DAMODARAN NAMBOODIRI K P Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) This appeal is directed against decree and judgment passed in O.S. No. 110/2007 on the files of the Sub Court, Tirur. The appellant is the plaintiff in a suit for declaration that the suit temple known as 'Kallarmangalam Vishnu temple' is a private temple belonging to the plaintiffs Mana by name 'Kallarmangalam Mana' and also for consequential injunction against the defendants. In the partition of thavazhi, the suit temple was set apart in favour of plaintiff's Mana and ever since plaintiff's Mana is the Ooralar of the suit temple. The suit temple is a private temple and public has neither right nor any kind of possession over the suit temple. But at the instigation of an enimical neighbour, Sub Divisional Magistrate began to treat the suit temple as a public temple. This prompted the plaintiff to file a petition before the Government; but without proper enquiry, found that the suit temple is a public temple, against the true facts. In fact it was mainly on the basis of a list of temples published by the 2nd respondent including and treating 'Kallarmangalam temple' as a public temple. Actually there were more than one temple for the plaintiff's Kallarmangalam Mana. But the list published by the second respondent Commissioner does not say which temple of Kallarmangalam Mana is treated as public temple. Against the Government order, the plaintiff's predecessor filed O.P. No. 19236/1997 before this court. On the death of the plaintiffs predecessor, the appellant herein was impleaded as additional petitioner. By judgment dated 2.2.2007, this Court dismissed of the O.P. holding that the petitioner has to file a civil suit for getting a declaration that the suit temple is a private temple. Consequently, the present suit was filed by the appellant before the Sub Court, Tirur under O.VII R. 1 and S. 26 of the Code of Civil Procedure. But the court below without understanding the legal principles involved and factual situation, dismissed the suit. Aggrieved by the impugned decree and judgment, this appeal is filed on various grounds. The learned counsel for respondents 1, 2, 4 and 5 herein raised a preliminary objection contending that this appeal is not maintainable before the High Court and it ought to have been filed before the District Court under S. 13(1) of the Kerala Civil Courts Act 1957, since the appeal is filed against a decree which passed in a suit where the value of the subject matter is below 2 lakhs rupees.

(2.) We heard Shri K. Ramachandran, the learned counsel for the appellant and Shri Lakshmi Narayanan, the learned counsel for the respondents. Broadly, the point that arises for consideration is whether the appeal is maintainable before the High Court Firstly, the counsel for the respondents pointed out that the decree appealed against was passed in a suit, where the value of the subject matter is Rs. 1,01,000/- only. After the enhancement of pecuniary jurisdiction of the District Court upto 2 lakh rupees by the amendment to S. 13 of the Kerala Civil Courts Act with effect from 27/3/1996, no appeal against a decree where value of the subject matter of the suit does not exceed 2 lakh rupees, will lie before the High Court. Therefore, the appeal ought to have been filed before the District Court under S. 13(1) of the Kerala Civil Courts Act. Per contra, the learned counsel for the appellant pointed out that according to Sections 13(3)(b) of the Kerala High Court Act, 1958, an appeal from an original decree or order in any suit or other proceedings, where the amount or value of the subject matter of the suit or other proceedings does not exceed one lakh rupees alone would lie before the Single Bench of this Court. According to S. 4(2) of the High Court Act an appeal from a decree or order of a civil court except those coming under S. 3 would lie before the Bench of two Judges of the High Court. Even though S. 13(1) of the Civil Courts Act was amended enhancing the pecuniary jurisdiction of the District Court upto Rs. 2 lakhs, no corresponding amendment was made in the High Court Act. In this appeal value of the subject matter of the suit from which this appeal arose is Rs. 1,01,000. Therefore, this appeal would lie before the Division Bench of this Court, on a conjoint reading of 'of the High Court Act.

(3.) Then the question to be decided is whether an appeal against a decree from an original suit where value of the subject matter is below Rs. 2 lakhs, would lie before the High Court, under Sections 3 (13)(b) and 4 of the High Court Act after the amendment to S. 13 of the Civil Courts Act, enhancing pecuniary jurisdiction of the District Court to Rs. 2 lakh. To put it differently, whether there is any inconsistency in the determination of pecuniary jurisdiction under Sections 12 and 13(1) of the Civil Courts Act and Sections 3(13)(b) and (4) of the High Court Act Sections 12 & 13(1) of the Civil Courts Act as amended on 23.7.1996 are extracted below: