The questions involved in this Writ Petition are: (1) Whether the Appellate Court which has no jurisdiction to deal with an appeal, should return the Memorandum of Appeal to be presented before the proper court; (2) After holding that it has no jurisdiction, could the Appellate Court decide the appeal on the merits; (3) Whether absence of a specific provision in the Code of Civil Procedure to return a Memorandum of Appeal would preclude the Appellate Court from returning the Memorandum of Appeal in a case where it has no jurisdiction and (4) Whether Order XXIII Rule 1 applies to Appeals and whether the Appellate Court has power to allow an Appeal to be withdrawn.

2. The writ petitioner filed O.S.No.21 of 2008, on the file of the Court of the Subordinate Judge, Mavelikkara, against the respondent for specific performance of an agreement for sale. An application for temporary injunction was filed by the plaintiff. The trial court dismissed the application. The writ petitioner filed a Civil Miscellaneous Appeal before the District Court. The respondent raised a contention that the lower Appellate Court has no jurisdiction to entertain the appeal, since the valuation of the suit is above Rs.2 lakhs. The lower Appellate Court held that the Appeal would lie only to the High Court and that the District Court has no jurisdiction. However, the lower appellate court decided the appeal on the merits. The writ petitioner prayed for permission to withdraw the Appeal with liberty to file an appeal before the High Court. The court below did not entertain that request on the ground that there is no statutory provision enabling the appellant to withdraw the Appeal with liberty to file the Appeal before the High Court. It was also held that Rule 1 of Order XXIII of the Code of Civil Procedure is applicable only to a Suit and it does not apply to an Appeal. The court below also thought that the Memorandum of Appeal having not been returned at the time of its filing, the disposal of the Appeal on the merits is required.

3. It is not in dispute that since the suit is valued at Rs.4,58,000/-, the District Court has no jurisdiction to entertain the Civil Miscellaneous Appeal, in view of Section 13 of the Kerala Civil Courts Act.

4. Section 106 of the Code of Civil Procedure provides that where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court. Section 107 of the Code of Civil Procedure enumerates the powers of the appellate court. Sub-section (2) of Section 107 provides that the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. Section 141 of the Code of Civil Procedure states that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Section 6 of the Code of Civil Procedure reads as follows:

"6. Pecuniary jurisdiction:- Save in so far as is R WW WW otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction."

Rule 10 of Order VII of the Code of Civil Procedure provides for return of plaint. The Rule says that the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. The Explanation to sub-rule (1) of Rule 10 states that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint.

4. The aforesaid provisions of the Code of Civil Procedure would lead to