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SHIV RAJ SINGH versus NABAB SINGH

High Court of Judicature at Allahabad

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Shiv Raj Singh v. Nabab Singh - FIRST APPEAL FROM ORDER No. - 15 of 1986 [2007] RD-AH 17369 (2 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

A.F.R.

First Appeal From Order No. 15 of 1986

Shiv Raj Singh and others ......... Plaintiffs/appellants

Vs.

Nabab Singh and another ......... Defendants/Respondents

**************

Hon'ble Pankaj Mithal, J.

This is an application under Section 114 read with Order 47 Rule 1 C.P.C. for the review of the order of this Court dated 14.9.2004. By the said order the Court directed that the records of this First Appeal From Order be remitted to the Court of District Judge, Kanpur Nagar as the appeal was cognizable by the District Judge on account of its low valuation of Rs. 5,000/- only (Five thousand).

The brief facts leading to the presentation of the above review application are that that an original suit No. 214 of 1981 having valuation of Rs. 5,000/- was instituted for specific performance of an agreement. The suit was decreed by the court of first instance vide judgment and order dated 4.3.1983. Against the aforesaid judgment, order and decree, an appeal was preferred being Civil Appeal No. 358 of 1983. The appeal was decided by the 5th Additional Civil Judge vide judgment and order dated 7.10.1985. The appeal was allowed, the judgment order and decree of the court below was set aside and the matter was remanded for retrial.

Aggrieved by the aforesaid judgment and order of remand, this First Appeal From Order No. 15 of 1986 under order 43 Rule 1(u) C.P.C. was preferred which was duly entertained. However, in the due course of time when this appeal came to be listed for hearing, the court found that in view of the amendment to Section 21 of the Bengal, Agra and Assam Civil Court Act, 1887 vide U.P. Civil Laws (Amendment) Act, 1991 i.e. U.P. Act No. 17 of 1991 which was enforced w.e.f 15.1.1991, the appeal is cognizable by District Judge. Accordingly the Court ordered its transfer to the District Court having jurisdiction.

Learned counsel for the applicants (Defendants-Appellants) has submitted that the court has committed an error apparent on the face of the record in transferring this appeal to the District Judge as First Appeal From Order exclusively lay before the High Court under Order 43 Rule 1(u) C.P.C., and this jurisdiction would not been affected by the U.P. Civil Laws (Amendment) Act, 1991. The second submission is that the Civil Appeal No. 352 of 1983 was preferred before the District Judge, but was transferred to the Court of 5th Additional Civil Judge, therefore the decision of the 5th Additional Civil Judge is in exercise of powers of District Judge and accordingly no further appeal would lie against the said judgment order before the District Judge.

To appreciate the first point it is necessary to examine the relevant provisions of Section 21 of the Bengal, Agra & Assam Civil Courts Act, 1887 which are reproduced here under :

"21. Appeals From Subordinate Judges and Munsifs.- (1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie-

(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees, and

(b) to the High Court in any other case.

(2) Save as aforesaid an appeal from a decree or order of a Munisif shall lie to the District Judge.

(3) ..............................................................................

(4) ............................................................................."

The said Section 21 of the Act in its applicability to the State of U.P. was amended by U.P. Act No. 4 of 1936. The word 'subordinate' wherever it occurs in Section 21 was substituted by the word 'civil'. Subsequently, by U.P. Act No. 17 of 1991 w.e.f. 15.1.1991 the entire sub section (1) has been replaced and has been substituted by sub section (1), (1-A) and (1-B). Therefore, after applying the aforesaid amendment Section 21 of the Act in its applicability to the State of U.P. now reads as under :-

"(1) Save as aforesaid an appeal from a decree or order of a civil Judge shall lie,-

(a) to the High Court in any case other than a case referred to in clause (b);

(b) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made (whether instituted or commenced before or after the relevant date) did not exceed one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may fix from time to time by notification in the official Gazette.

Explanation.- For the purposes of this sub-section and sub-sections (1-A) and (1-B) relevant date means the date of commencement of the Uttar Pradesh Civil Laws (Amendment) Act, 1991 or as the case may be, the date of commencement of notification made under clause (b) of sub- section (1).

(1-A) An appeal, from a decree or order of an civil Judge where the value of the original suit in which, or in any proceeding arising out of which the decree or order was made was not more than the amount fixed by or under clause (b) of sub-Section (1) instituted in the High Court and pending in the High Court immediately before the relevant date, shall stand transferred to the District Judge having jurisdiction who may either decide it himself or assign it to any additional judge subordinate to him :

Provided that any judgment, decree or order passed in such an appeal by the High Court after the relevant date shall be valid as if the High Court had withdrawn the appeal under Section 24 of the Code of Civil Procedure, 1908.

(1-B) The period of limitation prescribed for filing an appeal from a decree or order of a Civil Judge made before the relevant date, which lay to the High Court immediately before such date but lies to the District Judge under sub- section (1) shall, notwithstanding anything to the contrary contained in the Limitation Act, 1963, be deemed to be and always to have been the same as if the appeal continued to lie to the High Court".

(C) ..........................................................................."

A plain reading of Section 21 of the Act as it stands amended in U.P. provides that an appeal from a decree or an order of the civil judge shall lie to the High Court except in cases referred to in clause (b) of sub Section (1). Section 21 (1) (b) of the Act provides for an appeal to the District Judge where the value of the original suit or the proceeding from which an appeal arises does not exceed Rs. 1,00,000/- or such higher amount not exceeding Rs. 5,00,000/-. In short, Section 21 of the Act provides for an appeal to the District Judge from the decree or order of the Civil Judge in matters where the value of the original suit or proceedings is upto Rs. 1,00,000/- or Rs. 5,00,000/- as the High Court may prescribe by a notification in the official gazette and in all other cases of higher valuation to the High Court.

Admittedly, in the present case the valuation of the original suit from which the appeal arises is Rs. 5,000/- which is much less Rs. 1,00,000/- and therefore, the appeal against the same would lie before the District Judge. However, in the instant case the appeal was preferred earlier to the amendment and was pending before the High Court. Therefore, in view of Section 21 (1-A) of the Act where such an appeal has been presented and is pending before the High Court the same shall stand transferred to the District Judge.

In view of the above the court has rightly ordered for the transfer of this appeal to the District Judge in accordance with Section 21 (1-A) of the Act.

As regards the second submission of the learned counsel for the appeal I have perused the judgment and order of the first appellate court and finds that it has been passed by the 5th Additional Civil Judge in his independent capacity and not as District Judge or in exercise of powers of a District Judge or an Additional District Judge, Therefore, the said submission is totally misconceived and is not acceptable.

In the totality of the aforesaid facts and circumstances, I do not find any error apparent on the face of the record to exercise discretion to review. The review application is therefore, rejected.

However, before parting I would like to add that once an order has been passed by this Court transferring the record of this appeal to the District Judge it was not at all proper for the sub-ordinate court to comment upon the proprietary of the said order and to even suggest that the High Court should have registered this First Appeal From Order as a second appeal. The practice on part of the officers of the sub-ordinate Court to make such a comment on the working of this Court is not appreciable and is deprecated. A caution is issued to avoid such practice.

Date. 2nd November 2007

S.S.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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