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IN THE HIGH COURT OF MADHYA PRADESH
S.B. SEN & S.M.N. RAINA, JJ.
Balmukand
Vs.
Rameshchand and others
C. Revn. No. 299 of 1970
Decided On: 07.04.1971
Sub-rule (1) of Rule 1 of O.41 of the Code of Civil Procedure provides that every appeal shall be preferred in the form of a memo signed by the appellant or his pleader and presented to the Court or such officer as it appoints in this behalf. Thus, it is the duty of the appellant to present the memo. of appeal either to the Court concerned or to such officer as it appoints in this behalf The Clerk of Court is such an officer, authorised by the different Courts to receive plaints and memoranda of appeal on their behalf. He is thus a common agent of the different Courts and he is bound to forward the plaint or the memo of appeal to the Court to which it is addressed and not to send it to any Court be thinks appropriate in view of the distribution memo or otherwise. Thus it is the responsibility of the party concerned to see that the plaint or the memo of appeal is addressed to the proper Court and the fact that it is presented to the clerk of Court is of no consequence because be is bound to forward it to the Court to which it is addressed. [Para 6 (DB)
(2) Civil Courts Act. 1958 (MP)-S. 3 - Court of Additional District Judge-is quite distinct from Court of District Judge.
The Court of Additional District Judge is quite distinct from the Court of District Judge and is for all purposes a separate Court. [Para 7 (DB)
(3) Civil Courts Act, 1958 (MP)-Ss. 7 (2) & 15 - appellate powers of Additional District Judge-are derived from distribution memo-nature of the distribution memo.
The powers of the Court of Additional District Judge to hear an appeal are derived exclusively from the distribution memo. which is prepared by the District Judge in exercise of his powers under sub-section (2) of section 7 read with section 15 [Para 9 (DB)
It would be incorrect to say that the distribution memo. is merely a ministerial or administrative order having no force of law. The memo is in effect an order passed by the District Judge in exercise of his statutory powers under sub-section (2) of section 7 and section 15 of the Act and as such has the force of law. [Pan. 10 (DB)
(4) Civil Courts Act, 1958 (MP)-Ss. 7 (2) & 15 - appeal addressed to Additional District Judge not invested with the power under the distribution memo. to hear such appeal - proper course is to return the memo. of appeal for presentation to the proper Court.
The Court of Additional District Judge is quite a distinct and a separate Court and its appellate jurisdiction is determined by the distribution memo. prepared by the District Judge. The Court of the Additional District Judge has no jurisdiction to hear an appeal unless it has been specifically assigned to him by the District Judge under sub-section (2) of section 7 of the Act or is within the pecuniary and territorial jurisdiction as determined by the distribution memo. prepared by him. If the Addl. District Judge finds that he has no jurisdiction to hear an appeal the proper course for him would be to return the memo. of appeal for presentation to the proper Court under O.7 R. 11 C.P.C., read with section 107 C.P.C., and not to send the file to the District Judge with a suggestion that it may be transferred to the proper Court. 1968 JLJ SN 55 overruled 1968 JLJ SN 15 confirmed. 1968 JLJ 348, AIR 1956 SC 391 & 1961 JLJ 466 referred to. [Para 14 (DB)
Shivdayal, J.
1. This revision is directed against an order of the Third Additional District Judge, Gwalior, directing the appeal of the revision-petitioner to be returned to him for presentation to proper Court.
2. That appeal was from a preliminary decree dated December 5, 1966 passed by the Third Civil Judge Class II, Gwalior. The appeal was addressed to the Third Additional District Judge. This appeal was presented on February 23, 1967 to the "Clerk of the Court." The Clerk of the Court sent the appeal to the Third Additional District Judge.
3. The value of the appeal as put by the appellant was Rs. 500, although the value of the suit was Rs. 3000.
4. It is not in dispute that according to the Distribution memo issued by the District Judge the Court of the Third Additional District Judge was competent to hear an appeal the value of which was Rs. 3000. Paragraph 7 of the memo of appeal read thus :-
5. The Third Additional District Judge, by order dated 13-9-68, held that the appeal had been undervalued. The appellant then, by amending his memo of appeal, enhanced the value of the appeal from Rs. 500 to Rs 3000 and paid ad-valorem court-fee on the difference.
6. When this was done by the appellant the Third Additional District Judge found that the appeal could not be heard by him according to the Distribution Memo. Therefore by order dated March 31, 1970, he ordered the appeal to be returned to the appellant for presentation to the proper Court. Aggrieved by this last mentioned order the defendant preferred this revision.
7. It is contended by Shri Gupta, learned counsel for the petitioner that the Court of the Third Additional District Judge and that of the District Judge and those of the other Additional District Judges are not distinct; they constitute but one Court. There is also a common Clerk of the Court to whom all appeals are presented. It is merely a ministerial matter and an internal arrangement under which the appeals are distributed for hearing among the District Judge and the Additional District Judges. On this basis it is urged that there was no question of returning the appeal for presentation to proper court. The appeal was presented to the "District Court" and now it is being returned for presentation to "District Court" and the appellant will have to present it afresh to the "District Court". According to the learned counsel all this is redundant, Reliance is placed on Noor Mohammad v. Prabhulal 1968 JLJ SN 55.
8. Shri Agrawal learned counsel for the respondent on the other hand, contends that the Court of the District Judge and those of the Additional District Judges are distinct and an Additional District Judge has no independent jurisdiction. Whatever cases are assigned to a particular Additional District Judge, he has jurisdiction only in respect of those cases. For this proposition he relies on Dharmasheela v. Ramdayal 1961 JLJ 466, Umasharan Saxena v. Mansaram 1968 JLJ SN 15 and Adul Salam v. Laxmising 1968 JLJ 343.
9. It is abundantly clear from the scheme of the Civil Courts Act that Court of the District Judge is distinct from the Court of an Additional District Judge and that Additional District Judge has the powers to discharge only those functions which the District Judge may assign to him. However, as soon as the assignment is there the Additional District Judge has jurisdiction to exercise the same powers as the District Judge (per Dharamsheela v. Ramdayal (supra).
10. Ordinarily when a Court has no jurisdiction to try a suit or appeal and there is another Court which has jurisdiction to try it the suit or appeal is to be returned to the plaintiff or the appellant, as the case may be, for presentation to the proper court.
11 Now the question is :
Whether an Additional District Judge, when he finds that an appeal before him cannot be heard by him according to the Distribution Memo (the case having not been assigned to him by the District Judge) what is the proper course he has to adopt ? Must he refe
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