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Manilal Maganlal Mistry Vs. Jasumatiben D/O Mistry Ramjibhai Bavjibhai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Judge
Reported in(1964)5GLR407
AppellantManilal Maganlal Mistry
RespondentJasumatiben D/O Mistry Ramjibhai Bavjibhai
Cases ReferredRodgar v. Rodgar. Suit Nos.
Excerpt:
.....27th june 1960 praying that since the plaintiff bad not complied with the order of the learned civil judge in so far as it directed the plaintiff to pay maintenance pendente lite to the defendant the suit should be either stayed or dismissed. on the application the learned civil judge made an order on 25th july 1960 directing that the plaintiff should pay to the defendant the balance of the amount due upto the date of the order and such further amount as might become due to the plaintiff on or before 25th july 1960 and that if the plaintiff failed to pay the same the suit should stand dismissed. 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..........to pay to the defendant the expenses of the suit and maintenance pendente lite. the learned civil judge made an order on the application on 18th january 1960 directing the plaintiff to pay to the defendant a sum of rs. 100/- in respect of the expenses of the suit and a sum of rs. 40/- per month as and by way of maintenance during the pendency of the suit. the plaintiff thereafter applied for time for two months in order to pay up the amount ordered by the learned civil judge but the learned civil judge granted him time only for a period of fifteen days. the plaintiff ultimately deposited on or about 22nd february 1900 the sum of rs. 100/- repre-senting the expenses of the suit but did not make payment of any amount in respect of maintenance pendente lite on the ground that he was.....
Judgment:

P.N. Bhagwati, J.

1. This Revision Application arises out of a suit filed by the plaintiff against the defendant for a declaration that the marriage between the plaintiff and the defendant was null and void on the ground that the defendant was impotent at the time of the marriage and continued to be so until the institution of the suit. The suit was obviously filed by the plaintiff against the defendant under Section 12 of the Hindu Marriage Act. In the suit an application was made by the defendant under Section 24 of the Hindu Marriage Act praying that the plaintiff be directed to pay to the defendant the expenses of the suit and maintenance pendente lite. The learned Civil Judge made an order on the application on 18th January 1960 directing the plaintiff to pay to the defendant a sum of Rs. 100/- in respect of the expenses of the suit and a sum of Rs. 40/- per month as and by way of maintenance during the pendency of the suit. The plaintiff thereafter applied for time for two months in order to pay up the amount ordered by the learned Civil Judge but the learned Civil Judge granted him time only for a period of fifteen days. The plaintiff ultimately deposited on or about 22nd February 1900 the sum of Rs. 100/- repre-senting the expenses of the suit but did not make payment of any amount in respect of maintenance pendente lite on the ground that he was unable to do so owing to his bad monetary condition. The defendant thereupon made an application on or about 27th June 1960 praying that since the plaintiff bad not complied with the order of the learned Civil Judge in so far as it directed the plaintiff to pay maintenance pendente lite to the defendant the suit should be either stayed or dismissed. On the application the learned Civil Judge made an order on 25th July 1960 directing that the plaintiff should pay to the defendant the balance of the amount due upto the date of the order and such further amount as might become due to the plaintiff on or before 25th July 1960 and that if the plaintiff failed to pay the same the suit should stand dismissed. The plaintiff was obviously aggrieved by this order made by the learned Civil Judge and he accordingly preferred the present Revision Application in this Court.

2. At the outset Mr. J.P. Joshi learned advocate appearing on behalf of the defendant raised a preliminary objection to the maintainability of the Revision Application. The preliminary objection was that under Section 28 of the Hindu Marriage Act an appeal against the order of the learned Civil Judge lay to the District Court and that no Revision Application was therefore maintainable in the High Court. Mr. B.K. Amin learned advocate appearing on behalf of the plaintiff contested this position and urged that Section 28 did not apply to the order passed by the learned Civil Judge and that there being no appeal against such order the present Revision Application was properly filed before the High Court. The narrow question which thus arises on the preliminary objection is as to what is the true interpretation of Section 28: does it give any right of appeal against an order made by the Court dismissing the suit on the ground of non-compliance with an order for maintenance pendente lite previously made by the Court. Section 28 is in the following terms:

