ASHOK KUMAR Vs. OM PRAKAS

JUDGEMENT

(1.) This second appeal arises out of an order dated 15th June, 1971 of the Additional District Judge, Dharamsala. whereby he has returned the memorandum of appeal under Order 7, Rule 10 of the Civil Procedure Code, for presentation to another Court.

(2.) The appellants Ashok Kumar and four others filed a suit for recovery of possession of land measuring 6 Kanals and 9 Marias comprising Khasra Nos. 426/354 and 353, situate in Tensil Palam-pur of the District of Kangra. In the plaint the suit was valued for purposes of Court-fee and jurisdiction at Rs. 3.50 and Rs. 10.50 respectively, on 10 times of the land revenue for the purpose of Court-fee, and 30-times of the land revenue for the purpose of jurisdiction. The learned Sub-Judge before whom the suit was filed, dismissed the same on 25th September, 1970. as he held, the defendants to be in possession as tenants and not as trespassers, as claimed by the plaintiffs. Accordingly on 26th October, 1970 the plaintiffs filed an appeal before the learned District Judge of Kangra. The said appeal was transferred on 25th May. 1971 to the Court of the Additional District Judge for disposal. The limitation for filing the appeal had expired on 15th November 1970 and thereafter on 15th June. 1971 for the first time, the defendant-respondents raised the plea before the learned Additional District Judge that according to the valuation of the suit, the appeal was entertainable before Shri P. L. Sharma, Senior Sub-Judge at Dharamsala on 26th October, 1970. There was a notification under Section 39 (3) of the Punjab Courts Act, 1918 whereby Shri Sharma was conferred jurisdiction to entertain appeals from the decisions of a Subordinate Judge and he was deemed to be a District Court for that purpose. The learned Additional District Judge held that the appeal should have been filed before Shri P. L. Sharma, Senior Sub-Judge. Kangra, and since it was wrongly filed in the Court of the District Judge, he ordered on 15th June, 1971 that the memorandum of appeal be returned for presentation to the propeE Court.

(3.) Before the learned Additional District Judge, it was contested on be-half of the appellants, that the valuation for the purpose of jurisdiction was wrongly made in the plaint In fact the market value was much more and the Senior Sub-Judge could not entertain the appeal. The learned first appellate Judge held that the plea was deemed waived by the plaintiffs, and that it was their duty to have pointed out the defect earlier. Accordingly he held, that the appeal was entertainable before the learned Senior Sub-Judge and so he made the order of return of the memorandum of appeal for presentation to proper Court