Krishan Chand vs Tej Ram

Mian Jalal-ud-din Ag., C.J.—A preliminary objection has been raised in this appeal that the same is not competent as the order passed by

the District Judge is not one under Order 7, Rule 10 of the CPC returning the plaint to the Plaintiff for presenting it before the proper forum. The

learned District Judge, after he found the Defendant-Respondent an agriculturist within the meaning of Section 2 of the Agriculturists Relief Act,

transferred the case to the court of sub-Judge, Kathua for disposal. The said order is not appealable.

We have heard the learned Counsel for the parties.

Mr. D.N. Mahajan appearing for the Appellant has tried to meet this argument of the Respondent by enunciating the view that the order of the

District Judge, transferring the suit to the court of sub-Judge Kathua for disposal is to be construed as one under Order 7, Rule 10 of the CPC

District Judge after he found the Defendant an agriculturist and after he was of the view that the case could not be tried by him and no other

procedure to follow but the one indicated under Order 7, Rule 10 of the CPC This, in fact, the District Judge purported to do while passing the

impugned order. Therefore the order transferring the case to the sub-Judge should nevertheless be construed to mean the return of the plaint to the

Plaintiff for presenting it before the proper court and passed under Order 7, Rule 10, CPC in support of his argument he has relied upon AIR

1972 J and K 1 (FB) : AIR 1968 Mad 222 and AIR 1967 Andh Pra 152.

Mr. S.P. Gupta appearing for the Respondent has on the other hand, submitted that the court below has not followed the procedure as laid

down by Order 7, Rule 10 but has, on the other hand, suo motu transferred the case to the court of sub-Judge. The order cannot, therefore, be

said to be one under Order 7, Rule 10 of the Code of Civil Procedure. If the District Judge had ordered the return of the plaint to the Plaintiff then

in that case the order was appealable but not otherwise. He has invited our attention to Section 104, CPC and Order 43, Rule 1 and has

submitted that the appeal is the creature of statute. The law in the present case nowhere gives right of an appeal to the Plaintiff to file an appeal

against the impugned order, as such the appeal cannot be entertained. Mr. Gupta has, however, conceded the argument that a revision is

competent against the impugned order but has qualified it by stating that the revision would be entertainable only on a point of law and not on a

question of fact.

In our opinion the impugned order is not appealable. The District Judge has committed an error of law by transferring the case from his court to

the files of the sub-Judge after he found that the Defendant was an agriculturist. When the Defendant was declared as an agriculturist within the

meaning of Section 2 of the Agriculturists Relief Act and the court found that it had no Jurisdiction to try the suit then the only procedure to be

followed was the one as laid down under Order 7, Rule 10, CPC i.e. to return the plaint to the Plaintiff for presenting it before the appropriate

forum. This the learned District Judge did not do. He, on the other hand, transferred this case presumably u/s 24 of the Code of Civil Procedure.

Be as it may, (sic) are concerned with the actual order passed by the District Judge for the purpose of determining the right on the appeal and not

with what he ought to have done under the procedure Right of appeal is founded on what the court actually purports to do and not by what the

court should have done under the law for the time being in force. As in the instant case the court had not followed the procedure as provided under

Order 7, Rule 10 of the CPC but has erroneously transferred the case to the sub-Judge, the order can not therefore; be construed as one to be

fallen under Order 7, Rule 10 and is not therefore, appealable. I may quote here with profit the observation made by Dalip Singh J. in case Gopal

Singh v. Mangal Singh reported in AIR 1928 Lah 341 that the right appeal is determined by what the court purported to do, and not b(sic) what

the court should have done (sic) so where the court purported to make a remand order under Order 41 Rule 23, Code of Civil Procedure, though

in reality it should have been u/s 151 CPC an appeal from such a remand order was competent. This authorities relied upon by the learned

Counsel for the Plaintiff Appellant are not applicable to the facts of the case and have got no relevance to the point at issue. These authorities do

not deal with the order passed under Order 7, Rule 10, CPC and do not discuss the proposition involved in the preliminary objection.

For the foregoing reasons we agree with the contention of the learned Counsel for the Respondent that the appeal is incompetent; the

preliminary objection must therefore prevail. As the case cannot now be heard as an appeal so it will be treated as a revision and will proceed.

In our view it would be advantageous for both the parties if the revision petition is heard by the same Division Bench which is seized of the

appeal, therefore the case may be listed as revision petition for arguments on 14th of December, 1976.