Sheela Rani v. S. Raveendran Nair and Suresh Kumar

_**OP(C).1923/21**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943** **OP(C) NO. 1923 OF 2021** **AGAINST THE ORDER/JUDGMENT IN AS 386/2015 OF II ADDITIONAL** **DISTRICT COURT,TRIVANDRUM** **OS 220/2005 OF PRINCIPAL SUB COURT,ATTINGAL** ## **PETITIONER/S:** SHEELA RANI AGED 58 YEARS D/O. LATE SIVARAJAN, DWARKA, NO.1, NEAR RAILWAY STATION, KADAKKAVUR VILLAGE, KADAKKAVUR, THIRUVANANTHAPURAM DISTRICT. BY ADV R.ANILKUMAR ## **RESPONDENT/S:** 1 S. RAVEENDRAN NAIR AGED 63 YEARS S/O. SUKUMARA PILLAI, RESIDING AT SUDINAM, VILAYILMOOLA, KEEZHATTINGAL VILLAGE, THIRUVANANTHAPURAM, PIN - 695325. 2 SURESH KUMAR AGED 52 YEARS S/O. SIVARAJAN, CHIRAYANTHAI VEEDU, KADAKKAVUR VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDE K. R. RAJAN, THURSHARA, THEKKUMBHAGOM, KADAKKAVUR VILLAGE, THIRUVANANTHAPURAM, PIN - 695351. BY ADVS. M.R.RAJESH E.S.SANDHYA JAVAHAR T.M. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30.11.2021, THE COURT ON 31.01.2022 THE FOLLOWING: _**OP(C).1923/21**_ 2 **V.G.ARUN, J. ----------------------------------------------O.P(C).No. 1923 of 2021 ----------------------------------------------Dated this the 31[st] day of January, 2022** ## **JUDGMENT** The petitioner is facing a Catch-22 situation, consequent to the dismissal of her application for restoration of the appeal (A.S.No.386 of 2015) filed before the Additional District Court-II, Thiruvananthapuram. The essential facts, necessary for adjudicating the issue involved, are as under; The petitioner was the 1[st] defendant in O.S.No.220 of 2015 filed by the 1[st] respondent herein for recovery of an amount of Rs.9,04,000/-. The suit was decreed by allowing the plaintiff to realise the amount from the 1[st] defendant, together with interest @ 6% on the principal amount of Rs.8 lakhs. Aggrieved by the judgment and decree, petitioner preferred appeal and the same was numbered as A.S.No.386 of 2015 on the files of the II Additional District Court, Thiruvananthapuram. The appeal was valued at Rs.13,76,000/-. At the time of filing the appeal, petitioner paid one-third court fee of Rs.42,840/-. The balance court fee of Rs.85,640/- was paid on _**OP(C).1923/21**_ 3 23.5.2017. Thereafter the appeal was posted for hearing on 28.5.2018. As there was no representation for the appellant, the appeal was dismissed for default. Much later, on 20.9.2021, the petitioner filed an application for restoration of the appeal, along with an application for condoning the delay of 1180 days. By Exhibit P7 order, the application for condonation of delay was dismissed, primarily for the reason that the District Court did not have the pecuniary jurisdiction to entertain the appeal, as the suit, valued at Rs.9,04,000/-, was filed on 24.11.2005. Section 13(1) of the Kerala Civil Courts Act, 1957 as it existed then, provided for filing of appeals from decrees and orders of the Munsiff's Court to the High Court, if the value of the subject matter of the suit exceeded rupees two lakhs. Appeal could be preferred before the District Court only from judgments and decrees of the Munsiff's Court, where the value of the subject matter was below rupees two lakhs. Section 13(1) of the Civil Courts Act was amended by Act 26 of 2013 and the pecuniary limit for filing appeals before the District Court raised to rupees twenty lakhs with effect from 6.5.2013. The appellate court relied on the decision in _**Kunnappadi Kalliani v. Lekharaj**_ [1996 KHC 271] to hold that pecuniary jurisdiction has to be decided in accordance with the provision prevailing at the time of institution of the suit for dismissing the application for condonation of delay, the application for restoration of the appeal was also dismissed. _**OP(C).1923/21**_ 4 The predicament of the petitioner is that her appeal having been dismissed for default by the District Court, she is disabled from filing appeal before the High Court against the judgment and decree of the trial court. A second appeal also cannot be preferred, in the absence of a judgment and decree by the first appellate court. Hence, she has preferred this original petition seeking the following reliefs; (i) to set aside the order dismissing the appeal for default and to restore the appeal after condoning the delay; (ii) to direct the appellate court to return the appeal memorandum in A.S.No.386 of 2015 for presentation before the High Court. 