// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.4228/2008 Mahaveer Prasad S/o Shri Ghewar Chand Versus Digambar Jain Mandiran and Samaj Vyavasthapak Samiti Sarwad (Registered trust) through Care Taker Trustee, Chief Manager and President Sujan Mal Jain and Others Date of Order ::: 08.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Jai Prakash Gupta, Counsel for petitioner Shri M.K. Jain, Counsel for respondents No.1 to 3 #### By the Court:- Admit. Shri M.K. Jain, Advocate, appears for the respondents No.1 to 3, who are contesting respondents. Learned counsel for both the parties admit that the remaining respondents No.4 to 11 are only Proforma respondents, therefore, at their request, the service of respondents No.4 to 11, is dispensed with. Heard learned counsel for the parties. The petitioner has preferred this writ petition against the impugned order dated 16th April, 2008, passed by the Additional District Judge, Kekri, District Ajmer, whereby he // 2 // dismissed the appeal of the petitioner on the ground that he has no jurisdiction to entertain the appeal. It appears that the plaintiff- respondents initially filed a suit for declaration and injunction in the Court of Civil Judge (Jr.Div.) Sarwad, District Ajmer, but, on their application, the same was transferred to the Court at Nasirabad, where it has been decreed and, being aggrieved with the same, the defendant-petitioner preferred an appeal before the Additional District & Sessions Judge, Kekri, whereas the same should have been filed before the District Judge, Ajmer. The Additional District Judge, vide its order dated 16th April, 2008, came to a conclusion that he has no jurisdiction to entertain and decide the appeal, therefore, he dismissed the same. The learned counsel for the petitioner contended that the Additional District Judge, Kekri, committed an illegality in dismissing the appeal of the petitioner for the simple reason that when he had no jurisdiction to entertain and decide the appeal then he could not have dismissed the appeal also and at the most he could have returned the appeal to appellants for presentation thereof in the // 3 // appropriate court. He, therefore, contended that the impugned order be set-aside and the memo of appeal filed by him be ordered to be returned to him for its presentation in the appropriate court. The learned counsel for the respondents has no objection in returning the memo of appeal to the petitioner to file the same before the competent court having jurisdiction. After considering the submissions of both the parties, I am of the view that the Additional District Judge, Kekri has committed an illegality in dismissing the appeal of the petitioner. Had the said court no jurisdiction to entertain and decide the appeal, he could have returned the same to the appellant for its presentation before the appropriate court but certainly it could not have dismissed it. Consequently, the writ petition is allowed. The impugned order dated 16th April, 2008 passed by the Additional District & Sessions Judge, Kekri, District Ajmer, is set- aside and the said court is directed to return the memo of appeal, filed by the petitioner to him for its presentation in the competent court having jurisdiction. The learned counsel for the petitioner contended that the return of memo of appeal may // 4 // take some time whereas the respondent has already filed execution application and attachment warrant has already been issued, therefore, the impugned decree passed by the trial court may be stayed for a period of 15 days. The prayer appears to be reasonable. It is therefore, directed that the impugned decree passed by the trial court shall remain stayed for a period of 15 days. It will be open for the petitioner to argue his stay application filed along-with the appeal in the competent court having jurisdiction. The costs is made easy. (Narendra Kumar Jain) J. //Jaiman//