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Mahadev Jyoti Umrani Vs. Smt. Sumitra - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberMiscellaneous First Appeal No. 1093 of 2001
Judge
Reported inI(2004)DMC398; ILR2004KAR512; 2003(6)KarLJ323
ActsHindu Marriage Act, 1955 - Sections 3, 9 to 13, 13(1), 19 and 28; Karnataka Civil Courts Act, 1964 - Sections 19 and 19(2)
AppellantMahadev Jyoti Umrani
RespondentSmt. Sumitra
Advocates:R.D. Gokakar, Adv.
DispositionAppeal dismissed
Excerpt:
.....enforced in like manner as the decreesand orders of the court made in the exercise of its original civiljurisdiction are enforceable all decrees and orders made by the court inany proceeding under this act shall be enforced in the like manner as thedecrees and orders of the court made in the exercise of its original civiljurisdiction for the time being are enforced second part of section 28: section 28: all decrees and orders made by the court inany proceedings under this act may be appealed from under any law for thetime being in force (1) all decrees made by the court in anyproceeding under this act shall, subject to the provisions of sub-section (3),be appealable as decrees of the court made in the exercise of its originalcivil jurisdiction, and every such appeal shall lie to the..........enforced in like manner as the decreesand orders of the court made in the exercise of its original civiljurisdiction are enforceableall decrees and orders made by the court inany proceeding under this act shall be enforced in the like manner as thedecrees and orders of the court made in the exercise of its original civiljurisdiction for the time being are enforcedsecond part of section 28:section 28:all decrees and orders made by the court inany proceedings under this act may be appealed from under any law for thetime being in force(1) all decrees made by the court in anyproceeding under this act shall, subject to the provisions of sub-section (3),be appealable as decrees of the court made in the exercise of its originalcivil jurisdiction, and every such appeal shall lie to the court to.....
Judgment:

R.V. Raveendran, J.

1. The appellant (husband) and respondent (wife) were respectively the petitioner and respondent in M.C. No. 61 of 1983 on the file of the Principal Civil Judge (Senior Division), Chikkodi, filed under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act of 1955 seeking a decree for divorce. The relevant portion of the petition relating to Court fee and valuation is extracted below:

'Fixed Court fee of Rs. 100/- is paid for this petition as per the Schedule II, Article I of the Karnataka Court Fees and Suits Valuation Act, 1958, as amended upto date'.

2. After contest, the said petition was dismissed. Feeling aggrieved, the appellant filed an miscellaneous appeal on 9-10-2000 in the Court of the Principal District Judge, Belgaum. As the office raised an objection in regard to maintainability, the appeal was not numbered. The objection was that having regard to the decision of the Division Bench of this Court in Parashuram Rao Anantha Rao Pise v. Smt. Pratibha Parashuram Rao Pise, 1974(1) Kar. L.J. 265 (DB), the appeal ought to have been filed in the High Court. After hearing, the learned Principal District Judge, Belgaum, by an order dated 11-1-2001 held that the appeal was not maintainable before the District Court and directed the return of the appeal papers to the appellant for presentation before the High Court, relying on Section 19 of the Civil Courts Act, 1964. Instead of take return and representing the appeal, the appellant has filed this appeal against the order of the District Judge, under Order 43, Rule 1(a) of the Code of Civil Procedure. The appellant contends that having regard to the decision of the Division Bench of this Court in Mallappa v. Mallava, AIR 1960 Mys. 292 (DB), and Section 19 of the Civil Courts Act, an appeal against the order of the Civil Judge (Senior Division), passed under the Hindu Marriage Act, 1955 would lie to the District Court and not to the High Court and the District Court committed an error in ordering return of the appeal. The appellant has also contended that the decision in PISE is no longer good law in view of amendment to Section 28 of the Hindu Marriage Act, 1955 by Act 60 of 1968.

