuation then he shall pass necessary orders for transmitting the appeal to this Court. 9. Since there is a dispute with respect to the jurisdiction of the court to entertain and hear the appeal and till it is decided, the interim order dt.16.1.2010 would continue but all other proceedings before the appellate court shall remain stayed. 10. Subject to aforesaid directions, the writ petition is disposed of. Copy of this order be given to the learned counsel for the parties within 48 hours on payment of usual charges.