2. Heard Sri.R.Anil Kumar, learned Counsel for the petitioner, Sri.M.R.Rajesh, learned counsel for the 1[st] respondent and Sri.Philip Mathews, who, on request, promptly and efficiently assisted the court. 3. A solution to the petitioner's predicament will depend on the answer to the question whether the appellate court was justified in dismissing the application for restoration of the appeal, after having accepted the appeal on file. In my opinion, the maxim ' _actus curiae neminem gravabit',_ which means that an act of the court shall prejudice no one, will apply on all fours to the fact situation. Having held so, it will be apposite to refer the relevant provisions of the Code of Civil Procedure. Section 6 of CPC makes it clear that no Court is _**OP(C).1923/21**_ 5 having jurisdiction over suits, the amount or value of the subject matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction. Therefore, the appeal against the decree and judgment in the instant suit could not have been entertained by the District Court, since Section 13(1) of the Civil Courts Act, as it existed on the date of filing of the suit, provided for filing of appeals against judgment and decree of Munsiff's Court, where the value of the subject matter of the suit was above two lakhs rupees, to the High Court. Section 96(1) of CPC, which is also contextually relevant, reads as under; _**“96. Appeal from original decree.-** (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.”_ The above provision makes it clear that an appeal from the original decree will lie only to the court 'authorised to hear appeals from the decisions of the court exercising original jurisdiction'. In the instant case, the District Court was not authorised to hear appeal from the decision of the Munsiff's Court, for want of pecuniary jurisdiction. As per Section 107, the appellate court has the same powers as are conferred and imposed by the Code on courts of original jurisdiction, in respect of suits instituted therein. Order VII Rule 10 confers upon the _**OP(C).1923/21**_ 6 courts of original jurisdiction, the power to return the plaint for presentation to the court in which the suit should have been instituted. In view of Section 107, the appellate court can also exercise the power under Order VII Rule 10. The legal position in this regard, laid down by a series of decisions, is explicitly dealt with by this Court in _**K.P.Chandrasekharan Pillai v. Kesava Pillai**_ [2009 (2) KLT 193]. Paragraph 4 of the judgment, which is of relevance, is extracted hereunder; _“5. The aforesaid provisions of the Code of Civil Procedure would lead to the conclusion that the powers which the Trial Court has for return of plaint would be available to the Appellate Court in the matter of return of the Memorandum of Appeal presented to it, when it has no jurisdiction to entertain it. Even in the absence of a specific provision for return of Memorandum of Appeal by the Appellate Court, I am of the view that the same provisions as are applicable to return of plaint would apply to return of Memorandum of Appeal presented to an Appellate Court which has no jurisdiction to entertain it. The bar to entertain an appeal could not be got over and a decision could not be rendered by an Appellate Court on the merits when the Appellate Court has no jurisdiction to entertain the Appeal, by taking recourse to the absence of a specific provision in the Code of Civil Procedure for return of the Memorandum of Appeal. What is important is whether the Appellate Court has jurisdiction to deal with the appeal. If it has no jurisdiction, the next question which would arise for consideration is what should the Appellate Court