1. Ram Kumari (appellant) is the married wife of Menaketan Meher (respondent). She filed O. S. No. 58 of 1970 in the Court of the Subordinate Judge, Aska, for a decree of divorce under Section 13 or the Hindu Marriage Act, 1955 (hereinafter to be referred to as the Act). The suit having been dismissed she has filed the appeal. On the memorandum of appeal Court-tee of Rs. 6/- has been affixed, The Stamp Reporter is of the opinion that Court-fee of Rs. 22/8/- is payable. He relied on an unreported decision of G. C. Das J., the then Taxing Judge, in First Appeal No. 43 of 1963, decided on 14-12-1961 (Orissa) (Sripada Samba Siva Rao v. Sripada Subhalaxmi). He referred the matter to the Taxing officer (Registrar). The Taxing officer noticed apparent conflict in the aforesaid decision and another decision of Barman J. in 33 Cut LT 13 = (AIR 1967 Orissa 41) (Mst. Puinbasi Majhiani v. Shiba Bhue). He referred the Matter to the Taxing Judge for an authoritative pronouncement. The Taxing Judge S. K. Ray J. has referred the matter to the Division Bench. This is how the case has come before us.
2. Mr. S. C. Mohapatra for the appellant contends that Article 11 of Schedule II of the Court-fees Act, 1870, as amended in Orissa, applies to this case while Mr. R. K. Mohapatra, the learned Government Advocate, contends that Article 17A applies. To appreciate the rival contentions Articles 11 and 17A, so far as relevant, may be extracted:
Number Proper Fee
11.Memorandum of appeal when the appeal is from an order inclusiveof an order determining any question under Sec- 47 or Section 144 of the Codeof Civil Pro- -cedure, V of 1908 and is presented.
(a)xx xx (b)to a High CourtFour rupees xx xx
By Orissa amendment fee has been enhanced to 1 1/2times. So it would be six rupees. Thus if Article 11 applies, six rupees court-feeaffixed to the memorandum of appeal is correct.
Number Proper Fee
17A.Plaint or memorandum of appeal in every suit where it is not possible to estimate at a money-value the subject-matter in dispute and which is not other-wise provided for by this Act.
When the plaint is presented to, or the memorandum of appeal is against the decree of -
(a)xx xx (b)any other Revenue Court, or any Court of a District Judge, Subordinate Judge, or Munsif.
Fifteen rupees if the value for purposes of jurisdiction does not exceed four thousand rupees, one hundred rupees if such value exceeds Four thousand rupees
By Orissa amendment the fee has been enhanced to 11/2 times. The valuation in this case is less than four thousand rupees. If this Article applies then the Court-fee payable on the memorandum of appeal would be Rs. 22/8/-.
3. The only question, for consideration is as to which, of these Articles would apply to this case. Article 17A is a residuary Article and can be invoked only if Article 11 is not applicable. We would accordingly proceed to analyse if Article 11 applies.
4. Article 11 on its clear language would apply to appeals from order only and not to appeals from decrees. By an inclusive definition orders passed under Section 47 and Section 144 C. P. C. have been included in this Article though such orders constitute decrees.
5. Section 21 of the Act lays down that 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 Civil P. C. 1908. Neither this Act nor the Hindu Marriage and Divorce Rules, 1956 prescribed under the Act by the High Court define decrees. In construing what is a decree, reference must be made to its definition in Section 2(2), of the Civil P. C. 'Decree' under Section 2(2), so far as relevant, means the formal expression of an adjudication Which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144. Thus, though orders under Section 47 and Section 144 C, P. C. are not decrees, by the inclusive definition in Section 2(2) C. P. C. such orders are decrees.
If orders under Section 47 or Section 144 C P. C. would not have been included in Article 11, then court-fee would have been payable on such orders as is payable in a memorandum of appeal against decrees.
6. The next question for consideration is whether the impugned judgment of the Subordinate Judge dismissing the suit for divorce constitutes an order or a decree, Sections 9 to 13 of the Act dealing with restitution, of conjugal rights, judicial separation, void marriages, voidable marriages and divorce show that orders passed by the Court under those sections constitute decrees. So far as relevant, those sections may be extracted :
'9. Restitution of conjugal rights-- (1) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
XX XX XX XX 10. Judicial separation.-- (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation,
x x x x x x x (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
11. Void marriages-- Any marriage solemnized after the commencement of this Act shall be mill and void and may, on a petition presented by either party thereto, be so declared by a decree of nullty if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.
