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Nrusingh Charan Nayak Vs. Smt. Hemant Kumari Nayak - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 83 of 1976
Judge
Reported inAIR1978Ori163; 45(1978)CLT558
ActsHindu Marriage Act, 1955 - Sections 3, 9 and 28; Bengal Agra and Assam Civil Courts Act, 1887 - Sections 21(1)
AppellantNrusingh Charan Nayak
RespondentSmt. Hemant Kumari Nayak
Appellant AdvocateM. Patra, Adv.
Respondent AdvocateS.C. Mohapatra, Adv.
Cases ReferredGangadhar Rakhamaji v. Manjulal Gangadhar
Excerpt:
.....co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - section 28 of the act prior to its amendment bv central act 68 of 1'976 provided :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 .the amending act came into force with effect from may 27 of 1976, but this appeal was presented before this court on 22-4-1976. though there is no substantial difference between the original and the amended provisions so far as the present dispute is concerned, there can be no two..........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 ... ... ... ' the amending act came into force with effect from may 27 of 1976, but this appeal was presented before this court on 22-4-1976. though there is no substantial difference between the original and the amended provisions so far as the present dispute is concerned, there can be no two opinions that the maintainability of the appeal has to be examined with reference to the unamended provision.this appeal has been carried in terms of section 28 of the act. there is no dispute that the impugned judgment and decree are open to appeal but the dispute is as to the forum of.....
Judgment:

1. This appeal has been carried by the defendant-husband against the decree of the learned Subordinate Judge allowing the wife's claim for restitution of conjugal rights. The application under Section 9 of the Hindu Marriage Act (hereinafter referred to as the 'Act') which was registered as a suit was not valued, but the appellant has valued the appeal at Rs. 100/- and has paid court-fee of Rs. 22.50 on the memorandum of appeal.

2. Counsel for the respondent raised objection to the maintainability of the appeal in this Court in view of the disclosed valuation in the memorandum of appeal and pressed for an order to that effect being passed. Mr. Patra for the appellant, however, does not accept the objection and contends that the appeal lay to this Court.

3. Section 9 of the Act provides that the application for restitution of conjugal rights has to be made to the District Court. District Court has been defined in Section 3 (b) of the Act to mean--

'... ... ... 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.'

The State Government in exercise of this power have notified :--

'Law Department

Notification

The 30th November 1966

No. 8304-I.-J-30/66-Judl.-- In exercise of the powers conferred by Clause (b) of S. 3 of the Hindu Marriage Act, 1955 (25 of 1955), the State Government do hereby specify that every court of principal Subordinate Judge in the State of Orissa shall have jurisdiction in respect of the matters dealt with in the said Act.

By order of the Governor

B. K. PATRA

Secretary to Government.'

The learned Subordinate Judge entertained the application under Section 9 of the Act on the basis of the aforesaid notification and proceeded to dispose of the case.

Section 28 of the Act prior to its amendment bv Central Act 68 of 1'976 provided :--

'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 ... ... ... '

The Amending Act came into force with effect from May 27 of 1976, but this appeal was presented before this Court on 22-4-1976. Though there is no substantial difference between the original and the amended provisions so far as the present dispute is concerned, there can be no two opinions that the maintainability of the appeal has to be examined with reference to the unamended provision.

This appeal has been carried in terms of Section 28 of the Act. There is no dispute that the impugned judgment and decree are open to appeal but the dispute is as to the forum of appeal -- whether it would be this Court or the Court of the District Judge.

4. Under Section 28 of the Act, the appeal is to be regulated by the law for the time being in force. Respondent's counsel has contended that under the procedural law in force, an appeal against the decree passed by a Subordinate Judge in a lis valued up to Rs. 5,000/- lies to the District Judge and relies on the provisions of the Bengal, Agra and Assam Civil Courts Act of 1887. Sub-section (1) of Section 21 of that Act provides:--

'Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie--

(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees, and

(b) to the High Court in any other case.'

The present appeal having been valued at Rs. 100/-, it is contended by the respondent that the forum of appeal is the court of the District Judge and not this Court.

