IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 4440 of 2009(C) CMA.28/2008 of ADDL.DISTRICT COURT-I,MAVELIKKARA PETITIONER: --------------- K.P. CHANDRASEKHARAN PILLAI, S/O. PARAMESWARAN PILLAI, RESIDING AT RADHALAYATHIL, KARAZHMA MURI, VALLIKUNNAM VILLAGE, MAVELIKKARA TALUK. BY ADV. SRI.S.VINOD BHAT RESPONDENT: --------------- KESAVA PILLAI, S/O. GOPALAN NAIR, POURNAMI VEETTIL, ELIPPAKKULAM MURI, VALLIKUNNAM VILLAGE, MAVELIKKARA TALUK. ADV. SRI.B.VINOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/03/2009, THE COURT ON 25/03/2009, DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 4440 OF 2009 C ------------------------------------------------------ Dated this the 25th March, 2009 JUDGMENT The questions involved in this Writ Petition are: (1) Whether the Appellate Court which has no jurisdiction to deal with an appeal, should return the Memorandum of Appeal to be presented before the proper court; (2) After holding that it has no jurisdiction, could the Appellate Court decide the appeal on the merits; (3) Whether absence of a specific provision in the Code of Civil Procedure to return a Memorandum of Appeal would preclude the Appellate Court from returning the Memorandum of Appeal in a case where it has no jurisdiction and (4) Whether Order XXIII Rule 1 applies to Appeals and whether the Appellate Court has power to allow an Appeal to be withdrawn. 2. The writ petitioner filed O.S.No.21 of 2008, on the file of the Court of the Subordinate Judge, Mavelikkara, against the respondent for specific performance of an agreement for sale. An application for temporary injunction was filed by the plaintiff. The trial court dismissed the application. The writ petitioner filed a Civil Miscellaneous Appeal before the District Court. The respondent raised a contention that the lower Appellate Court has no jurisdiction to entertain the appeal, since the valuation of the suit is above Rs.2 lakhs. The lower Appellate Court held W.P.(C) NO.4440 OF 2009 :: 2 :: that the Appeal would lie only to the High Court and that the District Court has no jurisdiction. However, the lower appellate court decided the appeal on the merits. The writ petitioner prayed for permission to withdraw the Appeal with liberty to file an appeal before the High Court. The court below did not entertain that request on the ground that there is no statutory provision enabling the appellant to withdraw the Appeal with liberty to file the Appeal before the High Court. It was also held that Rule 1 of Order XXIII of the Code of Civil Procedure is applicable only to a Suit and it does not apply to an Appeal. The court below also thought that the Memorandum of Appeal having not been returned at the time of its filing, the disposal of the Appeal on the merits is required. 3. It is not in dispute that since the suit is valued at Rs.4,58,000/-, the District Court has no jurisdiction to entertain the Civil Miscellaneous Appeal, in view of Section 13 of the Kerala Civil Courts Act. 4. Section 106 of the Code of Civil Procedure provides that where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court. Section 107 of the Code of Civil Procedure enumerates the powers of the appellate W.P.(C) NO.4440 OF 2009 :: 3 :: court. Sub-section (2) of Section 107 provides that the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. Section 141 of the Code of Civil Procedure states that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Section 6 of the Code of Civil Procedure reads as follows: “6. Pecuniary jurisdiction:- Save in so far as is R WW WW otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.” Rule 10 of Order VII of the Code of Civil Procedure provides for return of plaint. The Rule says that the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. The Explanation to sub-rule (1) of Rule 10 states that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint. 4. 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 W.P.(C) NO.4440 OF 2009 :: 4 :: 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 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 Order VII Rule 10 read with Section 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. Section 151 of the Code of Civil Procedure would also enable the Appellate Court to exercise W.P.(C) NO.4440 OF 2009 :: 5 :: 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. 5. In Athmanathaswami Devasthanam v. K.Gopalaswami Ayyangar (AIR 1965 SC 338), the Supreme Court held thus: W.P.