- (1.) Briefly the facts are that the plaintiff filed an appeal in this Court on January 12, 1979 against the order of the Subordinate Judge Ist Class, Hissar dated December 4, 1978. The jurisdiction value of the suit was Rs. 1,00,670/-. The District Judge had the power to hear the appeal from the aforesaid order as the Punjab Courts Act had been amended. Now an application has been filed by the appellant under Order 7 Rules 10 and 10-A read with Section 151 of the Civil Procedure Code, praying that the appeal be sent to the District Judge, Hissar under the aforesaid order. The application has been opposed by the respondent.
(2.) It is contended by the learned counsel for the appellant that the provisions of Order 7 Rule 10-A of the Civil Procedure Code are applicable regarding appeals if these provisions are read with Section 107(2) of the said Code. In support of this contention, he has placed reliance on Peddi Siviah v. Messrs C. Ramanath, a firm carrying on business at General Bazar, Secunderabad per its proprietor Badrinath, 1961 AIR(AP) 327. We have heard the learned counsel for the parties and find force in the contention of the learned counsel for the petitioner. The Andhra Pradesh in Peddi Siviah's case observed that where an appeal from an order of the Subordinate Judge properly lay to the High Court, but it was wrongly entertained by the District Judge and allowed by him, the proper course to be followed in appeal to the High Court from the order of the District Judge 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. We are respectfully in agreement with above-said observations.
(3.) The next question that arises is as to whether the memorandum of appeal is to be returned to the appellant for presentation to the proper Court or this Court can send it to the District Judge. Rule 10-A of Order 7 of the Civil Procedure Code on which reliance has been placed by the learned counsel for the appellant states that where an application is made under sub-rule (2), the Court shall return the plaint to the petitioner for presentation to the proper Court and fix a date for appearance of the parties in the Court in which the plaint was proposed to be presented and give the plaintiff and the defendant notice of such date for appearance. The rule does not provide that the memorandum of appeal should be sent to the Court having jurisdiction by a Court to which it has been presented. In place of word 'plaint', the words 'memorandum of appeal', may be read in view of Section 107(2) of the Civil Procedure Code. In view of the aforesaid circumstances, there is no other alternative, but to return the memorandum of appeal to the appellant for presentation to the proper Court. We order accordingly. We, however, direct the respondent to appear in the Court of the District Judge, Hissar on August 20, 1979.;