CHANDRASEKHARAN PILLAI K P Vs. KESAVA PILLAI

JUDGEMENT

(1.) 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and (4) Whether O. XXIII R. 1 applies to Appeals and whether the Appellate Court has power to allow an Appeal to be withdrawn.

(2.) THE writ petitioner filed OS 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 R. 1 of O. 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 S. 13 of the Kerala Civil Courts Act.