12. Voidable marriages-- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable, and may be annulled by a decree of nullity on any of the following grounds, namely-
xx xx ax x 13. Divorce-- (1) Any marriage solemnized, whether before or after the common cement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
XX XX XX XX ' The underlined word in these section shows that the statute prescribes for the passing of a decree for reliefs claimed under those sections.
7. Section 23 enacts that the Court shall decree relief in every proceeding under the Act subject to the conditions prescribed therein being fulfilled. Section 23 is as follows:
'23. Decree in proceeding.-- (1) In any proceeding under this Act, whether defend-ed or not, if the court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in Clause (f) of Sub-section (1) of Section 10, or in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
(c) the petition is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and.
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly,
(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties,'
Thus passing of a decree is mandatory and clearly provided in Section 23.
8. Section 28 of the Act makes provision, for enforcement of the decrees and orders and appeals therefrom. It says that all decrees and orders made by the court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its original Civil jurisdiction are enforced, and may be appealed from under any law for the time being in force: provided that there shall be no appeal on the subject of costs only.
Thus a distinction is maintained between decrees and orders under the Act.
9. Section 2(14) C. P. C. definesan order. 'Order' means the formal expression of any decision of a Civil Court which is not a decree.
10. It is not as if passing of orders is not contemplated under the Act. Reference may be made to Sections 24, 25 and 26 which are extracted hereunder:
'24. Maintenance pendente lite and expenses of proceedings.-- Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary exprenses of the proceedings, it may, on the application of the wife, or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable.
25. Permanent alimony and maintenance.-- (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any lime subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If that court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just;
(3) If the court is satisfied, that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it shall rescind, the order.
28. Custody of children -- In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such, decree or interim orders in case the proceedings for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.'
11. Thus there is provision for passing of orders under the Act which are not decrees. Orders of the Court granting pendente lite maintenance and expenses of proceedings under Section 24, granting of permanent alimony and maintenance subsequent to the decree under Section 25 and giving direction of interim custody of children under Section 26 are orders and not decrees. If orders are passed under Sections 25 and 26 relating to permanent alimony and maintenance or custody of children in the decree itself, then such orders constitute component part of the decree and are assailable in the appeal against the decree itself.
12. It is contended that Section 28 does not prescribe filing of appeals independent of C. P. C. It says that decrees and orders of the Court may be appealed from under any law for the time being in force. The argument is continued by saying that appeals against decrees are prescribed in Sections 99 and 100 C. P. C. and appeals against orders are provided for under Sections 104, 109 and Order 43 C. P. C. There is no provision in Order 43 for filing an appeal against an order passed under Section 24 or interim orders passed under Sections 25 and 26, The contention is not sound. In AIR 1964 Orissa 122 (Smt. Snehalata Dansena v. Jagadish Dauscna) such a contention was negatived. Reliance was placed on AIR 1959 Cal 455 (Smt. Sobhana Sen v. Amar Kanta Sen) and AIR 1961 Guj 202 (Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas). The intention of the Legislature is that all decrees and orders made by the Court in a proceeding under the Act shall be appealable. The words 'under any law for the time being in force' were added to indicate the forum where the appeal would lie and such other matters as regards procedure for hearing of appeals would be decided by the law on the subject for the time being in force. Appeals against interim orders under Sections 24, 25, and 26 of the Act as pointed out already would accordingly lie and in those appeals court-fee is payable under Article 11. In paragraph 3 of AIR 1964 On 122 there is an observation made to the effect that against an order under Section 24 of the Act a miscellaneous appeal is competent. As would be subsequently said, applications filed under Sections 9 to 13 are registered as suits and appeals against decrees would be registered as first appeals and not as miscellaneous appeals.
13. In AIR 1962 Pat 489 (Antala Cope v. Sarbo Gopain) a Bench of that Court held that a decree for divorce contemplated under Section 13 cannot be treated as a decree as defined in Section 2(2) C. P. C. but is an order. The decision is contrary to the plain language of the several sections saying that decrees would be passed in those applications. Whether a proceeding initiated on application is a suit or not will be discussed at a later stage. Even assuming that the application so initiated is not a plaint and the proceeding is not a suit, yet the ultimate orders under Sections 9 to 13 are decrees as has been statutorily prescribed. The learned Judges of the Patna High Court drew some analogy in respect of appeals under the Guardinas and Wards Act and the Provincial Insolvency Act. As has been said by the Privy Council in several cases, analogy is often a dangerous argument. No inspiration could be drawn from analogy contrary to the plain language of the statutory provisions. With respect, we say that this decision does not lay down tbe correct law.
