Appeal under Section 28 Hindu Marriage Act against decree by Civil Judge exercising delegated original jurisdiction of District Judge lies to High Court, not District Judge.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has assailed order dated 29.12.2022 (Annexure P-2), passed by the Court of learned Additional District Judge, Sundernagar, District Mandi, H.P., in terms whereof, in the course of an appeal filed under Section 28 of the Hindu Marriage Act, an application filed under Order 7, Rule 10A read with Section 151 of the Civil Procedure Code for return of the appeal to be presented before the appropriate Appellate Court has been rejected.

2. The facts necessary for the adjudication of this petition are that proceedings under Section 9 of the Hindu Marriage Act,1955, were filed before the Court of learned Civil Judge (Senior Division), who at the relevant time was exercising the the power of District Judge, as far as Hindu Marriage Act is concerned, in light of Notification No.C.L.No.HHC/Admn. 6(24)/74-II-8925-8933, dated 18th July, 1987 read with C.L. No.HHC/Admn. 6 (24)/74-II, dated 28th July, 1987.

3. The Court dismissed the petition filed under Section 9 of the Hindu Marriage Act. Feeling aggrieved the petitioner preferred an appeal under Section 28 of the Hindu Marriage Act before the learned District Judge. In the course of the adjudication of this matter which was pending before the learned Additional District Judge, the petitioner herein filed an application under Order 7, Rule 10A read with Section 151 of the Civil Procedure Code on the ground that as the appellate jurisdiction was vested with the High Court in terms of the provisions of the Hindu Marriage Act, therefore, the appeal before the learned District Judge was not maintainable and erroneously filed. Learned Appellate Court below in terms of the impugned order dismissed this application by holding that the appeal against the judgment passed by the learned Civil Judge (Senior Division), exercising the powers of District Judge would lie before the Court of the learned District Judge.

4. Learned Senior Counsel for the petitioner has argued that the impugned order is per se perverse. He submitted that all that the learned Civil Judge was exercising was actually the power that was conferred upon the learned District Judge in terms of the provisions of the Hindu Marriage Act. Learned Senior Counsel further submitted that what was delegated was only the original power of the learned District Judge to hear a petition may be under Sections 9 or 13 of the Hindu Marriage, but this did not mean that the Notification also delegated the power of hearing the appeal which vested with the High Court under Section 28 of the Act, upon the learned District Judge. Learned Senior Counsel further submitted that even the Notification did not say so.

5. On the other hand, learned Senior Counsel for the respondent submitted that in light of the fact that the matter was decided by an Officer of the rank of learned Civil Judge (Senior Division), the appeal was correctly filed before the learned District Judge, who was the superior Judge in the hierarchy and therefore, the order cannot be faulted with.

6. I have heard learned Senior Counsel for the parties and have also gone through the order in issue.

7. It is not in dispute before this Court that the petition under Section 9 of the Hindu Marriage Act was decided by the learned Civil Judge (Senior Division), in exercise of powers which conferred upon the said Judicial Officer as per Notification