Annamarry Sathianathan and others vs Ambrose and others

K.M. Natarajan, J.—This Revision is directed against the order passed by the learned District Judge, North Arcot at Vellore in C.M.A.

No. 43 of 1991.

The brief facts which are necessary for the disposal of this revision are as follows: The respondent herein filed a suit in O.S. No. 18 of 1991 on

the file of the District Munsif, Arakonam and also filed I. A. No. 21 of 1991 for grant of temporary injunction restraining the defendants from

functioning as Member of the Arakonam North Pastorate Committee. The vacation Civil Court heard the injunction application in I.A. No. 21 of

1991 and dismissed the same on merits. As against the same, the plaintiffs filed an appeal in C.M.A. No. 43 of 1991 before the District Judge.

The Revision Petitioners herein, who are the defendants in the suit and respondents in the C.M.A. before the learned District Judge raised an

objection that since the impugned order was passed by the Vacation Civil Judge, the appeal lies only to the High Court by virtue of the provisions

of S. 30(7) of the Tamil Nadu Civil Courts Act, and the District Court is not having jurisdiction, and on that ground, the appeal has to be dismissed

on the preliminary point itself. The learned District Judge, after referring to sub-clauses (3), (6) and (7) of Section 30 of the Civil Courts Act came

to the conclusion that since the papers were transferred to the concerned court, after vacation was over, and in view of S. 30(6) of the Civil Courts

Act, the appeal filed before the District Court is maintainable and consequently held that the District Court is having jurisdiction to entertain the

appeal and dismissed the application filed by the respondents raising the preliminary objection. Aggrieved by the same, this revision has been filed.

Learned counsel appearing for the petitioner submitted that the learned District Judge has not properly construed the meaning of S. 30 of the

Tamil Nadu Civil Courts Act, 1873 and if so done, the appeal against the order passed by the vacation Civil Court even after vacation lies to the

High Court, and the power given by S. 30(6) has been taken away by the provision of the non obstante clause.

Per contra : Learned counsel for the respondent submits that there is absolutely nothing to show that the power of the District Court under S. 13

of the Civil Courts Act and the CPC under 0. 43, R. 1 has been taken away and, as such, even if S. 30(6) of the Civil Courts Act is excluded, yet,

cannot be said that the District Court has no jurisdiction.

For proper appreciation of the respective contentions of the parties, it is worthwhile to quote the relevant provisions of S. 30 of the Civil Courts

Act, 1873 which deals with vacation. Section 30(2) of the Act provides as follows:

Notwithstanding anything contained in this Act or in the Code of Civil Procedure, 1908 (Central Act V of 1908). The State Government may, in

consultation with the High Court for the duration of the adjournment of any District Court in summer, appoint for such District Court Subordinate

Judge to be designated the vacation Civil Judge.

Section 30(3)(b) of the Act, which defines the jurisdiction of the Vacation Civil Judge runs as follows:

The jurisdictions of the vacation Civil Judge extend to all suits, appeals and other proceedings pending in, or cognizable by, any Civil Court

(Whether a District Court, a subordinate Judge''s Court, a District Munsiff''s Court) in the district concerned when such Court is adjourned for

summer vacation.

As per Section 30(6) of the Act, ""On the reopening of the District Court, a Subordinate Judge''s Court or a District Munsiffs Court after the

summer vacation, all suits, appeals and other proceedings pending in the Court of the Vacation Civil Judge, which but for this section, would have

been instituted or pending in such District Court, Subordinate Judge''s Court or District Munsiffs Court as the case may be shall stand transferred

to such District Court, Subordinate Judge''s Court or District Munsiffs Court and any Decree, or order or proceeding passed by the vacation Civil

Judge shall, after such transfer, be deemed to be a decree, order or proceeding passed by the Court concerned"". The important Section to be

considered is sub-section (7) of S. 30 of the Act, which reads as below:

Notwithstanding the provisions of sub-sec. (6) any appeal from the decree or order of the Vacation Civil Judge, shall, when such appeal is

allowed by law, lie to the High Court.

From the words ''Notwithstanding the provisions of sub-s. (6) contained in sub-s. (7) of S. 30 of the Act, it is clear that it is not open to the

respondents to contend that after such transfer after vacation any decree or order or proceeding of the Vacation Civil Judge shall be deemed to be

a decree, order or proceeding passed by the Court concerned.

As regards the appeal is concerned, it has been specifically provided in sub-s. (7) of S. 30 of the Act that notwithstanding sub-s. (6) an appeal,

if it is allowed by law, lies only to the High Court. Sub-section (6) of S. 30 of the Act is relevant for execution and other purposes but not to

appeals.

I do not find any merit in the contention of the learned counsel for the respondents that under S. 13 of the Civil Courts Act and under O.43, R.

1 of the Code of Civil Procedure, an appeal is maintainable in the District Court. The Vacation Civil Judge has been conferred with the power of a

District Judge and the appointment is made notwithstanding the provisions of the Tamil Nadu Civil Courts Act and the CPC and that the impugned

order itself has been passed by the said Vacation Civil Judge, it is not open to the respondents to contend that in view of the fact that the vacation

was over, an appeal has to be filed before the District Court. On a careful reading of the relevant provisions of S. 30 of the Civil Courts Act,

particularly sub-s. (2), (3), (b), (6) and (7) of S. 30 of the Act, it is clear that an appeal lies only to the High Court and not to the District Court

even after the vacation is over.

The interpretation given to S. 30(7) of the Act by the learned District Judge is not proper, and as such, the Revision has to be allowed on the

ground that the appeal is not maintainable before the District Court and the proper forum is only the High Court.

In the result, this Civil Revision Petition is allowed. The order of the learned District Judge in I. A. No. 363 of 1991 is set aside and the I. A.

No. 363 of 1991 is allowed. The learned District Judge is directed to return the appeal memorandum to the respondents for presentation before

this Court. No costs.

In view of the representation made by the learned counsel for the respondent before me, the learned District Judge is directed to issue

instructions to the District Munsiff to take up the very suit itself and dispose of the same expeditiously and in any event before the end of March,

1992. The Revision Petitioners also agree to co-operate by filing the written statement early and getting ready for trial of the suit.

Revision allowed.