3. The learned Single Judge before whom the appeal came up for hearing, was of the view that Mallappa's case, laid down the correct law. However, as the subsequent decision of Parashuram Rao Anantha Rao Pise took a contrary view, the learned Single Judge, by order dated 8-1-2003, referred the matter to the Division Bench to resolve the conflict between Mallappa's case and Parashuram Rao Anantha Rao Pise's case. The question that therefore arises for consideration is whether an appeal from an order/decree of the Civil Judge, Senior Division, in a proceedings under Sections 9, 10, 11, 12 and 13 of the Hindu Marriage Act, 1955, lies to the High Court or the District Court.

4. To decide the said question, a brief reference to the relevant provision of law is necessary.

4.1 Section 19 of Hindu Marriage Act ('HM Act', for short), requires every petition under the Act to be presented to the District Court. The term 'District Court' is defined in Section 3(b) of the said Act, as follows.--

' 'District Court' means, in any area for which there is a City Civil Court, that Court, and in any other area the Principal Civil Court of original jurisdiction, and includes any other Civil Court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act'.

4.2 Section 14 of the Karnataka Civil Courts Act, 1964 ('Civil Courts Act', for short), provides that the District Court shall be deemed to be the Principal Civil Court of original jurisdiction within the local limits of its jurisdiction. Section 16 provides that the jurisdiction of the Court of Civil Judge (Senior Division), shall extend to all original suits and proceedings of a civil nature.

4.3 The State Government, by Notification in LAW 36 LCL 71, dated 2-11-1971 issued in exercise of powers conferred under Section 3(b) of the Hindu Marriage Act, specified all Courts of the Civil Judges (now Courts of Civil Judges (Senior Division)) as having jurisdiction in respect of matters under the Hindu Marriage Act. In view of it, except where Family Courts are established under the Family Courts Act, all matrimonial cases under the Hindu Marriage Act are filed in the Court of the Civil Judge (Senior Division) and not the District Court.

4.4 Section 28 of the Hindu Marriage Act deals with appeals. It provides that all decrees made by the Court in any proceedings under the said Act shall be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.

4.5 This takes us to Section 19 of the Civil Courts Act, which deals with appeals from the decrees and orders passed by a Civil Judge (Senior Division), in original suits and proceedings of a civil nature. It provides that where such appeals are allowed by law, the appeal shall lie:

(a) to the District Court, when the amount or the value of the subject-matter of the original suit or proceedings is less than Rupees One lakh; and

(b) to the High Court in other cases.

4.6 Section 20 of the Kamataka Court Fees and Suits Valuation Act, 1959 ('Court Fees Act', for short), provides that Court fee payable under the said Act shall be determined or computed in accordance with the provisions of Chapters IV, VI, VIII and Schedules I and II. Section 50 provides that in a suit as to whose value for the purpose of determining the jurisdiction of Courts, a specific provision is not otherwise made in that Act or in any other law, value for that purpose and value for the purposes of computing the fee payable under the Court Fees Act shall be the same, Sub-section (2) of Section 50 of the Court Fees Act provides that in a suit where Court fee is payable under that Act at a fixed rate, the value for the purpose of determining the jurisdiction of Courts shall be the market value or where it is not possible to estimate it at money value, such amount the plaintiff shall state in the plaint.

4.7 Article 1 of Schedule II to Court Fees Act provides that in a petition under Sections 9 to 13 of the Hindu Marriage Act, 1955, and Memorandum of Appeal under Section 28 of that Act, the Court fee payable will be Rs. 100/-.

5. The reliefs claimed in a proceeding under Sections 9 to 13 of the Hindu Marriage Act, are not capable of pecuniary valuation, as they relate to restitution of conjugal rights, judicial separation, declaration of nullity of marriage, annulment of marriage, and divorce. In regard to such a proceeding, jurisdiction is fixed statutorily under Section 19 of the HM Act read with Section 3(b) of HM Act and Notification dated 2-11-1971. The jurisdiction is not determined with reference to any pecuniary value mentioned by the person who approaches the Court in his plaint/petition. Therefore, there is no need for a petitioner in a proceeding under Sections 9 to 13 of HM Act, to state tide value of the subject-matter of the relief claimed, for determining the jurisdiction of the Court. In other words, Section 50(2) of Court Fees Act is inapplicable in regard to a proceeding under Sections 9 to 13 of HM Act, even though the Court fee thereon is payable only at a fixed rate.

