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Tirukappa Vs. Kamalamma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 199 of 1964
Judge
Reported inAIR1966Kant1; AIR1966Mys1; ILR1965KAR211; (1965)1MysLJ329
ActsHindu Marriage Act - Sections 10, 21, 23 and 28; Bengal Money Lenders Act - Sections 36(6); Hindu (Bigamy Prevention and Divorce) Act - Sections 5(4); Code of Criminal Procedure (CrPC) , 1973 - Sections 4(1), 9, 11 and 141 - Order 9, Rules 8, 9 and 13 - Order 23, Rule 1(3)
AppellantTirukappa
RespondentKamalamma
Excerpt:
.....alternative remedy - sections 10 and 28 of hindu marriage act and order 9 rules 8 and 9 of code of civil procedure - whether order dismissing proceedings under hindu marriage act for default of petitioner's appearance under order 9 rule 8 appealable order - whether application to trial court under order 9 rule 9 operates as bar to appeal under section 28 - order dismissing proceedings under hindu marriage act for default of petitioner's appearance in proceedings under section 10 is regarded as decree under act and as such appealable order under section 28 - further order 9 rule 9 provides remedy against orders made under order 9 rule 8 - petitioner having availed remedy under order 9 rule 9 not entitled to pursue alternative remedy of appeal. held see paras 7 and 23. - code of civil..........at chitradurga miscellaneous petition no. 97 of 1962 against his wife under section 10 of the hindu marriage act praying for a decree for judicial separation. the said petition was filed on 16th october 1962. the respondent appeared on 22nd december 1962 and was granted time to file her objections till 19-1-1963. after receiving her objections on the latter date, the matter was posted for evidence to 23rd february 1963. as the judge was on casual leave on the said date, it was adjourned to 30th march 1963. on the date, it was adjourned at the request of the appellant petitioner's counsel. four similar adjournments followed at the request of the petitioner's counsel until on 1-2-1964 the civil judge came to passes the following order.'petitioner by sri. n. s. a. respondent by sri......
Judgment:

Narayana Pai, J.

(1) The appellant filed before the court of the civil Judge at Chitradurga Miscellaneous Petition No. 97 of 1962 against his wife under Section 10 of the Hindu Marriage Act praying for a decree for judicial separation. The said petition was filed on 16th October 1962. The respondent appeared on 22nd December 1962 and was granted time to file her objections till 19-1-1963. After receiving her objections on the latter date, the matter was posted for evidence to 23rd February 1963. As the Judge was on casual leave on the said date, it was adjourned to 30th March 1963. On the date, it was adjourned at the request of the appellant petitioner's counsel. Four similar adjournments followed at the request of the petitioner's counsel until on 1-2-1964 the Civil Judge came to passes the following order.

'Petitioner by Sri. N. S. A. Respondent by Sri. B.M. Evidence: Sri. N.S.A. prays for permission to retire for want of instructions. Petitioner called out and absent. Respondent by Sri. B.M. petition is dismissed. No costs'

The appeal is against the said order of 1-2-1964.

(2) It is stated that the appellant has also filed before the civil Judge an application under Rule 9 of Order IX of he Code of Civil Procedure to set aside the same order dismissing his petition for default.

(3) Mr. Shankarlingappa, learned counsel for the respondent, has raised a preliminary objection contending that the appeal before this Court is not maintainable firstly on the ground that the order appealed from cannot be said to be an appealable order at all, and alternatively on the ground that the appeal is barred by the petitioner having chosen to move the lower Court under Rule 9 of Order IX of the Code of Civil Procedure.

(4)The answer made to this preliminary objection by Mr. Tarakaram on behalf of the appellant is that the order of the lower court is clearly appealable under Section 28 of the Hindu Marriage Act and that the application under Rule 9 of Order IX of the Code was presented to the lower court after the presentation of this appeal on his advice because the question whether a petition under any of the sections of the Hindu Marriage Act can be dismissed under Rule 8 of Order IX of the Code of Civil Procedure is itself a matter for some doubt.

(5) Whether or not the provisions of Order IX of the Code of Civil Procedure apply to or may be invoked in proceedings under the Hindu Marriage Act, we do not think that the respondent is right in contending that the order appealed from is not an appealable order at all.

(6) As pointed out by this court in Dhulappa v. Krishnabai, AIR 1962 Mysore 172, appealability of orders made under the Hindu Marriage Act is provided for in section 28 of the Act which divides adjudications or determination under the said Act into two categories--decrees and orders,--although according to the definitions contained in the Code of Civil Procedure all such determinations can be regarded only as orders. It is also pointed out that the purpose of such nomenclature is to provide for the possibility of two appeals, under sections 96 and 100 of the Code of Civil Procedure read with S. 28 of the Hindu Marriage Act so far as determination called decrees therein are concerned, and to provide, in all cases for one appeal against determinations called orders under that Act.

(7) Order IX of the Code deals exclusively with suits, i.e., original proceedings commenced with the presentation of a plaint under the Code of Civil Procedure. An order of dismissal for default of plaintiff's appearance under Rule 8 of Order IX of the said Code is not one of the appealable orders under Rule 1 of Order XLIII. The reason therefor is obvious, viz., that the provisions of Rule 9 of Order IX precluding the plaintiff form bringing a fresh suit on the same cause of action render the order of dismissal under Rule 8 a final adjudication against the plaintiff and should therefore be followed by a regular decree dismissing the suit, against which decree the plaintiff would have right of appeal. By parity of reasoning, an order dismissing a proceeding under the Hindu Marriage Act for the default of petitioner's appearance under Rule 8 of Order IX of the Code.--if it applies to such proceedings,--should necessarily amount to a final determination of such proceedings, and if the proceeding is one under section 10 as in the present case, such final adjudication should be regarded as a decree within the meaning of the Act and therefore appealable as such under section 28 of the Act as explained by this Court in AIR 1962 Mys 172.

(8) In any event therefore, there can be no doubt that the order appealed from in this case is clearly an appealable order.

(9) For determining the effect of the second argument, viz., that the appellant's application to the trial court under rule 9 of Order 9 of the Code of Civil Procedure operates as a bar to this appeal. It is necessary to examine the question whether rules 8 and 9 of the said Order 9 apply to proceedings under the Hindu Marriage Act.

(10) Starting with the undoubted position that the jurisdiction and powers under the Hindu Marriage Act are vested in and exerciseable by ordinary civil Courts, there should not prima facie be any difficulty in accepting the normal consequences of such a situation, viz., that the procedure prescribed by the Code of Civil Procedure is available. That is the general effect of Ss. 9, 4(1) and 141 of the Code of Civil Procedure. That is also what, in our opinion, is provided by section 21 of the Hindu Marriage Act itself which reads as follows:

'Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.'

(11) In interpreting the language of this section emphasis has been placed on two expressions, viz., that the Civil Procedure Code only 'regulates' the proceedings under the Act and that such regulation is subject to other provisions contained in the Act.

(12) The first expression, it is suggested, has the same effect as Section 141 of the Code of Civil Procedure according to which what is made applicable to all proceedings in any Court of civil jurisdiction is 'the procedure provided in the Code'. On this basis, some cases are cited before us in which an attempt has been made to distinguish between those provisions of the Code which may be regarded as merely procedural in nature and those which should be regarded as enacting a rule of substantive law. Sitaram v. Baburao, AIR 1953 Nag. 153 is a case in which it was held that rule 8 of order 9 of the Code of Civil Procedure enacted a rule of substantive law, and should not therefore be applied to proceedings under section 144 of the said Code by virtue of section 141 thereof. In Prasanna Ghose v. Satish Chandra : AIR1943Cal152 , Rule 9 of Order 9 was held to be inapplicable to an application or a miscellaneous proceeding under Section 36(6)(a) of the Bengal Money Lenders Act, principally on the ground that the said provision of the Code applies in term to a suit only and not an application.

(13) We do not think that the proposition sought to be made on the basis of these decisions can rightly be applied to proceedings under the Hindu Marriage Act. In the first place the proposition that either Rule 8 or Rule 9 of O. 9 or both of them together must be taken to enact a rule of substantive law may stand further consideration and scrutiny. In one sense the Code of Civil Procedure can hardly be taken to enact any rule of substantive law, if we understand the expression 'substantive law' to mean law which creates or confers on individuals a certain legal right or imposes a certain legal liability or obligation. The Code of Civil Procedure is a law which relates to procedure of courts to investigate into and adjudicate upon disputes in regard to substantive rights claimed by one party and denied by another. If this view of the matter is borne in mind, it may not be quite accurate to say that any provision of the Code of Civil Procedure enacts any rule of substantive law. In regard to such provisions as S. 11 or R. 9 of O. 9 or sub-rule (3)of Rule 1 of Order 23 of the Code of Civil Procedure, the better view to take, in our opinion, would be not to regard them as enacting any rule of substantive law but as provisions which lay down the consequences which the failure to observe certain of the provisions regulating procedure has on the substantive rights which are the subject of adjudication by civil court. Indeed we might point out that the very title given to Order 9 of the Code of Civil Procedure is 'Appearance of parties and Consequences of Non-appearance'. In Venkatamma v. Seethaiah, 1960-1 Andh WR 1 a Bench of the High Court of Andhra Pradesh dealing with Section 5(4) of the Hindu (Bigamy Prevention and Divorce) Act which states that procedure provided in the Code of Civil Procedure in regard to suits shall be followed as far as it can be made applicable in all proceedings in any petition presented under sub-section (1) or (2) thereof, applied Rule 13 of Order 9, pointing out that Order 9 which deals with appearance of parties and consequence of the non-appearance is part of the procedure applicable to trial of suits and should therefore be applied to proceedings under the said Act.

(14) It is nevertheless argued that proceedings under the Hindu Marriage Act could be regulated by the Code of Civil Procedure only subject to the other provisions of the Act and that a dismissal for default under Rule 8 of Order 9 of the Code of Civil Procedure would be violative of some of the provisions of the Hindu Marriage Act. Special mention in that connection was made of the express provisions of S. 23 of the Act which places a certain duty on the Court to examine certain circumstances before granting relief, whether or not the proceeding in question is defended. Sub-section (2) of the same section, it was pointed out, distinctly requires the Court to make every endeavour to bring about a reconciliation between the parties before proceeding to grant any relief under the Act. The argument is that there are certain special features peculiar to matrimonial proceedings which make the appearance or non-appearance of parties either immaterial to the discharge of Court's duty in regard to adjudication irrespective of the presence or absence of parties. Reference is made to the following passage in paragraph 576 at page 292 of Volume 12 of Halsbury's Laws of England (Third Edition):

'A decree must be refused, even if the suit is not defended, where there is no jurisdiction to make it, or where the allegations put forward are not proved; for judgment by default, or by consent, or by admission, is unknown in matrimonial causes.'

It must be pointed out that what S. 23 of the Act purports to do is to impose certain condition in the interest of the society at large which is interested in maintaining continuance of matrimonial relations and preventing as far as possible the disruption thereof even at the instance of the parties to the marriage themselves. That is why it provides against collusion between the parties with a view to obtain a decree and also disables a party from taking advantage of his or her own wrong or disability for the purpose of obtaining relief. The Court is asked to proceed to examine the circumstances in the light of section 23 even if the defendant may be due to collusion or may assist the petitioner in taking advantage of his or her own wrong or disability. All these considerations arise before any relief under the Act such as restitution of conjugal rights, judicial separation, divorce or declaration of nullity of marriage is granted to the petitioner.

(15) The question is whether same or simultaneous considerations necessarily arise when the petitioner himself is in default as in the present case before us.

(16) Whatever nay be the type of relief which a petitioner may seek under the Act, the Court may or may not grant that relief. But before any relief could be granted, the court must be satisfied that any of the grounds for granting that relief exists and there do not exist any of the disabling circumstances set out in S. 23. A Court may refuse to grant relief either because the petitioner is disabled from seeking such relief or because he has failed to make out any such ground. Now the failure to make out any such ground may occur either because the petitioner has taken no steps whatever to adduce evidence and make out the existence of any ground for relief. A default in appearance certainly come within the scope of this second alternative.

