BALBIR CHAND Vs. GOPAL CHAND

JUDGEMENT

(1.) THIS appeal which is from a decree of a Sub Judge, First Class was originally presented in the Court of District Judge, Patiala on 12 -12 -1949. On 5 -7 -1950 the District Judge ordered that the appeal be returned to the Appellant for presentation to the High Court on the ground that the District Judge had no Jurisdiction to hear it. There is a note in the handwriting of the District Judge of the same date which shows that the record of the appeal was returned to the Appellant. It was, however, presented in the High Court on 7 -8 -1950.

(2.) TWO questions arise for determination; one whether the appeal was presented bona fide in the Court of the District Judge and second whether there is an explanation for the delay for presentation of the appeal in the High Court. No affidavit has been filed by the Appellant in order to explain either fact. Mr. Ram Niwas prays that he should be allowed time to put in affidavit of the counsel who presented the appeal in they Court of the District Judge and also of the Appellant. The reason that he gives for no putting in any affidavit so far is that he wrote to his client asking him to furnish him with an affidavit and though he got a reply from him that he would be coming himself to look into the matter he has not arrived. Mr. Ram Niwas is unable to say why his client has not turned up. In view, of the importance of the questions involved and also in view of the fact that the date appearing under the note of the District Judge showing that the appeal was returned to the Appellant on 5 -7 -1950 is being challenged, Mr. Ram Niwas is allowed to put in affidavits that he wishes to put in by the 23rd instant on the condition that he pays Rs. 100/ - as costs of adjournment to the other side. If the Respondent so likes he can put in counter affidavits by the 27th. The appeal to come up for hearing on the 28th.

(3.) AS regards the first point it is necessary to refer briefly to the facts of the litigation out of which the appeal has arisen. The Plaintiff is a Brahmin and is employed in the State as a Naib Tehsildar. His father, .who, we are told, was also a Naib Tehsildar sold a house in Patiala to the Defendant for Rs. 800/ - on 10 -5 -1973 Samvat. 30 years later, i.e. on 14 -5 -2003 the Plaintiff instituted an usual suit for declaration challenging the validity of the sale alleging that his family was governed by agricultural custom, that the house was ancestral qua him and that the sale was without consideration and necessity. The value of the suit for purposes of Jurisdiction was given in the plaint at Rs. 10,000/ -. The trial Sub Judge dismissed the suit on 26 -7 -2006 S (11 -10 -1949 A. D.); Against this decree, the Appellant preferred an appeal to the District Judge on 27 -8 -2006 S (12 -12 1949 A. D.) When the appeal up for hearing before the District Judge on 5 -7 -50 an objection was raised on behalf of the Respondent that the value of the suit being Rs. 10,000/ - the appeal lay to the High Court and not to the District Judge. The correctness of the objection was obvious to everyone and the Appellant's counsel did not make any effort to question it and accordingly the District Judge by his order of the same date, ordered the memorandum of appeal to be returned to the Appellant to be presented in the High Court. The record shows that a copy of the order was prepared there and then and the memo of appeal was handed: