Preetam Das vs Anjuman Islamia Trust

Narain Singh "Azad", J.

Arguments Heard.

The petitioner seeks quashment of order dated 10th September, 1999, passed by Twelth Addl. Sessions Judge, Jabalpur, in Criminal Appeal No. 36/99, wherein the order dated 30.3.1999 passed by Fourteenth Civil Judge, Class II, Jabalpur, in Civil Suit No. 11-A/98, was in challenge. The Fourteenth Civil Judge, Class II, Jabalpur disallowed the petitioner''s application by aforesaid order dated 30.3.1999 passed in Civil Suit No. 11-A/98 which was filed U/S. 340 of the Code of Criminal Procedure.

A perusal of certified copy of order dated 10th September 1999, passed by XIIth Addl. Sessions Judge Jabalpur, in Criminal Appeal No. 36/99, reveals that this petitioner filed the application U/S. 340 of the Cr.P.C., against the non-applicant/plaintiff, with these allegations that without there being any order of the Court, the non-applicant has added the words against the digits and has also made triable amendment at two places, in the plaint Earlier, the Second Addl. Sessions Judge, Jabalpur, returned the Criminal Appeal No. 36/99 on 20th August 1999, with this observation that he has no jurisdiction to hear the appeal as the Court of XIIth Addl. Sessions Judge, alone has jurisdiction to hear the appeal against the order passed by XIVth Civil Judge, Class II, Jabalpur, as per distribution memo issued by District Judge, as it appears by reading of photocopy of certified copy of order dated 20.8.1999 passed by IInd Addl. Sessions Judge, Jabalpur. On a consideration of order sheet dated 27th August, 1999, which is noted to have been recorded by Second Addl. Sessions Judge, in aforesaid copy of certified copy, it is also noted that the learned Sessions Judge, Jabalpur, thereafter transferred the Criminal Appeal No. 36/99, to the Court of XIIth Addl. Sessions Judge, Jabalpur, for disposal. It is under these circumstances that the Court of XIIth Addl. Sessions Judge, Jabalpur, disposed of Criminal Appeal No. 36/99, on 10th September, 1999.

It is found explained by this Court in Harishankar Kamarlal Vashiya Vs. Khayalfchandra Roopchandra Goyal, reported in 1992 M.P.L.J. 15, that in case a Civil Judge considers an application moved U/S. 340 of the Cr.P.C, then an appeal been filed U/S. 341 of the Cr.P.C, the same shall lie to the District Judge or the Court of Addl. Judge to the Court of District Judge, as the case may be, to whom the Court of Civil Judge which disposed of petition U/S. 340 of the Cr.P.C. is subordinate according to distribution memo. It is further found explained by this Court in aforesaid case that such an appeal is to be heard by the appellate Court exercising civil jurisdiction and hence the order passed by the Addl. Sessions Judge, on entertaining such appeal, would be without jurisdiction and a nullity. Consequently, theorder dated 10th Sept. 1999, passed by XIIth Addl. Sessions Judge, Jabalpur, in Criminal Appeal No. 36/99, is found liable to be set aside in axercise of inherent powers, as the same is a nullity, on been passed without jurisdiction.

Thus, this petition is allowed and order dated 10th September, 1999, passed by XIIth Addl. Sessions Judge Jabalpur, in Criminal Appeal No. 36/99, is set aside. The District Judge, Jabalpur, is directed to dispose of the Criminal Appeal No. 36/99, himself if he has jurisdiction or to make over the same to the Court of Addl. District Judge, who as per distribution memo, issued by him, had the jurisdiction to hear appeals, from the judgments or orders passed by XIVth Civil Judge, Class II, Jabalpur, at the relevant time i.e. on 13th March, 1999.