Suresh Chandra Kabra and Another vs T. Vishnu Murthy and Another

C.Y. Somayajulu, J.—Since the parties in both the Revision Petitions are same, they are being disposed of by a common order.

These Civil Revision petitions arise out of orders dt. 1-2-1999 in C.M.A. Nos. 126 and 127 of 1998 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad. C.MA. No. 127 of 1998 was filed against the order dt. 16-3-1998 in I.A. No. 663 of 1997 in O.S. No. 674 of 1997 on the file of the Court of the VII Additional Judge, City Civil Court, Hyderabad. C.M.A. No. 126 of 1998 before the II Additional Chief Judge, City Civil Court arose out of I.A. No. 1184 of 1997 in O.S. No. 674 of 1997 on the file of the Court of the VII Additional Judge, City Civil Court, Hyderabad.

The suit O.S. No. 674 of 1997 was filed by the revision petitioners in both the revisions for a declaration that the decree in O.S. No. 2248 of 1989 on the file of the VII Additional Judge, City Civil Court, Hyderabad, was obtained on a forged agreement of sale and for other reliefs. All the reliefs claimed are valued at Rs. 10,82,340/- and and a Court Fee of Rs. 17,898/- was paid by the revision petitioners. I.A.No. 663 of 1997 was filed by the revision petitioners seeking an injunction restraining the respondents from alienating the suit property, and I.A. No. 1184 of 1997 was filed for an injunction restraining the respondents from changing the nature of the suit property, and another I.A. was filed seeking appointment of a Commissioner. The trial Court, by the order dt. 16-3-1998 dismissed all the three petitions. The revision petitioners preferred C.M.A. No. 126 of 1998 against the order in I.A. No. 1184 of 1997, and C.M.A. No. 127 of 1998 against the order in I.A. No. 663 of 1997 before the Additional Chief Judge, City civil Court, and both the appeals were dismissed by the learned Additional Chief Judge. Questioning the said order of dismissal these two revision petitions are filed.

Arguments were addressed at length by the learned Counsel for both sides. During the course of arguments it is stated by the learned Counsel for revision petitioners that the appeals before the Additional Chief Judge''s Court, against the order of the trial Court, are not maintainable, because as per the Civil Courts Act appeals against decree of more than one lakh and above have to be preferred to High Court as per Section (1)(b) of the A.P. Civil Courts Act, and since as per Section 106 CPC appeals against orders have to be filed in the Court to which an appeal against the decree in the suit lies CMAs filed before the learned Additional Chief Judge, are not maintainable, and so it is clear that the orders under revision are passed by a Court which does not have jurisdiction to entertain the C.A.S. The contention of the learned Counsel for the respondents is that the revision petitioners who chose the forum of appeal cannot contend that the Court which entertained the appeals and dismissed them on merits had no jurisdiction to entertain, the appeals. Be that as it may the fact remains that an appeal before the Chief Judge, City Civil Court, against any appealable order passed in O.S. No. 674 of 1997 on the file of VII Additional Judge is not competent, in view of Section 9(1) (b) of the A.P. Civil Courts Act read with Section 106 CPC because the value of the suit O.S. No. 674 of 1997 is more than ten lakhs.

The learned Counsel for the revision petitioners, relying on Peddi Siviah Vs. C. Ramanath, contended 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 Order 7 Rule 10 read with Section 107 C.P.C.

Since the value of the suit O.S. No. 674 of 1997 is more than ten lakhs, an appeal against the decree in the said suit can lie only to this Court but not to the Court of the Chief Judge in view of Section 9(1) (b) of the Civil Courts Act. Therefore appeals against appealable orders in that suit also would lie to this Court but not to the Chief Judge''s Court as per Section 106 CPC. Hence it is clear that the Chief Judge had no jurisdiction to entertain the CMAs. Therefore in view of the decision Peddi Sivaiah v. C. Ramanath the revisions have to be allowed and the lower appellate Court has to be directed to return the appeals for presentation before the proper Court. The learned Counsel for the respondent can raise the contentions now raised when the appeals are presented before the proper Court, and Court can decide the question whether the proceedings before the lower appellate Court were presented under a bona fide mistake or not, for excluding the delay in filing of the appeals, as per Section 14 of the Limitation Act.

Since the learned trial Judge observed in his order that any constructions made in the scheduled property would be subject to the result of the suit, I feel that there is no need to pass any order regarding the construction allegedly going on in the suit property. The contention of the learned Counsel for the Revision Petitioners is that if the respondents were to alienate the suit property during the pendency of the proceedings it would lead to multiple of proceedings. Since a direction is being given to the lower appellate Court to return the proceedings for being presented before the proper. Court, the said contention can be raised after presenting the appeal before the proper Court, and at this stage I feel that no order need be passed regarding the contention of alienation of the suit property.

In view of the above, the revisions are allowed and the lower appellate Court is directed to return the C.M.A. Nos. 126 and 127 of 1997 to the Revision Petitioners for presentation before the proper Court.