5. A Bench of this Court in the case of Rama Kumari Meher v. Meenaketan Meher, AIR 1976 Orissa 32, while deal-ins with a reference made by the Taxing Officer regarding sufficiency of court-fee on the memorandum of appeal, in para. 22 of the judgment indicated:--

'We would sum up our conclusions thus:--

(i) ... ... ... ...

(ii) Proceedings under Sections 9 to 13 of the Act are suits.

(iii) ... ... ...

(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.'

Mr. Patra for the appellant places reliance on the observation in Item (iv) wherein it has been stated that a first appeal is maintainable against the decree in a proceeding under Section 9 of the Act and draws support for his conclusion from the fact that a first appeal being First Appeal No. 161 of 1973 was entertained in this Court.

As we have already noticed, the dispute before the Court was as to what would be the appropriate court-lee payable on the memorandum of appeal and there was no dispute with reference to the forum. It is true that it has been indicated that a first appeal lies against the decree in a proceeding under Section 9 of the Act, but as the question was not examined, the observation must be taken to be obiter.

It was pointed out by Lord Halsbury in Quinn v. Leathern, 1901 AC 495 :--

'... ... ... every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found ... ... ... a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all... ... ...'

This position has been approved by the Supreme Court on more than one occasion. We, therefore, feel that unaffected by the observation in the reported decision of this Court (AIR 1976 Orissa 32), the question posed should now be examined.

6. This question came up for consideration before Full Bench of the Allahabad High Court in the case of Paras Ram V. Janki Bai, AIR 1961 All 395. Delivering the decision of the Full Bench, Desai, Ag. C. J, observed (at p. 396):--

'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. Every plaint must bear the value of the subject-matter of the suit for the purpose of jurisdiction and of court-fees (vide Order 7, Rule 1 (i) C. P. C.).

A proceeding under the Hindu Marriage Act is governed by the C. P. C. (vide Section 21) and Rule 5 of the Rules made by this Court in exercise of the powers conferred under Sections 14 and 21 of the Act. Section 8 of the Suits Valuation Act lays down that the value for jurisdiction will be the same as that for the court-fees in suits (other than those referred to in the Court-fees Act Section 7(v), (vi) and (ix),) in which ad valorem court-fee is payable. Under Article 21-A of the Court-fees Act a fixed court-fee of Rs. 37.50 is payable on a petition under Section 10 of the Hindu Marriage Act; in other words the court-fee on such a petition is not ad valorem court-fee and consequently Section 8 of the Suits Valuation Act is not applicable to the present case.

When Section 8 does not apply, Section 9 applies and the value of the subject-matter of the suit is to be fixed in accordance with the Rules made by the High Court. No rules made by this Court in exercise of the power conferred by Section 9 have been brought to our notice. 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. The appellant, though bound by Section 2V of the Act read with Order 7, Rule 1 (i), Civil P. C. to state the value of the subject-matter, did not state it, presumably because he did not know how it was 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.'

This conclusion was sought to be supported by certain precedents. We may point out that this Court has framed a set of Rules known as 'Hindu Marriage and Divorce Rules of 1956'.

No provision has, however, been made in these Rules regarding valuation of the suit. The observations of the Full Bench, therefore, have full application to cases under the Hindu Marriage Act arising within this State.

A Division Bench of the Allahabad High Court in the case of Dal Chand Singh v. Swarn Pratap, AIR 1965 All 46, again considered a similar question. There the petition under Section 10 o,f the Act had been valued at Rs. 1,000/-. When the appeal came up before the learned Single Judge it was contended that the appeal lay to the District Judge and not to the High Court. The matter was examined afresh with reference to the provisions of the Act and the other procedural law. The Court came to hold that the appeal was not maintainable on account of this valuation before the High Court.