6. Suits/proceedings which are not capable of pecuniary valuation, are of two types:

(a) Those where there is no requirement in law to value the relief for purposes of determining the jurisdiction. (Petitions under Sections 9 to 13 of Hindu Marriage Act fall under this category.)

(b) Those where there is a statutory requirement to specify a pecuniary value, even where the relief is not capable of pecuniary valuation, so as to determine the Court fee payable and/or to determine the jurisdiction of the Court which can deal with the matter. (A suit for a bare injunction not involving question of title, suit for easements, suits for declaration (not involving claim for possession or injunction) fall under this category).

In cases falling under first category, neither Court fee nor jurisdiction of Court depends upon any valuation by the plaintiff/petitioner; and there is no need to value the reliefs sought. Even if any pecuniary value is mentioned, it is irrelevant and can be ignored. When a relief is incapable of being valued and when there is no legal obligation on the part of the plaintiff/petitioner to value the relief sought, the question of 'value of subject-matter of the proceedings' being less than or more than Rupees One Lakh does not arise. Therefore, the effect of Section 19(2) of the Civil Courts Act, in regard to decrees and orders passed by a Civil Judge (Senior Division) in suits and proceedings of a civil nature are as follows.--

(i) Where the subject-matter of a suit/proceeding is capable of valuation, or where there is a requirement in law to specify a valuation (even where the relief is not capable of valuation) and the amount or value of the subject-matter is less than Rupees One Lakh, the appeal will lie to the District Court.

(ii) In all other cases (including cases where the amount or value of the subject-matter is Rupees One lakh or more, or where the subject-matter is incapable of pecuniary valuation), the appeal will lie to the High Court.

Therefore, in regard to decrees/orders passed by the Civil Judge (Senior Division), in proceedings under Sections 9 to 13 of the HM Act, the appeals will lie only to the High Court, as such cases will fall under 'other cases' covered by Section 19(2) of the Civil Courts Act.

7. Our view finds support from two decisions of this Court in Sannakariyappa v. Lakskmakka, 1967(2) Mys. L.J. 629, Neelawwa v. Gavisiddappa Rachappa Kalagi, 1971(1) Mys. L.J. Sh. N. 135 (sic) and the Full Bench decision of the Allahabad High Court in Paras Ram v. Janki Bai : AIR1961All395 .

7.1 Dealing with a case under Section 9 of the HM Act, in Sannakari-yappa's case, a learned Single Judge of this Court, referred to Section 19 of the Civil Courts Act and held:

'The value of the proceedings for relief of restitution of conjugal rights under Section 9 of the Act cannot be valued and the test prescribed under Section 19(1) of the Mysore Civil Courts Act cannot be applied to this case, and therefore, the appeals would lie to the High Court in the case of a decree passed in a proceeding under Section 9 of the HM Act'.

7.2 In Neelawwa's case, another learned Single Judge of this Court held thus in regard to a case arising under Section 10 of the HM Act:

'The proceedings out of which this appeal arises is of the civil nature. Under Section 28 of the Hindu Marriage Act, an appeal lies from the order made by the Civil Judge. The question is whether the appeal against the order of the Civil Judge lies to the District Judge or to the High Court. The decision in Sannakariyappa's case relates to proceedings for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. The principle laid down in the decision applies to the facts of this case also, though the proceedings in this case were under Section 10 of the Hindu Marriage Act. The proceedings under Section 10 of the Act, cannot be valued. What applies to proceedings under Section 9, shall also apply to proceedings under Section 10 of the Act. Therefore, the proceedings cannot be valued. From this point of view, it appears that the appeal against the order of the Civil Judge can lie only to the High Court.... '.

7.3 In Paras Ram's case, a Full Bench of the Allahabad High Court dealing with a petition under Section 10 of the HM Act, held thus by interpreting Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 (in pari materia with Section 19 of the Karnataka Civil Courts Act, 1964):

'A proceeding under Section 10 of the Hindu Marriage Act is to be treated as an original suit. Consequently an appeal from an order of a Civil Judge passed in such a proceeding lies to the District Judge if a certain condition is fulfilled and to the High Court if it is not. The residuary power is thus vested in the High Court and an appeal lies to the District Judge only if the condition is fulfilled. The value placed on the memorandum of appeal is of no consequence...... Consequently there is no law directing how the value of the subject-matter of a petition under Section 10 for the purpose of jurisdiction is to be fixed. ....

When no value was fixed on the petition and when there was no law also under which a certain value or a value not below or not exceeding a certain sum ought to have been fixed, it cannot be said that the value of the petition did not exceed Rs. 10,000/-. The subject-matter of the petition was not capable of pecuniary valuation and it could not be said that it exceeded any sum of money. Consequently, the appeal from an order passed in a proceeding started on the petition lay to this Court.

It would lie to the Court of the District Judge only if it could be predicated that the valuation of the petition did not exceed Rs. 10,000/-. In the case of a subject-matter not capable of pecuniary valuation it could not be said that it does not exceed any sum of money. The residuary power to entertain an appeal vests in the High Court not only when the value of the suit exceeds Rs. 10,000/- but also when the subject-matter of the suit is incapable of pecuniary valuation.........The principle applied in both the decisions was the same, -- it being an appeal will not lie to the Court the jurisdiction of which to entertain it depends upon a certain value of the subject-matter in controversy. In the case before us, as also in the Punjab case, the jurisdiction of the District Judge to entertain an appeal depends upon the value of the subject-matter in appeal not exceeding a certain sum. According to the principle applied in all the cases discussed above, when the subject-matter in appeal is not capable of pecuniary valuation, the appeal will not lie to the District Judge'.

8. A contrary view has been expressed by a learned Single Judge of the Gujarat High Court in Ramjibhai Lalbhai Patel v. Smt. Shantaben : AIR1984Guj167 . The learned Judge while considering Section 16 of the Bombay Civil Courts Act, 1869 with reference to a decree for divorce granted under the Hindu Marriage Act, held that where the subject-matter is incapable of monetary evaluation, it cannot be said to exceed any specified sum and therefore the appeal will not lie to High Court. The learned Judge felt bound to follow the decision in Chhagan Karsan v. Bhagwanji Punjab : AIR1973Guj165 , which did not deal with filing of an appeal against an order under Hindu Marriage Act, but the jurisdiction of Civil Judge (Junior Division) to entertain suits incapable of monetary valuation having regard to Section 24 (paras 2 and 3) of the Bombay Civil Courts Act, 1869. The wording of Section 24 of the Bombay Civil Courts Act being different from Section 16 of the Bombay Civil Courts Act, 1869, it is doubtful whether the decision in Chhagan Karsan's case, supra, could have been of any assistance. Be that as it may. We respectfully disagree with the decision in Ramjibhai's case.

9. The learned Single Judge has made a reference to the valuation of Rs. 100/- made by the appellant in the appeal filed before the District Court for the purpose of Court fees and jurisdiction. The learned Single Judge was of the view that if the said valuation is taken into account, the appeal may have to be presented to the District Court, Firstly, as stated above, the petitions under Sections 9 to 13 of Hindu Marriage Act do not admit the pecuniary valuation and the law does not require any valuation. Therefore, the valuation mentioned is redundant and will not be relevant. Secondly, what is relevant is the valuation in the Trial Court and not the Appellate Court. The records of the Trial Court clearly show that no pecuniary valuation was shown in the petition, but merely stated that fixed Court fee of Rs. 100/- was paid under Article 1 of Schedule II. Section 49 and Article 1 of Schedule II make it clear that the value for the purpose of appeal is not different from the value of the suit. If no pecuniary valuation is shown in regard to suit, obviously the petitioner could not show any value in regard to the appeal. Therefore, even if the appellant had wrongly stated that the value of the appeal was Rs. 100A, that will have to be ignored as what is relevant is the valuation of the original proceedings and not the appeal.

10. We will now consider the effect of the two decisions of this Court in Mallappa and Parashuram Rao Anantha Rao Pise's cases, which have taken inconsistent views.