do with the appeal. If the appeal lies to another Court (in_ _**OP(C).1923/21**_ 7 _this case the High Court), the Appellate Court has to return the Memorandum of Appeal to be presented before the Court which has jurisdiction to entertain it. The matter of return of the Memorandum of Appeal is a matter of procedure. In view of the provisions contained in O. VII R.10 read with Ss.107(2) and 141 of the Code of Civil Procedure, the only conclusion that could be arrived at is that, in such circumstances, the Appellate Court has jurisdiction to return the Memorandum of Appeal. S.151 of the Code of Civil Procedure would also enable the Appellate Court to exercise that power. When it is brought to the notice of the Court that it has no jurisdiction to entertain the appeal and when the Appellate Court is satisfied that it has no jurisdiction, should the Appellate Court retain the appeal on its file and decide it on the merits, only on the ground that it has no power to return it or it has no power to permit withdrawal of the appeal? I am of the view that the harm that would be caused to the litigant if the Appellate Court decides the appeal on the merits, when it has no jurisdiction to decide it, would be of great magnitude. The litigant certainly will have to challenge the judgment before the Appellate or revisional forum, as the case may be, or file a Writ Petition. The higher forum in such cases necessarily has to set aside the judgment of the lower Appellate Court and direct the Court to return the Memorandum of Appeal for presentation to the proper Court. The power of the Appellate Court to return a Memorandum of Appeal in a case where it has no jurisdiction to entertain it, cannot be doubted. That power is inbuilt. If a Court has jurisdiction to entertain an appeal it would have jurisdiction to say that it has no jurisdiction to entertain a particular appeal and return the Memorandum of Appeal to the appellant for presentation before the proper Court.”_ _**OP(C).1923/21**_ 8 4. The legal position being as above, the appellate court ought to have returned the memorandum of appeal for presentation before the High Court, instead of dismissing the restoration application. The only way out of the imbroglio, is for this Court is to set aside the order dismissing the appeal for default and to direct the appellate court to return the appeal memorandum for presentation before the proper court. In the result, the original petition is disposed of as under; Exhibits P3, P7 and P8 orders are set aside. The II Additional District Court, Thiruvananthapuram is directed to return the memorandum of appeal in A.S.No.386 of 2015 to the petitioner/appellant, within ten days of production of a copy of this judgment. **Sd/-** **V.G.ARUN, JUDGE** _vgs_ _**OP(C).1923/21**_ 9 ## **APPENDIX OF OP(C) 1923/2021** PETITIONER EXHIBITS - Exhibit P1 TRUE PHOTOCOPY OF JUDGMENT PASSED IN O.S.NO.220/2005 BY THE SUBORDINATE JUDGE'S COURT, ATTINGAL ON 15.06.2015. - Exhibit P2 TRUE PHOTOCOPY OF APPEAL MEMORANDUM IN A.S.NO.386/2015 DATED 25.09.2015 ON THE FILE OF DISTRICT COURT, THIRUVANANTHAPURAM. - Exhibit P3 TRUE PHOTOCOPY OF ORDER PASSED BY THE COURT OF IIND ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM IN DATED 28.05.2018. - Exhibit P4 TRUE PHOTOCOPY OF DISCHARGE CERTIFICATE ISSUED FROM THE SREE CHITHIRA THIRUNAL INSTITUTE OF MEDICAL SCIENCE AND TECHNOLOGY, THIRUVANANTHAPURAM ON 20.05.2019. Exhibit P5 TRUE PHOTOCOPY OF DISCHARGE SUMMARY ISSUED FROM SREE UTHRADAM THIRUNAL SUPER SPECIALTY HOSPITAL TO THE PETITIONER DATED 02.01.2015. Exhibit P6 TRUE PHOTOCOPY OF I.A.NO.1/2021 IN A.S.NO.386/2015 FILED BEFORE THE COURT OF IIND ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ON 20.09.2021. Exhibit P7 TRUE PHOTOCOPY OF ORDER IN I.A.NO.1/2021 IN A.S.NO.386/2015 DATED 21.10.2021 OF THE COURT OF IIND ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM. Exhibit P8 TRUE PHOTOCOPY OF ORDER IN I.A.NO.3/2021 IN A.S.NO.386/2015 OF THE DATED 21.10.2021 OF THE COURT OF IIND ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM.