Moulavi Noor Box Kerani vs The State of Assam and Others

P. Chennakesav Reddi, C.J.—The only question that arises in this revision petition is whether the order passed by the District Judge, Nowgong in Misc. Appeal No. 2 of 1980 dated 27.8.80 returning the memorandum: of appeal preferred against an order passed under Order 41 Rule 19, Code of Civil Procedure, by the Assistant District Judge on the ground that the Court had no jurisdiction to entertain the appeal is vitiated by any material irregularity or illegality in the exercise of jurisdiction.

The relevant facts giving rise to the question are these. The Petitioner is the Plaintiff in the suit. He filed the suit for declaration of his title arid recovery of possession of the plaint, schedule land in the Court of the Munsiff at Nowgong. The case of the Plaintiff was that he was the absolute owner and the possessor, of the land in dispute. The learned Munsiff after framing the necessary issues and on an effective evaluation of the evidence adduced by the parties dismissed the suit. Aggrieved by the said decree, the Plaintiff preferred an appeal before the Assistant, District Judge, Nowgong. The appeal was taken on file as Title Appeal No. 28 of 1977. When the appeal came on for hearing on 24.11.78, the Plaintiff-Appellant was absent. The appeal was, therefore, dismissed for default by the learned Assistant District Judge. Aggrieved against the said order of dismissal the Plaintiff filed an application under Order 41, Rule 19 of the CPC in the Court of the Assistant District Judge, Nowgong, for restoration of the appeal. The learned Assistant District Judge by the order dated 9.1.80 passed in Misc. (J) Case No. 42 of 1978 dismissed the petition and declined to restore the appeal. The Plaintiff thereupon preferred an appeal before the District Judge, Nowgong, against the order of dismissal of the petition. This appeal was registered as Misc. Appeal No. 2 of 1980. The learned District Judge by his order dated 27.8.80 returned the memorandum of appeal holding that the Court bad no jurisdiction to entertain the appeal. Hence this revision petition.

The question is whether the order of the Assistant District Judge declining to restore the appeal to file is appealable to the Court of the District Judge u/s 106 Code of Civil Procedure.

The facts narrated above are clear enough. The order passed by the Assistant District Judge was undoubtedly an order passed in exercise of the appellate jurisdiction. Under Order 43, Rule 1(t) of the Code, an order of refusal to read it an appeal passed under Rule 19 of Order 41 of the Code in appealable, But the question is as to the forum of appeal. The answer is provided in Section 106, Code of Civil Procedure. The section provides that where an appeal from an order is allowed and an order thereon is passed by the court in exercise of appellate jurisdiction, then the appeal would lie to the High Court. Therefore from the express words of Section 106, Code of Civil Procedure, an appeal lies to the High Court and not to the District Judge against the order passed by the Assistant District Judge in exercise of appellate jurisdiction. This conclusion of mine derives ample support from a Full Bench decision of the Allahabad High Court is Wahid. Ullah and Anr. v. Kanhaya Lal ILR 25. All 174 and a Division Bench decision of Calcutta High Court in Kirte Mohalder and Ors. v. Bamjan Mohaldar ILR 10 Cat 523.

Therefore, I do not find any error in the exercise of jurisdiction by the learned District Judge in returning the memorandum of appeal by holding that the Court had no jurisdiction to entertain the appeal. The revision petition is therefore liable to be dismissed and it is accordingly dismissed. No costs.