FAO No.2524 of 2007 -1 -
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
FAO No.2524 of 2007
Date of Decision : 25.2.2009
Jatinder Kaur and another
..Appellants.
Vs.
Jaskirat Kaur and others
..Respondents.
CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN
Present: Mr.S.C.Chhabra, Advocate for the appellants.
Mr.Sandeep Khungar, Advocate for respondent No.1.
None for respondents No.2 and 3.
Mr.Sardevinder Goyal, Advocate for respondent No.4.
RAKESH KUMAR JAIN, J.(ORAL)
This appeal is directed against the order dated 9.5.2007 passed
by Additional Civil Judge (Senior Division), Ferozepur (Exercising the
powers of learned District Judge, Ferozepur) whereby an application under
the Indian Succession Act, 1925 (for short `the Act’) has been allowed and
succession certificate has been issued to the applicant Jaskirat Kaur
(respondent No.1).
At the very outset, learned counsel for respondent No.1 has
contended that the present appeal filed by the appellants (respondents No.2
and 3 before the Court below) under Section 384(1) of the Act is not
maintainable. It is contended that according to Section 384(1) of the Act, an
appeal shall lie to the High Court from an order of the District Judge
FAO No.2524 of 2007 -2 –
granting, refusing or revoking a certificate and the High Court may, if it
thinks fit, by its order on the appeal declare the person to whom the
certificate should be granted and direct the learned District Judge on
application being made, therefore, to grant it accordingly, in supersession of
the certificate, if any, already granted. He further contended that application
under Section 372 of the Act has been filed before the Additional Civil
Judge (Sr.Divn.) Ferozepur exercising the powers of learned District Judge
as a delegate of the District Judge in view of the provisions of Section 388
(1) of the Act. He further submits that if the application under Section 372
of the Act has been filed under Section 388(1) of the Act then according to
its Proviso, the appeal shall lie under Section 388(2) of the Act to District
Judge and not to the High Court. The relevant provisions of Sections 384
and 388 are reproduced as under :
“Section 384. Appeal- (1) Subject to the other provisions of
this Part, an appeal shall lie to the High Court from an order of
a District Judge granting, refusing or revoking a certificate
under this Part, and the High Court may, if it thinks fit, by its
order on the appeal, declare the person to whom the certificate
should be granted and direct the District Judge, on application
being made therefore, to grant it accordingly, in supersession of
the certificate, if any, already granted.
(2)An appeal under sub-section (1) must be preferred within the
time allowed for an appeal under the Code of Civil
Procedure, 1908 (5 of 1908).
(3)Subject to the provisions of sub section (1) and to the
provisions as to reference to and revision by the High Court
FAO No.2524 of 2007 -3 –and as to review of judgment of the Code of Civil Procedure,
1908, (5 of 1908.) as applied by Section 141 of that Code, an
order of a District Judge under this Part shall be final.”
“Section 388 Investiture of inferior Courts with jurisdiction
of District Court for purposes of this Act – (1) The State
Government may by notification in the Official Gazette, invest
any Court inferior in grade to a District Judge with power to
exercise the functions of a District Judge under this Part.
(2)Any inferior Court so invested shall, within the local limits
of its jurisdiction, have concurrent jurisdiction with the
District Judge in the exercise of all the powers conferred by
this Part upon the District Judge, and the provisions of this
Part relating to the District Judge shall apply to such an
inferior Court as if it were a District Judge :
Provided that an appeal from any such order of an
inferior Court as is mentioned in sub section (1) of Section 384
shall lie to the District Judge, and not to the High Court, and
that the District Judge may, if he thinks fit, by his order on the
appeal, make any such declaration and direction as that sub
section authorises the High Court to make by its order on an
appeal from an order of a District Judge.
(3)An order of a District Judge on an appeal from an order of
an inferior Court under the last foregoing sub section shall,
subject to the provisions as to reference to and revision by
the High Court and as to review of judgment of the Code of
Civil Procedure, 1908 (5 of 1908), as applied by section 141
FAO No.2524 of 2007 -4 –of that Code, be final.
