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Judgment
Lokeshwar Singh Panta, J.—This first appeal has been directed against the decision of District Judge, Una dated 5-6-1995 whereby he has ordered to return the memorandum of appeal of the Appellants-Defendants herein for presenting the same before the Competent Court of law as according to him that Court has no jurisdiction to entertain the appeal.
The relevant facts giving rise to this appeal are as follows:
Respondent-Plaintiff herein filed a suit in the year 1991 based on the premise that she was married to Sh. Nanak Singh son of Hira Singh about 25 years ago. The Respondent was the second wife of said Nanak Singh and he has two daughters from first wife who were Defendants and are Appellants in the present appeal. Nanak Singh died prior to the institution of the suit leaving behind the Respondent and Appellants. The Appellants inherited the immovable property of their father. The Respondent was neither having any property nor has any source of income. She has not re-married after the death of her husband. She stated that the Appellants who inherited immovable property of deceased Nanak Singh are liable under the law to maintain Respondent and suit u/s 20 read with Section 28 of the Hindu Adoption and Maintenance Act (78 of 1956) was instituted. The Respondent prayed for a sum of Rs, 300 per month as maintenance.
The Appellants contested the suit by raising preliminary objections, inter alia, that the suit was not maintainable, the Respondent was estopped by her act and conduct to file the suit. On merits, it was alleged that the Respondent is not recorded as legal heir of the deceased Nanak Singh in any where. They pleaded that the Respondent has been serving as Peon in a Nursery School at Jhalara. They prayed for dismissal of the suit.
Reply to the written statement was filed by the Respondent controverting the statements of the Appellants and re-asserted his version in the plaint.
On the pleadings of the parties, following issues were settled on 26-12-1991 by the trial Court:
Whether the suit is not maintainable as alleged? OPD.
Whether the Plaintiff is estopped from filing the suit by her act and conduct? OPD.
Whether the Plaintiff is entitled for maintenance allowance, if so, to what amount? OPP.
Relief.
The trial Court after appreciation of the evidence and after hearing the learned Counsel for the parties, decreed the suit by granting Rs. 300 per month as maintenance to the Respondent from the Appellants from the date of institution of the suit. Feeling aggrieved, the Appellants preferred an appeal before the learned District Judge, Una, which has been returned to them for the reasons stated aforesaid. Hence, the Appellants have approached this Court by way of present appeal.
It has been urged at a preliminary stage by Sh. H.K. Bhardwaj learned Counsel appearing on behalf of the Respondent that this appeal is not maintainable against the impugned order of the learned District Judge whereby the memorandum of appeal of the Appellants was returned to them for filing in the Competent Court. Sh Bhardwaj learned Counsel has drawn our attention to Order 43, Rule 1(a), CPC whereby only order returning a plaint under Rule 10 of Order VII, CPC is appealable. It is urged that the plaint does not include memorandum of appeal as such this provision is not applicable in the present case. According to Sh. Bhardwaj, the impugned order is revisable u/s 115, Code of Civil Procedure. In support of his submission, he has relied upon judgment of this Court in 1972 (2) SLJ 44 , Shri Kesru v. Shri Mehar Singh in that case, the learned Single Judge held that an order returning memorandum of appeal for presentation to proper Court is not amenable to appeal under Sections 104 and 105, read with Order 43, Rule 1(a) of the CPC Besides, this decision, in number of decisions, it has been held that no appeal lies from an order of District Judge, returning the memorandum of appeal for presentation of the same before another Court of Competent jurisdiction See: Bankey Lal and Others Vs. Meghraj and Another, ; AIR 1930 Lah 832 , Kandhai Mahton and Another Vs. Prasad Mahton and Another, , Ramchandra Vs. Pannalal, , Ram Chandra v. Panna Lal. A Division Bench of Rajasthan High Court in Ram Chandra v. Panna Lal AIR 1954 Raj 191, observed as under:
Order 43, Rule 1(a) definitely provides that an appeal would lie from an order, under Rule 10 of Order VII, returning a plaint to be presented to the proper court, There is, in our opinion, no warrant for substituting the words ''memorandum of appeal'' for the word ''plaint'' in this clause simply because of the existence of Section 107(2), Code of Civil Procedure. Right of appeal is a creature of statute, and unless there is a clear provision to that effect, there can be no such right. Order 43, Rule 1(a) does not make a clear provision for appeal from an order returning a memorandum of appeal, and therefore no appeal lay from the order of the District Judge. It was only possible for the Appellant to file a revision against that order.
In the present case, the learned District Judge has Returned the memorandum of appeal to the Appellants for presenting the same before the competent court of law. Under the Code of Civil Procedure, certain specific orders mentioned in Section 104 and Order 43, Rule (1) only are appealable and no appeal lies from any other order.
We respectfully agree with the law laid down by the learned Judges in the cases referred to above. No contrary decision has been brought to our notice by the learned Counsel for the Appellants. The appeal has to be dismissed on this short ground.
Shri Ajay Sharma learned Counsel appearing on behalf of the Appellants has prayed that in case the appeal is not maintainable, it may be treated as revision petition. We do not accept this prayer. The Appellants may assail the impugned order of the learned District Judge in revision petition, if they are so advised, as we have not expressed any opinion about the other questions of law and facts involved in the instant appeal.
For the foregoing reasons, the appeal fails and is dismissed leaving the parties to bear their own costs.