The aforesaid Patna case was followed by Barman J. in AIR 1967 Ori 41 (Mst. Puinbasi Majhiani v. Shiba Bhue) in a case arising under the Indian Succession Act, 1925. We do not express any view as to the applicability or Articles 11 and 17A of the Court-fees Act to the provisions of the Indian Succession Act. It would be sufficient to say that the observation of the learned Judge in so far as he placed reliance on AIR 1962 Pat 489 is contrary to law.
In First Appeal No. 43 of 1961 (Orissa) the then Taxing Judge G. C. Das, J. made tbe following observations:
'The Hindu Marriage Act does not provide anywhere specifically that an appeal can be filed against an order under Section 24 or 25. Therefore, if an appeal is to be preferred against such an order, one has to fall back on the provisions of the Civil Procedure Code. These, however, do not specifically include appeals against order under Section 24 or 25 or the Hindu Marriage Act. Thus, it would be wrong to hold that no appeal lies against an order granting alimony itself which is purely a discretionary relief granted by the trial Judge. An application may be made for the grant of alimony either at the time of passing the decree or even subsequent to the decree under Section 25. Even if no such application was made to the trial Judge, it can be made to the appellate Judge if an appeal is pending against the decree. Thus, the relief granting alimony appears to be ancillary to the main relief for judicial separation or divorce as the case may be. Rightly, the Taxing Officer has held that when an appeal is preferred against a decree for judicial separation challenging with it an order passed by the trial Judge granting alimony, then no ad valorem court-fee is payable on the said relief as the amount was granted by way of alimony. Accordingly, I would answer question No. 1 in the affirmative, that is, the Court-fee payable would be a fixed court-fee under Article 17A of Schedule II of the Orissa Court-fees Act.'
The aforesaid observations do not lay down the law clearly and correctly. As has already been said, against an order under Section 24 and certain orders under Sections 25 and 26 an appeal lies under Section 28 of the Act and Court-fee under Article 11 is payable on the memorandum of appeal against such orders and not under Article 17A. The observations of both Barman J. and G. C. Das J. are contrary to law and are hereby overruled.
It is not necessary to refer to a large number of cases. We agree with the conclusion in 1967 Jab LJ 712 (Nandkishore v. Parwatibai).
14. Thus the ultimate decisions of the Court under Sections 9 to 13 of the Act are decrees and are appealable as such. Such appeals would be registered as first appeals. Article 11 has no application for payment of Court-fee on tbe memorandum of appeal against the decree so passed.
15. We would now proceed to examine if court-fee is payable under Article 17A on the memorandum of appeal against the decree passed under Sections 9 to 13 of the Act.
16. The constituents of Article 17A may be enumerated:
i) The memorandum of appeal must arise out of the final decision in a suit.
ii) It is not possible to estimate at 3 money value the subject-matter in dispute.
iii) Payment of court-fee on such memorandum of appeal is not otherwise provided for by the Court-fees Act,
There is no dispute that the last two conditions are fulfilled in this case. The subject-matter of the dispute is grant of divorce as prayed for by the appellant. It is not possible to estimate the money value of the subject-matter. If Article 11 is out of the way, there is no provision in the Court-fees Act which would govern such a memorandum of appeal.
17. The only question for consideration, therefore, is whether the memorandum of appeal arises out of a suit. The words 'memorandum of appeal in every suit' have been somewhat inartistically drafted. The expression means memorandum of appeal against the judgment and decree given in a suit. The question ultimately boils down to the fact whether the proceeding for divorce before the learned Subordinate Judge constitutes a suit.
18. 'Suit' has not been defined in the Civil P. C. or in the Act. Section 21 of the Act prescribes that subject to the other provisions contained in the Act and to such rules as the High Court may make in this behalf, all proceedings under the Act shall be regulated, as far as may be, by Civil P. C. There is no provision in the Act that application filed under Sections 9 to 13 of the Act would be treated and registered as suits'. The High Court of Orissa has framed the Hindu Marriage and Divorce Rules, 1956 (hereinafter to be referred to as the rules) under the Act. Rules 3 and 4 may be extracted:
'3. Proceedings under the Act and petitions-- (a) Every proceeding under the Act shall be registered as a suit:
(b) Every petition for divorce on any of the grounds mentioned in Clause VIII or IX of Sub-section (1) of Section 13 of the Act shall be accompanied by a certified copy of the decree for judicial separation or for restitution of conjugal rights, as the case may be.