28 Enforcement of and appeal from decrees and orders: 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.

The contention of Mr. J.P. Joshi was that under Section 28 a right of appeal is conferred against all decrees and orders made by the Court in any proceeding under the Hindu Marriage Act and that since the order complained of in this Revision Application was an order made by the learned Civil Judge in the suit which was a proceeding under the Hindu Marriage Act the order was appealable under Section 28 and the proper forum before which the appeal lay was the District Court. Mr. B.K. Amin agreed that if an appeal lay against the order of the learned Civil Judge such appeal would have to go before the District Court. But he contended that the application made by the defendant for stay or dismissal of the suit on the ground that the plaintiff had failed to comply with the order granting maintenance pendente lite was not a proceeding under the Hindu Marriage Act and that the order made by the learned Civil Judge on such application could not be said to be an order made by the Court in any proceeding under the Hindu Marriage Act within the meaning of Section 28 and that there was therefore no right of appeal against such order. These rival contentions apparently raised a controversy regarding the true meaning to be attached to the words all decrees and orders made by the Court in any proceeding under this Act occurring in Section 28 but it is not necessary to decide this wider question of construction since it is possible to dispose of the question arising on the preliminary objection on a narrow and limited ground. It may be that the application on which the order complained of in the present Revision Application was made by the learned Civil Judge could not be said to be a proceeding under the Hindu Marriage Act since there is no section of the Hindu Marriage Act which authorizes the making of such an application but the order was an order dismissing the suit which was certainly a proceeding under the Hindu Marriage Act and it was therefore clearly an order made by the Court in a proceeding under the Hindu Marriage Act. If an order dismissing a suit cannot be said to be an order made in the suit it is difficult to see what other order can be said to be an order made in the suit. The order in the present case had the effect of putting an end to the suit and since the suit was admittedly proceeding under the Hindu Marriage Act the order was indisputably an order made in a proceeding under the Hindu Marriage Act and an appeal therefore lay against the order under Section 28 quite irrespective of the question as to what is the true connotation of the words all decrees and orders made by the Court in any proceeding under this Act occurring in the section.

3. Undaunted by this conclusion however Mr. B.K. Amin contended that even if the order of the Civil Judge was appealable under Section 28 an appeal against such order lay to the District Court and not to the High Court and there was therefore no bar against the exercise of the revisional jurisdiction by the High Court. Mr. B.K. Amin urged that in making the order the learned Civil Judge had exercised a jurisdiction not vested in him by law or had in any event acted illegally in the exercise of his jurisdiction since there was no provision of law which entitled the learned Civil Judge to make an order dismissing the suit on the ground of noncompliance with the previous order made by him awarding maintenance pendente lite under Section 24 and that I should therefore interfere in revision with the order made by the learned Civil Judge. Mr. J.P. Joshi opposed this submission of Mr. B.K. Amin and contended that the exercise of revisional jurisdiction was discretionary and that since an appeal lay to the District Court from the order of the learned Civil Judge I should not interfere with the order in revision in the exercise of my discretion. Now Mr. B.K. Amin is right in his contention that merely because an appeal lay to the District Court that would not take away the power of the High Court to revise the order made by the learned Civil Judge. It is only if an appeal lay to the High Court that the High Court would be precluded from exercising its revisional jurisdiction in respect of the order made by the learned Civil Judge. It is therefore clear that I have jurisdiction to revise the order made by the learned Civil Judge if proper grounds for the exercise of revisional jurisdiction are made out by the plaintiff. But the question still remains whether I should in the exercise of my discretion interfere with the order of the learned Civil Judge even if sufficient grounds are made out for invoking the revisional jurisdiction of the High Court. Now ordinarily when an appeal lies to a lower appellate Court and such appeal is not preferred the High Court would be very reluctant to exercise its revisional jurisdiction but there may be special circumstances which may induce the High Court to exercise its power of revision even though no appeal has been preferred to the lower appellate Court. Such circumstances exist in the present case. I shall presently examine whether the learned Civil Judge had jurisdiction to make the impugned order and whether even if he had such jurisdiction he acted illegally in making the same. But it is indisputable that if the learned Civil Judge had no jurisdiction to make the order complained of or if he acted illegally in making such order this is a fit case in which I should interfere in revision even though the plaintiff could have filed an appeal to the District Court. The effect of the order is to debar the plaintiff from pursuing his remedy altogether. The suit stands dismissed and plaintiff will be precluded from taking any proceedings in future for a declaration of nullity of marriage even though it may ultimately turn out that the allegations on which the suit was filed were well-founded. The plaintiff no doubt committed a breach of the order made by the learned Civil Judge granting maintenance pendente lite to the defendant. But that does not mean that the plaintiff should for ever be precluded from pursuing his legitimate remedy against the defendant. Of course when I say this I must not be deemed to have expressed any opinion on the merits of the case one way or the other but every litigant however mean or wicked he may be is entitled to have his claim adjudicated in a Court of law and if an order is made by a Court without jurisdiction illegally precluding him from seeking such adjudication it is indeed a serious matter which must merit interference at the hands of this Court. Mr. J.P. Joshi is certainly right when he contends that the plaintiff has behaved in a dastardly manner and that he does not deserve any sympathy from this Court. But this is not a question of sympathy. It is a question affecting the right of a litigant and since for reasons which I shall presently state the learned Civil Judge had no jurisdiction to make the impugned order it is necessary in the interests of justice that the order should be set aside. There is also another circumstance which must weigh with me in deciding whether I should entertain the revision application notwithstanding the fact that no appeal was filed against the order of the learned Civil Judge in the District Court. The question whether an appeal lay to the District Court or not was a question depending on the true construction of the provisions of Section 28 and it was certainly not a question entirely free from difficulty. If I now decline to interfere in revision and compel the plaintiff to resort to the remedy by way of an appeal to the District Court such appeal would be today time barred and it would be a matter of speculation at this stage whether the plaintiff would or would not be entitled to condonation of delay in filing the appeal. If the delay in filing the appeal is not condoned the plaintiffs suit will stand dismissed for ever barring his right to claim divorce against the defendant even if his allegations be well-founded. This is a circumstance which must deter me from refusing to entertain the revision application merely on the ground that an appeal lay to the District Court. I am therefore of the opinion that even though an appeal lay to the District Court from the order of the learned Civil Judge and such appeal was not preferred by the plaintiff this is a fit case in which I should exercise my revisional jurisdiction.

