PANA LAL BAHAL Vs. KULBUSHAN BAHAL

JUDGEMENT

(1.) THIS revision petition must succeed on the short point that the order impugned in the petition is without jurisdiction.

(2.) BIHARI Lal respondent No. 2 filed a suit in the court of Second Additional Munsiff, Srinagar on 23-2-1968 against the Jammu and Kashmir Bank, the petitioner and Harbans Lal. respondent No. 3 for a declaration to the effect that the petitioner and respondents 2 and 3 were the only heirs and legal representatives of their father. Bishember Dass who was alleged to have been killed in the communal riots of 1947. This suit was not resisted either by the petitioner or respondent No. 3 and eventually a decree came to be passed against all the defendants in the suit on 22-7-1968. The decree was thereafter executed. Some land belonging to the deceased Bishember Dass was taken possession of and his locker in the Jammu and Kashmir Bank was opened and the property lying therein taken away. On 15-121970 i. e. nearly two years after the decree came to be passed an application was moved by Kulbushan respondent No. 1 that the petitioner and respondents 2 and 3 alone were not the heirs of their father Bishember Dass, but respondent No. 1 was also one of the sons of Bishember Dass, besides his three daughters all of whom were alive. It was stated in the application that the decree had been obtained by respondent No. 2 in collusion with the petitioner and respondent No. 3 either by creating false evidence or by making false statements in the court by the petitioner and respondents 2 and 3 to their own knowledge. This application was made under Section 476 Cr. P. C. with a prayer that the Second Additional Munsiff, Srinagar who had finally disposed of the suit may lodge a complaint against the petitioner and respondents 2 and 3 under Sections 193, 199, 200, 209 read with Section 120-B R. P. C. Notice was issued to the petitioner and respondents 2 and 3 by the Second Additional Munsiff, Srinagar who pursuant to the notice appeared in his court and filed their objections to the application of respondent No. 1. The trial court considered the application as well as the objections filed thereto and after hearing the learned Counsel for the parties at length declined to grant the prayer of respondent No. 1 vide its order dated 9-9-1975. It is not necessary for me to mention herein the grounds upon which the application was dismissed by the trial court as in my opinion the reasons given by the courts below have no role to play in the final disposal of this revision petition considering the view which I propose to take herein. An appeal was accordingly taken under Section 476-B Cr. P. C. by respondent No. 1 to Sub-Judge, Chief Judicial Magistrate, Srinagar who being of the view that the order passed by the trial court was not legally correct, accepted the same, overset the order of the trial court and remanded the case back to it for further proceedings in accordance with law. It is this order of the lower appellate court passed on 14-10-1976 which has been assailed in this revision petition.

(3.) MR. Raina appearing for the petitioner has taken a short point before me. He has contended that an appeal against the order of Second Additional Munsiff, Srinagar ordinarily lay to the District Judge, Srinagar and not to the Sub-Judge. Chief Judicial Magistrate, Srinagar and as such the order impugned in the revision petition was without jurisdiction. Mr. K. N. Bhat appearing for respondent No. 1 has on the other hand argued that the value of the suit decreed by the trial court not exceeding Rs. 500/- Sub-Judge, Chief Judicial Magistrate, Srinagar was competent to entertain and hear an appeal against the said decree, he having been invested with the powers to hear such appeals by the High Court in exercise of its powers under Sub-section (5) of Section 34 of the Civil Courts Act.