4. Contents of petitions-- (i) In addition to the particulars required to be given under Order 7, rule 1 of the Code of Civil Procedure and Section 20 of the Act, every petition for judicial separation, nullity of marriage and divorce shall contain the following particulars :--
(a) the place and date of marriage;
(b) the name, status and domicile of the wife and husband, before and after the marriage;
(c) the principal permanent address where the parties cohabited including the address where they last resided together;
(d) whether there is living any issue of the marriage and, if so, the names and dates of birth or ages of such issues;
(i) In every petition presented by a husband for divorce on the ground that his wife is living in adultery with any person or persons or for judicial separation on the ground that his wife has committed adultery with any person or persons the petitioner shall state, the name, occupation and place of residence of such person or persons so far as they can be ascertained;
(ii) In every petition presented by a wife for divorce on the ground that her husband is living in adultery with any woman or women or for judicial separation, on the ground that her husband has committed adultery with any woman or women the petitioner shall state the name, occupation and place of residence of such woman or women so far as they can be ascertained.
(e) Whether there have been in any Court in India and if so, what previous proceedings with reference to the marriage by or on behalf of either of the parties, and the result of such proceedings ;
(f) The matrimonial offence or offences charged, set out in separate paragraphs with the time and place or its or their alleged commission;
(g) Property mentioned in Section 27 of the Act, if any;
(h) The relief or reliefs prayed for:' Proceedings under Sections 9 to 13 of the Act are to be registered as suits even though they are initiated by an application on which court-fee is payable as on any ordinary application. The particulars which such an application would contain besides what is prescribed in Order 7, Rule 1 C. P. G. have been enumerated in Rules 3 (b) and 4 of the Rules.
Order 4 C. P. C. deals with institution of suits. Rules 1 and 2 thereof are as follows :
'1. Suit to be commenced by plaint.--(1) Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rule contained in Orders VI and VII, so far as they are applicable.
2. Register of suits-- The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.'
Ordinarily a suit is instituted by presenting a plaint. It is on account of this, it is contended by Mr. S. C. Mohapatra, that proceedings under Sections 9 to 13 of the Act are not suits inasmuch as they are initiated by petitions and not by presentation, of a plaint. Though proceedings under Sections 9 to 13 are initiated by petitions the formalities and material particulars required to be mentioned in those petitions are as in a plaint. The petitions are to be verified. All material particulars are to be pleaded. The essential rights claimed in the petition must be properly focussed in the averments so as to enable the Court to decide the issues in a regular trial. There is, therefore, no particular sanctity in the user of the word petition or plaint. According to the fads and circumstances of the case as required under law a petition may essentially amount to a plaint. The difference between the two appears to be more of nomenclature than of substance.
19. Section 26 C. P. C makes the position dear. Every suit shall be instituted, by the presentation of plaint or in such other manner as may be prescribed. Though proceedings under Sections 9 to 13 are initiated by petition, by rules the High Court has prescribed that those petitions would be registered as suits.
20. Section 20 of the Act deals with contents and verifications of petitions. It says that every petition presented under the Act shall state as distinctly as the nature of the case permits the facts on which the claim, to relief is founded and shall also state that there is no collusion between, the petitioner and the other party to the marriage.
21. On the aforesaid analysis, we are satisfied that petitions filed under Sections 9 to 13 of the Act are essentially in the nature of a plaint. At any rate, by the rules prescribed by the High Court on the filing of such petitions a suit would be registered as is done in the case of filing of a plaint. On this analysis the first condition of Article 17A that the memorandum of appeal must be against a decree arising out of a suit is fulfilled. We agree with the conclusion on this aspect of the case in AIR 1965 All 280 (Kusum Lata v. Kampta Pra-sad). Thus all the conditions of Article 17A are fulfilled. The memorandum of appeal is to be stamped with court-fee under Article 17A. The value of the subject-matter does not exceed Rs. 4,000/- and accordingly court fee of Rs. 22/8/- is payable.
23. We would sum up our conclusions thus:
i) Article 11 of the Court-fees Act is applicable to memorandum of appeal against orders and not decrees,
ii) Proceedings under Sections 9 to 13 of the Act are suits.
iii) Memorandum of appeal against decrees passed in a proceeding under Sections 9 to 13 of the Act is governed by Article 17A of the Court-fees Act.
(iv) Against decrees arising out of petitions under Sections 9 to 13 of the Act, first appeals are to be filed
v) Against orders arising out of such proceedings, miscellaneous appeals He,
24. The reference is answered, as indicated above. The appellant is to pay court-fee of Rs. 22/8/- and not Rs. 6/-.
This appeal is unnecessarily hanging on for a long time to determine the payment of court-fees. Hearing of the appeal be expedited.
25. I agree.