4. That takes me to the last question namely whether in making the order complained of in this revision application the learned Civil Judge acted without jurisdiction or in any event illegally in the exercise of his jurisdiction. On this point Mr. J.P. Joshi had little to say. I do Dot know of any inherent power in the Court to dismiss a suit or a proceeding merely on the ground that a party has disobeyed a previous order made by it. The penalty of dismissal is a serious penalty which 4 cannot be imposed in the absence of statutory provision. The statute may provide that if a party to a litigation does not carry out an order made by the Court his suit or proceeding shall stand dismissed but unless such a provision is made no suit or proceeding can be dismissed by the Court. If a party does not carry out an order made by the Court the Court may take such appropriate proceedings against the party by 4 way of contempt or otherwise which are available to it or the party in whose favour the order is made may adopt proceedings in execution but in my opinion it is not given to the Court to inflict the penalty of dismissal on any such ground. I may point out in this connection that an express provision enabling the Court to dismiss a suit for non-compliance with an order made by the Court is to be found in Order XI Rule 21 of the Code of Civil Procedure. Similar provisions are also to be found in the procedural law of England. No such provision entitling the Court to dismiss the suit on the ground of non-compliance with an order for payment of expenses of the suit or maintenance pendente lite is however to be found either in the Code of Civil Procedure or in the Hindu Marriage Act. In the absence of such provision it is clear that the learned Civil Judge had no jurisdiction to make the order dismissing the suit. Mr. J.P. Joshi drew my attention to a decision of the High Court of Bombay in W. Codd v. B.E. Codd A.I.R. 1924 Bombay 132. This decision also supports me in the view I have taken namely that the Court has no jurisdiction to make an order dismissing a suit merely because the plaintiff has failed to carry out an order of the Court. In that case an order for security of costs was made against the husband in a petition filed by the husband against the wife for divorce. The husband failed to give security and the Court thereupon dismissed the petition of the husband. Dealing with this situation Marten J. observed as follows:

I had occasion in another case of Rodgar v. Rodgar. Suit Nos. 1418 and 2915 of 1922 to point out that as far as I can see the English authorities do not strike out his defence to his wife's petition merely because he has failed to give security. What they do as far as I can see and as far as counsels researches have so far been brought before me is to stay the husbands petition and as regards the wife's petition to proceed against the husband for contempt if he is proved to be able to pay but contumaciously refuses to do so.

5. It would thus be seen that even in England the Court is not entitled to dismiss a petition of the husband merely because the husband has failed to comply with the order of the Court directing him to give security for costs of the wife. The practice in England is to stay the petition until the husband complies with the order. This practice which has prevailed in England may be followed in India in cases under the Indian Divorce Act by reason of the provisions of Section 7 of that Act. But I do not think such an order can be made by the Court in cases under the Hindu Marriage Act where there is no provision corresponding to Section 7 of the Indian Divorce Act. I am of course not directly concerned with that question in the present Revision Application and I need not therefore say anything more about it. But one thing clearly emerges and that is that the Court has no power to dismiss the suit on the ground that the plaintiff has failed to comply with the order for giving security for costs or for expenses of the suit or maintenance pendente lite. The order of the learned Civil Judge was therefore obviously without jurisdiction and must be set aside.

6. In the result I allow the Revision Application set aside the order passed by the learned Civil Judge and direct that the suit be heard and disposed of by the learned Civil Judge as early as possible. There will be no order as to costs of the Revision Application.


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