11. In Mallappa's case, the Division Bench held that when a notification is issued under Section 3(b) of the HM Act specifying the Court of the Civil Judge, Senior Division, to have jurisdiction in respect of matters dealt with in that Act, then the term 'District Court' used anywhere in HM Act will also refer to the Court of Civil Judge (Senior Division), for the purpose of that provision of HM Act, but will not convert the Court of the Civil Judge (Senior Division) into a 'District Court' as defined in the Civil Courts Act. The two members of the Division Bench gave separate concurring judgments. Mir Iqbal Hussain, J., observed thus:

'The definition (in Section 3(b) of Hindu Marriage Act) applicable is 'in any other area, the principal Civil Court of original jurisdiction'. Then follows the inclusion clause which determines the other Civil Courts as having jurisdiction. The Court of the Civil Judge (Senior Division), conies within the purview of the latter clause. A cursory reading of this definition may give an impression that any other Civil Court so specified is also a District Court. But a careful scrutiny will reveal that such a construction is erroneous.

The Civil Court that may be specified cannot be equated to the principal Civil Court of original jurisdiction. The latter is a category by itself. It is the principal Court as distinguished from a subordinate Court. Just because the State Government specifies that certain subordinate Civil Courts may also exercise jurisdiction in respect of the matters arising under the Hindu Marriage Act by no stretch of imagination could we designate them as principal Civil Courts of original jurisdiction'.

In his concurring judgment, Sadasivayya, J., observed thus:

'It is no doubt true that under Section 3(b) of the Act the expression 'District Court' means also a 'Civil Court' which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in the Act. But, such a notification cannot have effect of converting that Court into a District Court within the meaning of Section 7 of the Bombay Civil Courts Act, 1869. The fact that a Civil Court has been so notified under Section 3(b) of the Act can be of no relevance for the purposes of Section 28 when there is no mention of 'District Court' in that section.

The forum for appeal from any decree or order made by any Court in any proceedings under the Act has to be determined with reference to the provisions of the Bombay Civil Courts Act, 1869; if such a decree or order has been made by a Court which is subordinate to the District Court, then under Section 8 of the Bombay Civil Courts Act, 1869, an appeal lies to the District Court. The decision sought to be appealed from in this case is one given by the Court of a Civil Judge (Senior Division), which is a Court subordinate to the District Court under the Bombay Civil Courts Act, 1869; therefore, the forum of appeal is only the District Court'.

We are in respectful agreement with the said reasoning. But, the ultimate decision in Mallappa's case, that the appeal will lie only to the District Court was with reference to the wording of Section 8 of the Bombay Civil Courts Act, 1869 (which applied to Bombay-Karnataka Area till 30-6-1964). Section 8 of the Bombay Civil Courts Act provided that the District Court shall be the Court of appeal for all decrees and orders passed by the subordinate Courts from which an appeal lies under any law for the time being in force. But, we are concerned with the provisions of the Karnataka Civil Courts Act, 1964, which is applicable to entire Karnataka with effect from 1-7-1964. What governs the matter is Section 19 of the Karnataka Civil Courts Act, 1964, the wording of which is completely different from the wording of Section 8 of the Bombay Civil Courts Act, 1869. Hence, the final decision in Mallappa's case, to the extent it holds that an appeal would lie to the District Court against the order of the Civil Judge (Senior Division) passed under Hindu Marriage Act is not applicable after the Karnataka Civil Courts Act came into force.

12. In Parashuram Rao Anantha Rao Pise's case, supra, another Division Bench held that if any Court other than a District Court, is conferred with jurisdiction under the HM Act, then it must be construed as exercising the powers of District Court and therefore an appeal would lie from an order of such Civil Court to the High Court. The Division Bench observed:

'There is no provision in the Act (Hindu Marriage Act) which indicates the forum of appeal. On a fair construction of the above Section (Section 28), we are of opinion that Section 28 expressly confers a right of appeal on a litigant from every order or a decree passed under the Act. The words 'may be appealed from' confer the right of appeal and the words 'under any law for the time being in force' refer to the forum before which an appeal could be filed against such decree or order and the procedure to be followed in filing such appeal. Such forum in the instant case is determined by the provisions of the Mysore Civil Courts Act. Under Section 19 of the Act, the Court which decides cases in the first instance under the Act is the District Court as defined under Section 3(b) of the Act and an appeal from a decree or order of the District Court would He to the High Court under the Mysore Civil Courts Act. Even when any other Civil Court is conferred the jurisdiction of deciding cases under the Act under a notification issued by the State Government for purposes of the Act it must be construed as exercising the powers of a District Court. Hence, an appeal would lie from an order of the Civil Judge exercising jurisdiction under the Act, to the High Court....'.

The earlier decision in Mallappa's case was not brought to the notice of the Division Bench which decided Parashuram Rao Anantha Rao Pise's case. The observation that any Civil Court conferred with the power to decide the matters under HM Act should be construed as exercising the power of a District Court and therefore an appeal from an order of such Court will lie to the High Court, is wholly inconsistent with the view expressed in Mallappa's case. In fact when a notification is issued under Section 3(b) of the HM Act, the State Government does not confer the powers of a 'District Court', on the Court of Civil Judge. On the other hand, Section 3(b) of the HM Act merely enables the State Government to specify a Civil Court by issue of a notification as having jurisdiction in respect of matters dealt with in the HM Act. Therefore, obviously the Court of a Civil Judge does not become a 'District Court'. To that extent, with due deference to the Judges who decided Parashuram Rao Anantha Rao Pise's case we feel that Parashuram Rao Anantha Rao Pise's case was wrongly decided. Therefore, it would have been necessary to refer the matter to a Full Bench but for a subsequent event.

13. Section 28 of the HM Act which was considered and interpreted in Parashuram Rao Anantha Rao Pise's case was subsequently substituted by Sections 28 and 28-A by the Marriage Laws (Amendment) Act (Act 68 of 1976) in view of conflict in views of different High Courts about forum of appeal. The position relating to appeals before and after amendment is as follows.--

Section 28 before amendment

After amendment (w.e.f. 27-5-1976)

First Part:

Section 28-A:

All decrees and orders made by the Court inany proceeding under this Act shall be enforced in like manner as the decreesand orders of the Court made in the exercise of its original civiljurisdiction are enforceable

All decrees and orders made by the Court inany proceeding under this Act shall be enforced in the like manner as thedecrees and orders of the Court made in the exercise of its original civiljurisdiction for the time being are enforced

Second part of Section 28:

Section 28:

All decrees and orders made by the Court inany proceedings under this Act may be appealed from under any law for thetime being in force

(1) All decrees made by the Court in anyproceeding under this Act shall, subject to the provisions of sub-section (3),be appealable as decrees of the Court made in the exercise of its originalcivil jurisdiction, and every such appeal shall lie to the Court to whichappeals ordinarily lie from the decisions of the Court given in the exerciseof its original civil jurisdiction

(2) Orders made by the Court in anyproceeding under this Act under Section 25 or 26, shall, subject to theprovisions of subsection (3), be appealable if they are not interim orders,and every such appeal shall lie to the Court to which appeals ordinarily liefrom the decisions of the Court given in exercise of its original civiljurisdiction

The decision in Parashuram Rao Anantha Rao Pise's case interpreted the unamended Section 28 (second part). It is no longer of any assistance in interpreting Section 28(1) and (2) substituted with effect from 25-7-1976. In view of it, the decision in Parashuram Rao Anantha Rao Pise's case, is not applicable to decide the question as to the forum for filing the appeal. As neither Mallappa's case nor Parashuram Rao Anantha Rao Pise's case is applicable in view of the subsequent amendments to the relevant enactments, the conflict between them is of no relevance to decide the matter with reference to Section 28 read with Section 3(b) of Hindu Marriage Act, 1955 and Section 19 of the Karnataka Civil Courts Act, 1964. Hence, we find no need to refer any point of law to a Full Bench.

14. We, therefore, dismiss this appeal filed under Order 43, Rule 1(a) of the Code of Civil Procedure. We affirm the decision of learned District Judge directing that the appeal against the order of the Civil Judge (Senior Division), should be filed before this Court under Section 28 of Hindu Marriage Act read with Section 19(2) of the Karnataka Civil Courts Act, 1964.


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