Shahanad v. Shibina

**OP(C) NO. 1256 OF 2022** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944 OP(C) NO. 1256 OF 2022** ## **AGAINST THE ORDER/JUDGMENT IN OS 833/2016 OF PRINCIPAL MUNSIFF COURT, NEDUMANGAD PETITIONER/APPELLANT/DEFENDANT:** SHAHANAD AGED 32 YEARS, S/O NOUSHAD, SHAHANA MANZIL, PATTANKULICHAPPARA, KOTTAKAKOMMURI, VITHURA VILLAGE, NEDUMANGAD TALUK, PIN - 695551 BY ADVS. V.G.ARUN (K/795/2004) NEERAJ NARAYAN V.JAYA RAGI R.HARIKRISHNAN (KAMBISSERIL) AVANEETH S.R. ## **RESPONDENT/RESPONDENT/DEFENDANT:** SHIBINA AGED 30 YEARS D/O. HUSSAIN, RESIDING AT SHAMILA MANZIL, THADATHARIKATHU, KADUVAZKKUZHI, PALLIVETTA, PAZHAYATHRUVU MURI, ARYANADU VILLAGE, NEDUMANGAD TALUK, PIN – 695542 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) NO. 1256 OF 2022** **2** **==> picture [53 x 13] intentionally omitted <==** ## **JUDGMENT** Can an appeal be directly filed before a District Court, from decrees and orders of a Munsiff Court, when a Subordinate Judge's Court is established at a place other than the station of the District Court, is the question posed for consideration? 2. The skeletal facts relevant for the determination of the original petition are: the petitioner was the defendant in O.S.No.833/2016 of the Court of the Principal Munsiff, Nedumangad, filed by the respondent. The suit was allowed by Ext.P1 judgment. Aggrieved by the judgment and decree, the petitioner has preferred Ext.P2 **OP(C) NO. 1256 OF 2022** **3** memorandum of appeal before the Court of the District Judge, Thiruvananthapuram. The District Courts and the Subordinate Judge's Courts have concurrent jurisdiction to entertain appeals from the decrees and orders of the Munsiff’s Courts in exigencies falling under the 1[st] proviso to Section 13 of the Kerala Civil Courts Act, 1957 (in short 'Act'). There is a Subordinate Judge's Court at Nedumangad, exercising civil and criminal jurisdiction, but the court is overburdened with work. On the contrary, there are seven District Courts in Thiruvananthapuram, where the work is comparatively lighter than the Subordinate Judge's Court, Nedumangad. Being desirous of having early disposal of the Ext.P.2 appeal, the petitioner had filed the appeal before the District Court, Thiruvananthapuram. Unfortunately, the learned District Judge, by Ext.P3 endorsement, has ordered the return of the appeal to be represented before the Subordinate Judge's Court, Nedumangad, on the ground that it is the notified court. The right to speedy justice is a fundamental **OP(C) NO. 1256 OF 2022** **4** right guaranteed under Article 21 of the Constitution of India. When the statute confers jurisdiction on both the District Court and the Subordinate Judge's Court, the petitioner is given the freedom to choose the court. Therefore, Ext.P3 endorsement, ordering the return of the appeal, is against the statute. Hence, the original petition. 3. Heard Sri.Arun V.G., the learned counsel appearing for the petitioner. 4. The Kerala Civil Courts Act,1957, came into force on 12.01.1957. Section 13 of the Act, as it originally stood, runs as follows: 13. Appellate jurisdiction of District Court and Subordinate Judge's Court.- Appeals from the decrees and orders of a Munsiff's Court and where the amount or value of the subject matter of the suit does not exceed seven thousand and five hundred rupees, from the original decrees and orders of a Subordinate Judge's Court shall, when such appeals are allowed by law, lie to the District Court: Provided that whenever a Subordinate Judge's Court is established in any district at a place other than the place where the District Court is stationed, the High Court may, with the approval of the Government, direct that appeals from the decrees or orders of Munsiff's Courts within the local limits of the jurisdiction of such Subordinate Judge's Court be preferred in such Subordinate Judge's Court. **OP(C) NO. 1256 OF 2022** **5** Provided further that the District Court may remove to itself from time to time appeals so preferred and dispose of them itself or may, subject to the orders of the High Court, refer any appeals from the decrees and orders of Munsiff's Courts preferred in the District Court to any Subordinate Judge's Court within the district”. 