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Mt. Kalawati and anr. Vs. Devi Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtHimachal Pradesh High Court
Decided On
Case NumberMisc. First Appeal Nos. 93 of 1960 and 128 of 1959
Judge
Reported inAIR1961HP7
ActsHindu Marriage Act, 1955 - Sections 3 and 28; ;Himachal Pradesh (Courts) Order
AppellantMt. Kalawati and anr.
RespondentDevi Ram and anr.
Appellant Advocate M.L. Aukta, Adv. in F.A No. 93 of 1960 and; A.C. Sud, Adv. in F.A. No. 128 of 1959
Respondent Advocate P.L. Sharma, Adv. in F.A. No. 93 of 1960 and; R.N. Malhotra, Adv. in F.A. No. 128 of 1959
DispositionObjection rejected
Cases ReferredGangadhar Rakhamaji v. Manjulal Gangadhar
Excerpt:
- .....but a plaint has not been defined in the code. a petition filed under the provisions of the hindu marriage act is not required by law to contain the particulars that have to be given in a plaint. it has been urged on behalf of the respondents that in tew a plaint implies a private memorial tendered to a court in which the person sets forth his causation--the exhibition of an action in writing--and that as a petition under the hindu marriage act serves the same purpose as a plaint, it should be treated as a suit.6. in the case of secretary of state v. kundan singh, air 1932 lah 374, the question for consideration was as to whether an application under para 17, schedule 2, civil procedure code, asking the court to file an agreement to refer a dispute to arbitration amounted to a.....
Judgment:

C.B. Capoor, J.C.

1. Miscellaneous First Appeal No. 83 of 1960 arises out of a petition filed by the appellant under Sections 10 and 12 and Miscellaneous First Appeal No. 128 of 1959 arises out of a petition filed by the appellant under Section 9 of the Hindu Marriage Act, 1955.

2. A common preliminary objection was raised on behalf of the respondents to the aforesaid appeals and I propose to dispose of that objection by this order. The objection was 'that the appeals were entertainable by the Court of the District Judge and not by this Court inasmuch as the decrees appealed against were passed by the Senior Subordinate Judge.

3. The relevant portion of Section 28 of the aforesaid Act runs as below :

'All decrees and orders made by the Court in lany proceeding under this Act shall be enforced in like manner as the decrees and orders of the Courts 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.'

It will have been noticed that while a provision has been made in the aforesaid section for filing of appeals, the forum of appeal has not been specifically provided for. The forum of appeal, therefore, would depend on the law for the time being in force. Such law, so far as the State of Himachal Pradesh is concerned, is contained in the Himachal Pradesh (Courts) Order, 1948. The relevant portion of paragraph 31 of that Order runs as below :

'Save as otherwise provided by any law for the time being in force, appeals from decrees of Courts exercising original jurisdiction shall lie as follows:

(a) from a decree of a Subordinate Judge in a suit of value not exceeding five thousand rupees, to the Court of the District Judge; and

(b) in all other cases, to the Court of the Judicial Commissioner.'

4. In order that an appeal may lie under Clause (a) of paragraph 31 of the Himachal Pradesh (Courts) Order, 1948, three conditions have to be satisfied : (i) that the decree or order should have been made in a suit, (ii) that the valuation of the subject matter of the suit should not exceed Rs. 5,000/- and (iii) that the decree or order should have been passed by a Subordinate Judge.

5. The first question that arises for consideration is as to whether a petition can be considered to be a suit. The word 'suit' has not been defined in the Civil Procedure Code. Section 26 of that Code, however, provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Order VII of the Code provides for the particulars which a plaint shall contain, but a plaint has not been defined in the Code. A petition filed under the provisions of the Hindu Marriage Act is not required by law to contain the particulars that have to be given in a plaint. It has been urged on behalf of the respondents that in tew a plaint implies a private memorial tendered to a Court in which the person sets forth his causation--the exhibition of an action in writing--and that as a petition under the Hindu Marriage Act serves the same purpose as a plaint, it should be treated as a suit.

6. In the case of Secretary of State v. Kundan Singh, AIR 1932 Lah 374, the question for consideration was as to whether an application under para 17, Schedule 2, Civil Procedure Code, asking the Court to file an agreement to refer a dispute to arbitration amounted to a suit within the meaning of Section 80 of the Code. Sub-paragraph (2) of paragraph 17, referred to above, provided that an application to file in Court an agreement to refer to arbitration shall be numbered and registered as a suit and in spite of that provision it was helldl that the application was to be treated as a suit for certain purposes only and not for all purposes and that the application could not be considered to be a suit for the purpose of Section 80, Civil P. C. Sir Shadi Lal, C. J. as he then was, in delivering the judgment of the Bench, observed as follows:

'........ It may therefore be stated as a general proposition that, unless there is any special provision to the contrary, a proceeding that does not commence with a plaint cannot be held to be a suit'.