A Bench of the Punjab High Court in the case of S. Kalyan Singh v. Tej Kaur, AIR 1961 Punj 480, examined the tenability of a first appeal against the decision in a proceeding under Section 10 of the Act. The original proceeding had not been valued and, therefore, it was contended that there was no material to hold that the valuation of the litigation was more than Rs. 5,000/- so as to make a first appeal to the High Court competent. The learned Chief Justice relied upon a decision of the Madras High Court in the case of Valliammal Ammal v. Periaswami Udayar, AIR 1959 Mad 510 and extracted a passage from the judgment of Ram-chandra Iyer, J., as the learned Judge then was, and in the facts of the case came to hold that in the absence of a valuation, the appeal lay to the High Court.

A Bench of the Bombay High Court in the case of Gangadhar Rakhamaji v. Manjulal Gangadhar, AIR 1960 Bom 42, examined the same question in the light of the definition of 'District Court' and a notification authorising the Civil Judge to entertain proceedings under the Act. The Court observed (at pp. 43-44):--

'... ... ... Thus under the expression 'district court' as used in the Hindu Marriage Act comes all city civil courts, all courts of District Judges of the district and also other civil courts notified by the State Government in the manner provided. It is not correct to say, as contended by Mr. Bhasme, that any civil court in the district other than the principal civil court of original jurisdiction, when notified by the State Government as having jurisdiction in matters dealt with under the Hindu Marriage Act, becomes a 'district court' as meaning the principal civil court of original jurisdiction for the purposes of the Hindu Marriage Act by virtue of the definition given in Section 3(b). It is the court to which petitions under the Hindu Marriage Act lie and which has jurisdiction in respect of matters dealt with in the Act. Since in the various provisions of the Act the court which has jurisdiction in matters dealt with in the said provisions is referred to as the 'district court' the inclusive part of the definition says that civil courts other than the principal civil court of original jurisdiction when notified by the Government will be included within the expression 'district court' as used in the Act. The Court of the Civil Judge, Senior Division, therefore, which is notified by the State Government as having jurisdiction in matters dealt with under the Hindu Marriage Act, is a 'district court' within the definition of Section 3(b) of the Hindu Marriage Act, but it is not the principal civil court of original jurisdiction, nor does it exercise its jurisdiction as such principal civil court of original jurisdiction. Section 28 of the Hindu Marriage Act leaves the forum of appeal to be determined under the law for the time being in force which, in the present case, is the Bombay Civil Courts Act. The forum of appeal from the order or decree of the Court of the Civil Judge, Senior Division, under the Bombay Civil Courts Act is the court of the District Judge of the District. In the present case, therefore, which was decided by the Civil Judge, Senior Division, the appeal lies to the Court of the District Judge and not to the High Court.'

It is unnecessary in our view to multiply authorities. This matter was heard along with a batch of first appeals where the similar dispute regarding maintainability had been raised. A request was. therefore, made at the Bar that the guideline may be indicated regarding maintainability of appeals under the Act. We would accordingly hold:--

(1) Courts other than the principal Civil Court of original jurisdiction which by notification made under Section 3(b) of the Hindu Marriage Act are conferred with jurisdiction to entertain proceedings under the Act are not 'District Court proper' and irrespective of valuation an appeal would not lie against decrees of such Courts to the High Court.

(2) The appellate forum has to be determined in accordance with the provisions of the Bengal, Agra and Assam Civil Courts Act. Where the dispute is valued up to Rs. 5,000/-, the appeal would lie to the District Judge when the impugned decree is of a Court other than the principal Civil Court of original jurisdiction. In a case where the valuation is above Rs. 5,000/- and the decree is by a Court other than the principal Civil Court of original jurisdiction, the appeal would lie to the High Court; and

(3) Where no valuation has been put in the proceeding and there is no material to indicate that the appeal is valued at more than Rs. 5,000/-, the appeal would also lie to the District Court and not to the High Court because under the provisions of the Bengal, Agra and Assam Civil Court Act, only on a stated valuation, first appeals lie to the High Court.

7. On the aforesaid basis, the present appeal where the valuation has been shown to be Rs. 100/-, the appeal would lie to the Court of the District Judge and the First Appeal is not maintainable. We accordingly direct that the memorandum of appeal be returned to the filing Advocate for presentation in proper Court.


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