Syed MUHAMMAD YOUSUF SHAH Versus ADDITIONAL DISTRICT JUDGE

This writ petition is directed against order dated 21‑3‑1083 of tile learned Additional District Judge, Gujrat whereby he acceded to the request of the petitioner and returned the memorandum of appeal for presentation to competent Court of law.

2. The facts giving rise to this petition are that respondent No. 2 was married to petitioner on 11‑11‑1969. She instituted a suit on 23‑1‑1976 for recovery of Rs. 80,000 as her dower amount. The learned Judge Family Court, decreed her suit against the petitioner on 23‑5‑1981. The petitioner challenged the aforesaid judgment and decree in appeal. The petitioner's counsel moved an application to the learned lower appellate Court for return of the Memorandum of Appeal for filing the same before the competent Court of law. Learned counsel appearing on behalf of the respondent No. 2 did not object to the return of the appeal. The learned lower appellate Court vide his order dated 21‑3‑1983 returned the Memorandum of Appeal and other connected papers to the petitioner for presentation of the same to a competent Court of law hence this petition.

3. Learned counsel for petitioner contended that the petitioner erroneously sought return of Memorandum of Appeal assuming that the learned lower appellate Court had no jurisdiction to adjudicate upon the matter. It was submitted that the learned Additional District Judge erred to return the same to the petitioner. It was submitted that the learned appellate Court had the jurisdiction to decide the appeal on merits because the impugned judgment was passed by a Judge Family Court, presided over by a Civil Judge. It was argued that no estoppel against the Statute could be pleaded. It was the wrong advice of the learned counsel for petitioner due to which the petitioner sought return of the Memorandum of Appeal.

4. Learned counsel for the respondent No. 2 opposed this petition and stated that the petitioner is not an aggrieved person so as to maintain this Constitutional petition. He himself sought return of the Memorandum of Appeal and the learned lower appellate Court had no option but to return the same to him. It was also pointed out that in fact the petitioner hack already availed another adequate opportunity of approaching the lower appellate Court for recall of the aforesaid order and decision of the appeal on merits, as such this petition has become infructuous and is otherwise untenable.

5. I have heard learned counsel for the parties and have perused the documents on the file. Undoubtedly it was, on petitioner's move that the Memorandum of Appeal was returned to him. The question as to whether the learned lower appellate Court was under obligation to return the plaint on the request of the learned counsel for petitioner or not, if decided at this stage would prejudice petitioner's case before the lower appellate Authority seeking re‑call of the impugned order. As the petitioner has already availed another remedy by re‑approaching the lower appellate Court for the redress of his grievance this petition is dismissed on this ground alone. There shall be no order as to costs.

M.Y.H./3029/L

Petition dismissed.