(17) When a petitioner does not appear and the petition is dismissed for his default, there is no grant of any relief under the Act. Hence no occasion arises for the Court to act under or in the light of section 23 of the Act. It is also not possible to postulate any collusion between the spouses. Collusion, it should be remembered, mean agreement or understanding between the parties to make the Court believe in the existence or truth of the circumstances, which the parties know to be non-existent or false, and the existence or truth of the circumstances which is necessary for the grant of the relief claimed in the petition. When the absence of the petitioner which has the consequence of his petition getting dismissed does not result in the grant of any relief to him, there is no question of any alleged collusion being relevant to the disposal of the petition. There is also no question of the petitioner trying to take advantage of his or her own, wrong or disability for the purpose of obtaining any relief.

(18) It should follow, therefore, that a dismissal of the petition for default of the petitioner's appearance pursuant to Rule 8 of Order 9 of the Code of Criminal Procedure cannot to any extent conflict with or be repugnant to any of the provisions of the Hindu Marriage Act or the general policy underlying the same.

(19) We might also point out that the proposition generally made by English lawyers that there is no such things as a judgment by default in matrimonial causes does not seem to indicate that there is nothing in the practice of English matrimonial Courts corresponding to dismissal for default of petitioner's appearance under our Code of Civil Procedure. The practice of the English Courts in such circumstances is summarised in Halsbury's Laws of England in paragraphs 846 and 847 at page 385 of Volume 12(Third Edition) as follows:

846. 'No appearance on either side. If no one appears on either side to support of oppose a petition when it is called on, it is struck out of the list and, if there is a jury, the judge will discharge the jurors.'

847. 'Reinstatement. Striking out of the list when there is no appearance, however, is only equivalent to adjourning it sine die, and the cause may be reinstated on personal explanation by counsel or by affidavit. It is occasionally reinstated only on condition that the solicitor or the party in fault pays the costs thrown away, or the cause may be set down again on payment of the requisite fee'.

(20) It will be noticed that the position is more or less similar to the position under Rules 8 and 9 of Order of the Code of Civil Procedure. The specific provisions of these rules being quite in accord with the general principles followed for generation by Courts exercising civil jurisdiction in this country and there being nothing in them which is to any extent repugnant to any of the provisions or the policy of the Hindu Marriage Act they should be applied by virtue of section 21 thereof. Indeed the provisions appear to us to be quite just and proper from the point of view of the parties and quite essential from the point of view of due despatch of work of civil Courts.

(21) The decision of this Court in Abdul Subban Saheb and Sons v. Mysore Sales Tax Appellate Tribunal.1964-2 Mys LJ 274 does not contain any statement of principle relevant to our present discussion. In holding that the Mysore Sales Tax Appellate Tribunal does not have the power to dismiss an appellate for default of appellant's appearance, their Lordships proceeded on the basis of two considerations, viz., that the Tribunal is a Court of limited jurisdiction and the proceedings before it was an appellate in which the material necessary to come to a conclusion would already have been placed on record by the parties. In the case now before us, however, we are dealing with a civil Court which is in the nature of an original proceeding.

(22) We hold, therefore that the provision of Rules 8 and 9 of Order 9 of the Code of the Civil Procedure are applicable to original proceeding under the Hindu Marriage Act.

(23) The Order of the civil Judge appealed from in this case must be read as an Order made under Rule 8 of Order 9 of the Code of Civil Procedure although the learned Judge has not cited the said provision. Consequently the appellant has the remedy provided for him under Rule 9 of O. 9 of the Code of Civil Procedure. He having chosen to avail himself of that remedy and actually made application for that purpose to the trial Court, he cannot be permitted to pursue simultaneously the alternative remedy by way of appeal to this Court.

(24) In the result, we dismiss this appellate without prejudice to the appellate pursuing his application to the trial Court under Rule 9 of Order 9 of the Code of Civil Procedure.

(25) In the circumstances, the parties will bear their own costs in this appeal.

(26) Appeal dismissed.


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