(C) NO.4440 OF 2009 :: 6 :: “When the Court had no jurisdiction over the subject matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint.” 6. In Peddi Siviah v. M/s. C.Ramanath, Firm (AIR 1961 Andhra Pradesh 327), the Andhra Pradesh High Court held thus: “In both the cases the lower appellate Court entered into merits which it was incompetent to do. It has been held in a catena of decisions that the proper course in such circumstances is to direct the lower appellate Court to return the memorandum of appeal for presentation to the proper Court applying the provisions of O.7, R.10 read with Sec.107 C.P.C. -- Narayan v. Tukaram, AIR 1923 Nag 310, Sukhdeoji v. Ramlal, AIR 1933 All 108, Sitaram Singh v. Tika Ram Singh, AIR 1942 Oudh 481 and Ramchandra v. Pannalal, AIR 1954 Raj. 191. There is also an observation in Kunhikutti v. Achotti, ILR 14 Mad 462 where a Division Bench consisting of Muthusami Ayyar and Wilkinson, JJ. observed that the order returning the petition or appeal for presentation to the proper tribunal was an order made with reference to the provisions of Ss.57 and 582 of the old Code of Civil Procedure which correspond to Order 7, Rule 10 and Section 107(2) of the present Code. The only case striking a different note brought to my notice is Sitarama Murti v. Lkshminarayanamurti, AIR 1943 Mad 185 where a second appeal against an incompetent appeal to the Subordinate Judge was dismissed. That appears to be a case where no appeal at all lay from the first Court's order and therefore no question of return of the appeal memorandum for presentation to proper Court arose.” 7. In Sukhdeoji and others v. Ram Lal (AIR 1933 Allahabad W.P.(C) NO.4440 OF 2009 :: 7 :: 108), it was held thus: “.. We think that when the learned Commissioner came to the conclusion that his jurisdiction was ousted and that the appeal must go to the civil Court the only way open to him was to return the memorandum of appeal to the appellant. In the absence of any specific provision permitting the sending of an appeal direct to the civil Court the provisions of O.7, R. 10 read with S.107(2), Civil P.C., would be applicable.” 8. Learned counsel appearing for the respondent submitted that the Appellate Court having decided the Appeal on the merits, when it has no jurisdiction to decide the Appeal, the judgment would be a nullity and the petitioner can file an appeal before the proper Court against the order of the trial court. The counsel submits that the petitioner cannot request for return of the Memorandum of Appeal, since the Appellate Court has decided the case on the merits. I am not inclined to accept this submission. The Appellate Court had no jurisdiction to decide the case on the merits, after having held that it had no jurisdiction to entertain the Appeal. An error of jurisdiction was committed by the lower Appellate Court. It is liable to be corrected. The petitioner need not be left to the risk of filing an Appeal to the High Court against the order of the trial court with a petition to condone the delay. An error committed by the Court should not cause prejudice to the litigant. The lower Appellate Court should have returned the Memorandum of Appeal to be presented before W.P.(C) NO.4440 OF 2009 :: 8 :: the proper court. 9. The petitioner had sought permission of the Appellate Court to withdraw the Appeal for presentation before the High Court. The view taken by the court below that the petitioner/appellant cannot seek permission to withdraw the appeal, since Rule 1 of Order XXIII of the Code of Civil Procedure does not apply to appeals, is also erroneous. When the Appellate Court has no jurisdiction to entertain the Appeal, the appellant before it would be entitled to seek permission to withdraw the Appeal for presentation before the proper court. Section 107(2) read with Rule 1 of Order XXIII confers power upon the appellate court to allow an appeal to be withdrawn. The Appellate Court should have, in my view, granted the request to withdraw the Appeal with permission to file the Appeal before the proper court. 10. For the aforesaid reasons, the judgment dated 9.1.2009 in C.M.A.No.28 of 2008, on the file of the Court of the Additional District Judge-I, Mavelikkara, is set aside. The Additional District Judge shall return the Memorandum of Appeal to the appellant in the appeal (writ petitioner) forthwith. The Writ Petition is allowed as above. (K.T.SANKARAN) W.P.(C) NO.4440 OF 2009 :: 9 :: Judge ahz/