- (1.) This is an appeal by he Plaintiffs against the decree of the Sub-Judge 1st class, Kapurthala dated 28-9-2005, dismissing their suit for the recovery of Rs. 5400 due on the basis of a simple mortgage in respect of two shops in Phagwara and one house in Kapurthala effected by the Defendant on 23-12-1990. The counsel for the Respondent relying upon Section 35, Sub-clause (2) of the Kapurthala State Statute Book has raised a preliminary objection that the appeal in this case does not lie to this Court but to the District Judge. Section 35 Sub-clause (2) provides that: An appeal from a decree or an appealable order of a Sub-Judge of any class shall lie to the District Judge. It is necessary to mention here that the suit was according to the Kapurthala Law instituted in the Court of the District Judge and was being tried by him on the original side when Ordinance x [10] of 2005 which aimed at consolidating and amending the Law relating to the Courts in the Patiala and East Punjab States Union, was promulgated and published in the Pepsu Government Gazette on 10th of Katik, 2005. By this Ordinance three classes of Sub-Judges with various powers were created and according to Section 80 of the Ordinance the present suit became triable by a Sub-Judge of the First Class. The District Judge, on the coming into force of Ordinance x [10] transferred the suit on 1-8-2005 to the file of the Sub-Judge, 1st class, Kapurthala whose decree is now under appeal. It is thus obvious that the suit was decided by a Court that was created by Ordinance x [10] of 2005 and the forum of appeal from its decree is regulated by Section 92 which enjoins that an appeal from a decree or order of a Sub-Judge shall lie to the District Judge where the value of the original suit in which the decree or order was made does not exceed five thousand rupees. The provisions of this section apparently preclude the appeal being taken to the District Judge inasmuch as the value of the suit is above Rs. 5000. The learned Counsel of the Respondent has laid stress on the commencing words of Section 49, Clause (1) Sub-section (e) whereof lays down that a judgment, decree or order of a Subordinate Judge where an appeal, does not lie to the District Judge owing to the value of the subject matter being beyond the appellate jurisdiction of the District Judge, or where there is a good ground to doubt as to which District Judge an appeal lies, shall lie to the High Court. The commencing words of Clause (1) are "except as otherwise provided by any law for the time being in force in the Union" and Mr. Atma Ram contends that since the Kapurthala Statute Book by virtue of Section 3 of Ordinance I [1] of 2005 is still in force in Kapurthala, its provisions must get preference over the procedure prescribed by Section 49 of Ordinance X [10] of 2005. The words "except as otherwise provided by any law" are followed by the words "for the time being in force in the Union." The learned Counsel had to admit that the Kapurthala Statute Book was never in force in the Union and that when it was in force it extended to the territories of the erstwhile Kapurthala State only. Now it remains to be seen whether this Statute Book was in force in Kapurthala even on either the date on which the decree under appeal was passed or the date on which the appeal in this Court was presented. Section 3 of Ordinance I [1] of 2005 repealed all laws in force in the covenanting States immediately before the date of the publication of that Ordinance andthe Kapurthala Statute Book must consequently be deemed to have been repealed on 25th Bhadon, 2005 when Ordinance I [1] was published i.e., before the decree in this case was passed or appeal preferred. Mr. Atma Ram however, relies upon the proviso to Section 3 according to which proceedings of any nature whatsoever pending on 25-5-2005 in the Courts or offices of any covenanting state were to be disposed of in accordance with the law in force for the time being in such state. This proviso cannot help the Respondent as there was no appeal pending on that date which must have been decided according to the Kapurthala State laws. The preliminary objection must thus fail and we hold that the appeal lies to the High Court and not to the Court of the District Judge.
(2.) Coming to the merits, we are of the view that the order of the Sub-Judge dismissing the Plaintiffs' suit without recording evidence cannot be upheld. On 10-8-2005 when the record was received by the Sub. Judge from the Court of the District Judge, the parties were present and the Defendant had to be examined as a witness of the Plaintiff. As the presiding officer was engaged in disposing of other work, the case was adjourned to 4-9-2005 and the Defendant directed to appear on that date to give evidence. On 4-9-2005 the counsel of the Plaintiffs expressed that in addition to the Defendant he intended to put in more witnesses. The case was again adjourned on his request on payment of Rs. 5 as costs to enable him to bring his witnesses on 28-9-2005. On 28-9-2005, he stated that the Mukhtar of the Plaintiffs who was conducting the suit on their behalf had died and that he should be allowed time to communicate with them but this request was declined and the suit dismissed.
(3.) On going through the various preceding orders present on the record, we are constrained to remark that the learned Sub Judge passed the orders on 10-8-2005, 4-9-2005 and 28-9-2005 without adverting to the different stages which the suit had already seen. Seven issues that arose from the pleadings were framed on 29-12-2001 and the onus of proving all of them was cast upon the Defendant. Thereafter, the suit went on rocking between the District Judge and the High Court till an ex parte decree in favour of the Plaintiff was passed on 7-1-2005. On an application by the Defendant, the ex parte decree was set aside on 22-6-2005 subject to the payment of Rs. 50 as costs. The costs were paid on 1-8-2005 when a formal order of revival of the proceedings was made. After setting aside the ex parte decree on 1-8-2005 the District Judge transferred the case to the file of the Sub-Judge 1st class Kapurthala and directed the parties to appear in his Court on 10-8-2005. The previous orders were not looked into on 10-8-2005 and the Sub-Judge proceeded on the assumption that the Plaintiff was to lead evidence although the burden of proving the issues was upon the Defendant. The orders that followed on 4-9-2005 and 28-9-2005 were also made under that misconception. The ex parte decree having been set aside the Defendant was to lead evidence to discharge the onus of the issues 1 to 7. In view of what has been observed above the judgment of the learned Sub-Judge must be reversed. We, therefore, accept the appeal with costs and send the case back to the Sub-Judge 1st class Kapurthala for proceeding with it in accordance with law. As it is an old suit, it should be decided early. Parties through their counsel have been directed to appear before the Sub-Judge on 18th of Chait, 2006. Chopra, J.;