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2015 DIGILAW 220 (UTT)

AFROZ PARVEEN v. ARSH BARI

2015-04-18

SERVESH KUMAR GUPTA

body2015
JUDGMENT Hon’ble Servesh Kumar Gupta, J. 1. Supplementary affidavit filed by the appellant, is taken on record. Learned counsel for the respondent has agitated the filing of this appeal straightway to this Court in utter disregard of Section 388 of Indian Succession Act, 1925, which reads as under:- “388. Investiture of inferior Courts with jurisdiction of District Court for purpose 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 subsection (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. The issuance of succession certificate was within the jurisdiction of the Court of District Judge. By issuing a notification, the State Government may vest such powers to the Court of Civil Judge in a particular State. The notification issued by the Governor of Uttar Pradesh has been adverted in Appendix 17(L) of General Rules (Civil), Volume II. 4. Learned counsel for the appellant has submitted that the supplementary affidavit deposing that despite his best efforts, he could not be able to take out such notification either in the High Court or elsewhere but this question becomes meaningless because the said notification is available as has been indicated above. 5. 4. Learned counsel for the appellant has submitted that the supplementary affidavit deposing that despite his best efforts, he could not be able to take out such notification either in the High Court or elsewhere but this question becomes meaningless because the said notification is available as has been indicated above. 5. Learned counsel for the appellant has drawn the attention of this Court towards Order 7 Rule 10-B(1) of CPC, which contemplates as under:- “10-B. Power of appellate court to transfer suit to the proper Court.- (1) Where, on an appeal against an order for the return of plaint, the Court hearing the appeal confirms such order, the court of appeal may, if the plaintiff by an application so desires, while returning the plaint, direct plaintiff to file the plaint, subject to the provisions of the Limitation Act, 1963 (26 of 1963), in the court in which the suit should have been instituted (whether such Court is within or without the State in which the Court hearing the appeal is situated), and fix a date for the appearance of the parties in the Court in which the plaint is directed to be filed and when the date is so fixed it shall not be necessary for the Court in which the plaint is filed to serve the defendant with the summons for appearance in the suit, unless that Court in which the plaint is filed, for reasons to be recorded, otherwise directs.” 6. Learned counsel for the appellant has submitted that in exercise of powers under Order 7 Rule 10-B of CPC read with Section 151 of CPC, if the Court arrives at conclusion that the appeal should have been filed in the Court of District Judge, then the instant appeal, which has wrongly been filed to this Court, should have been transferred to the Court of District Judge. 7. Learned counsel for the respondent has resisted this submission of learned counsel of the appellant and has argued that the said provision of Order 7 Rule 10-B of CPC is applicable where the plaint has been returned in want of jurisdiction and the Appellate Court upholds the order of such return, then in such eventuality, the Appellate Court is well within its jurisdiction to direct the plaintiff to file the plaint in the Court of competent jurisdiction and may fix a date for appearance of the parties. 8. 8. The Court feels that above provision can well be applied in the instant appeal on the same analogy coupled with the powers vested in the Civil Court under Section 151 of CPC for the reason that if this appeal is returned with the direction to the appellant, then the injunction order issued by this Court staying the operation of the impugned order dated 02.09.2014, shall automatically stand vacated and within a day or two, the respondent may get the succession certificate issued by the Trial Court for hearing of the appeal and encash the T.D.Rs. 9. I do agree with the contentions of learned counsel for the respondent about the first appeal jurisdiction to the Court of District Judge and not to this High Court. Instead of returning this appeal to the appellant, the Court directs that this appeal be transferred to the Court of District Judge for hearing the appeal on merits. Need not to say, that during such transmission of this appeal, till District Judge applies his mind to the validity of the impugned order, the operation of the order shall remain stayed. 10. Both the parties will appear before the Court of District Judge, Dehradun in person or through their counsel on 11th May, 2015. 11. Registry will immediately send this case file to the Court of District Judge, Dehradun. 12. It is hereby made clear that during hearing on the stay vacation application or the appeal on merits, the District Judge shall not be prejudiced by any observation of this Court hitherto and he will be free to make his independent view in this regard.