5. By Act 22 of 1973, published in Kerala Gazette Ext No.677 dated 26.7.1973, the 1[st] proviso to Section 13 was amended, which now reads thus: “Provided that whenever the Subordinate Judges' Courts is established in any district at a place other than the place where the District Court is stationed, appeals from the decrees or orders of Munsiff's Courts within the local limits of the jurisdiction of such Subordinate Judges' Court may be preferred in such Subordinate Judge's Court.” 6. The words, “the High Court may, with the approval of the Government direct that,” were deleted from the 1[st] proviso of Section 13 by Act 22 of 1973. 7. Section 13 of the Act permits appeals from the decrees or orders of the Munsiff’s Courts to be filed before the Subordinate Judge's Court, situated within the local limits of the jurisdiction of such Subordinate Judge's Court, established in a District other than the place where the District Court is stationed, or before the District Court. **OP(C) NO. 1256 OF 2022** **6** 8. The question that the District Courts and Subordinate Judges Courts, falling within the purview of Section 13 of the Act, have concurrent jurisdiction is no longer res-integra in the light of the law laid down by this Court in **Sulthan Bathery Mahaganapathy Kshethram v. Secretary, Malabar Devaswom** [2011 (1) KHC 271]. 9. This Court had called a report from the Registrar (District Judiciary) to ascertain whether there is a circular/notification regarding the distribution of work among the Subordinate Courts in the State of Kerala. 10. The Registrar (District Judiciary-in-charge) has filed a report placing on record Circular No.17/1957 dated 31.8.1957 on the subject – Distribution of work among the District and Sessions Judges and Subordinate Judges, which reads thus: “Sub. - Distribution of work – District and Sessions Judges and Sub Judges. The following instructions are issued for the guidance of the District and Sessions Judges and Sub Judges with regard to the distribution of work: **OP(C) NO. 1256 OF 2022** **7** (1) District and Sessions Judges must primarily confine themselves to the trial of - (a) Sessions Cases; (b) Criminal Appeals; (c) Appeals from Sub Courts; (d) Probate and such other cases under the special statutes which would be under the District Judge's jurisdiction. (2). If any time is left over, they must hear appeals from Munsiffs' Courts. (3). The Subordinate Judges' Courts are mainly intended to dispose of original suits and appeals from Munsiffs' Courts. 11. On an analysis of the pre-and-post-amended provisions of Section 13 of the Act and the circular promulgated by this Court, there is no doubt that the District Courts and the Subordinate Judges' Courts, falling within the purview of Section 13 of the Act, have concurrent jurisdiction. But, for the administrative convenience and the equitable distribution of work, the High Court has stated in the above circular that the District Courts may primarily confine to hear appeals from the decrees and orders of the Subordinate Judges' Courts, and if any time is left over, the District Courts may hear and decide appeals from decrees and orders of Munsiff’s **OP(C) NO. 1256 OF 2022** **8** Courts. Subordinate Judges' Courts are called upon to dispose of appeals from the Munsiff’s Courts. 12. On a harmonious interpretation of Section 13 of the Act and the Circular of this Court, it is to be held that if the District Court has any time left, after dealing with matters falling within the circular, it may entertain appeals filed from the decrees or orders passed by the Munsiff's Courts; if not the District Courts shall make over the appeals to the Subordinate Judge's Courts. 13. In the above legal and factual background, I hold that the impugned Ext.P3 endorsement made by the learned District Judge, ordering the return of the appeal, is wrong. In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I allow the original petition in the following manner: **OP(C) NO. 1256 OF 2022** **9** (i). Ext.P3 endorsement of the District Court, Thiruvananthapuram is set aside. (ii). The District Court shall reconsider whether it has any time left to hear Ext P2 appeal; if not, it shall make over the appeal to the Court of the Subordinate Judge, Nedumangad. **Sd/- C.S.DIAS, JUDGE** rkc/18.07.22 **OP(C) NO. 1256 OF 2022** **10** ## **APPENDIX OF OP(C) 1256/2022** PETITIONER'S EXHIBITS Exhibit P1 THE TRUE COPY OF THE JUDGMENT IN OS NO. 833 OF 2016 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, NEDUMANGAD DATED 30-09-2020 Exhibit P2 THE TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM Exhibit P3 THE TRUE COPY OF THE APPEAL MEMORANDUM WITH THE ORIGINAL ORDER RETURNING THE APPEAL