(4)The District Judge may withdraw any proceedings under this
Part from an inferior Court, and may either himself dispose
of them or transfer them to another such Court established
within the local limits of the jurisdiction of the District Judge
and having authority to dispose of the proceedings.
(5) A notification under sub section (1) may specify any
inferior Court specially or any class of such Courts in any
local area.
(6)Any Civil Court which for any of the purposes of any
enactment is subordinate to, or subject to the control of, a
District Judge shall, for the purposes of this section, be
deemed to be a Court inferior in grade to a District Judge.”
In order to substantiate his argument, learned counsel for
respondent No.1 has relied upon decisions in Mosamatt Parmeshwari
Devi and another v. Geeta Devi and others AIR 2001 PATNA 107;
Vadia Banerjee Vs. Sardar 1999(2) Civil Court Cases 129(H.P.);
Karunamoyee Sett & Others Vs. Lakshmirani Devi & Others 1994(1)
HLR 37 (DB) (Cal) AND Manohar son of Bapurao Sapre Vs. Bhaurao
son of Tukaramji Shirbhate and another AIR 1996 Bombay 29.
I have given my thoughtful consideration to the contentions
raised by learned counsel for respondent No.1 and perused the record.
Undisputedly, in this case the powers of learned District Judge
have been delegated to the Civil Judge (Sr.Division), Ferozepur who has
decided the application under Section 372 of the Act. Had the application
been decided by the District Judge himself in whatever manner, the appeal
FAO No.2524 of 2007 -5 –
would have definitely been maintainable before the High Court but since the
application under Section 372 of the Act has been decided by a delegate of
the District Judge then in view of Proviso to Section 388(1)(2), the appeal
shall lie to the District Judge and not to the High Court. In the case of
Mosammat Parmeshwari Devi and another Vs. Geeta Devi and others
(supra), it is held as under:
“It is manifest from the provision of S.388(2) and its
proviso clause that any inferior Court who has been invested
with the power to exercise the function of a District Judge shall
within the local limits of its jurisdiction have concurrent
jurisdiction with the District Judge in exercise of all the powers
conferred by this part upon the District Judge but the proviso
clause makes it abundantly clear that where the inferior Court
has passed any order under sub-sec.(1) of S.384, then the
appeal shall lie to the District Judge and not to the High Court.”
“The submission of the learned counsel that the District
Judge has got no pecuniary jurisdiction to entertain an apper
where the jurisdiction exceeds Rs.One lac has got no force in it
because there is no such bar under the Act. The decision cited
by the learned counsel in the case of Bhim Singh Vs. Mohan
Lal Agarwal, 1991(2) Pat.LJR 325, will have no application
in this case which relates to the case under the general
provision of the C.P.C. and not under the provision of this
Act.”
“Relying upon the aforesaid decision, I hold that the
appeal against the order passed by the Subordinate Judge shall
FAO No.2524 of 2007 -6 –lie to the District Judge and not before the High Court in view
of the provision of S.388 (2) and proviso clause of the Act.”
Similar view is taken in Vadia Banerjee Vs. Sardar (supra);
Karunamoyee Sett & Others Vs. Lakshmirani Devi & Others (supra)
and Manohar son of Bapurao Sapre Vs. Bhaurao son of Tukaramji
Shirbhate and another (supra).
In view of the consistent view of different High Courts on this
issue, I hold that the present appeal is not maintainable having been filed
before this Court against the order passed by Addl.Civil Judge (Sr.Division)
Ferozepur, who has decided the case as a delegate of the District Judge.
Therefore, the present appeal is dismissed as such.
At this stage, learned counsel for the appellant has prayed that
the present appeal has been filed in this Court in compliance with the
provisions of Section 388(3) of the Act within the period of limitation under
the mistaken belief that since the Addl.Civil Judge (Sr.Divn.) has exercised
the powers of District Judge, therefore, the appeal tantamounts to have been
decided by the District Judge himself.
In view of the peculiar facts and circumstances of the case, the
appeal is disposed of with liberty to the appellant to file an appeal against
the order passed by Addl.Civil Judge (Sr.Divn.), Ferozepur dated 9.5.2007
before the appropriate Court in accordance with law.
(Rakesh Kumar Jain)
25.2.2009 Judge
Meenu