7. In the Hindu Marriage Act of 1955, except for the fact that certain decisions made thereunder were to have the effect of decrees, there is nothing else to suggest that a petition filed under its provisions would be a suit and I do not think that merely because the decisions in certain petitions under the Hindu Marriage Act were to have the effect of decrees those petitions can be considered to be suits for the purposes of para 31 of the Himachal Pradesh (Courts) Order, referred to above. For holding otherwise, one will have to strain the language of Clause (a) of the aforesaid paragraph.

8. The second question that crops up for decision is as to whether the value of the subject matter of a petition under the Hindu Marriage Act does not exceed Rs. 5,000/-. The valuation of the subject-matter of such a petition is not required by law to be mentioned in the petition and it is extremely doubtful if in view of the preamble and of the provisions of the Suits Valuation Act, rules can be framed fixing the valuation of the subject matter of such a petition. On behalf of the respondents, it was contended that according to the rules framed by the Judicial Commissioner under Section 9 of the Suits Valuation Act, the value of a suit for restitution of conjugal rights for the purposes of Suits Valuation Act and the Himachal Pradesh (Courts) Order, 1948, was fixed at Rs. 1,000/- and the same should be considered to be the valuation of a petition for restitution of conjugal rights.

I do not think that the rule governing the fixation of valuation of a suit for restitution of conjugal rights can apply to a petition under Section 9 of the Hindu Marriage Act. The value of the subject matter of a petition under the Hindu Marriage Act is not capable of valuation. In the case of Villiammal Ammal v. Periaswami Udayar, reported in AIR 1959 Mad 510, while it was recognized that a matrimonial dispute is not a matter which is capable of valuation, it was observed that it could not b' stated that the subject matter of the dispute exceeded Rs. 10,000/-. Now if a matter is incapable of valuation, it cannot be said as to whether its value exceeded Rs. 10,000/- or not and I find it rather difficult to appreciate the reasoning of the learned Judge of the Madras High Court.

9. It has next to be seen if the decrees or orders passed by a civil Court notified under Section 3 (b) of the Hindu Marriage Act can be considered to be decrees or orders passed by a Subordinate Judge within the meaning of Clause (a) of paragraph 31, referred to above. In the Madras case, referred to above, it was held that when a question is stated to be referred to an established Court, it imports that ordinary incidents of the procedure of that Court are to attach and also that any general right of appeal from its decision likewise attaches and it was further held that as the decisions of a Subordinate Judge in cases not exceeding Rs. 10,000/- in valuation were appealable to the District Judge the decrees or orders passed by a Subordinate Judge notified under Section 3 (b) of the Hindu Marriage Act would also lie to the District Judge.

This is one way of looking at the question. The other way of looking at it is that a civil Court notified under Section 3 (b) of the Hindu Marriage Act is a District Court and being a special class of Court, it cannot be considered to be the Court of a Subordinate Judge simpliciter. In the aforesaid Madras case, it was also held that a civil Court notified under S. 3 (b) of the Hindu Marriage Act was not a District Court under that section. The Bombay High Court in the case of Gangadhar Rakhamaji v. Manjulal Gangadhar, reported in AIR 1960 Bom 42 did not share that view and held that such a civil. Court was a District Court under that section. Keeping in view the definition of the 'District Court' as given in Section 3 (b) of the Hindu Marriage Act, it is rather difficult to agree with the view of the Madras High Court that a civil Court notified under Section 3 (b) would not be a District Court under the aforesaid Act.

The Bombay High Court was further of the opinion that a civil Court notified under Section 3 (b) would not be considered to be a principal Court of original civil jurisdiction and with that view, I respectfully agree. Even though a civil Court notified under Section 3(b) does not become a principal Court oi original civil jurisdiction the fact remains that it is a District Court as defined in the Hindu Marriage Act and being a special class of Court, its decisions should not be considered to be the decisions of a Subordinate Judge simpliciter.

10. The decision of the aforesaid Bombay and Madras cases respectively turned on the interpretation of Section 8 of the Bombay Civil Courts Act and of Section 13 of the Madras Civil Courts Act. Section 8 of the Bombay Civil Courts Act has not been quoted in the Bombay case, but it appears that that section provided that an appeal from the decree or order of a civil Judge Senior Division lay to the District Court except in the case of decisions in suits where the amount or value of the subject matter exceeded Rs. 10,000/-. Section 13 of the Madras Civil Courts Act has, however, been quoted in the Madras case and the material portion runs as below :

'Regular or special appeals shall when such appeals are allowed by law lie from the decrees and orders of the District Court to the High Court. Appeals from the decrees and orders of Subordinate Judges and District Munsifs shall when such appeals are allowed by law lie to the District Court, except when the amount or value of the subject matter of the suit exceeds Rs. 10,000/- in which case the appeals shall lie to the High Court.'

I have not been able to lay my hands on the Bombay and Madras Civil Courts Acts, but on the basis of the reference to the relevant provisions of those Acts made in the aforesaid cases, I presume that in none of those Acts a residuary provision such as finds place in para 31 (b) of the Himachal Pradesh (Courts) Order, 1948. is contained, and if this presumption of mine is correct, there would be a vital difference between the relevant provisions of the Himachal Pradesh (Courts) Order and those of the Bombay and Madras Civil Courts Acts. For the purposes of those Acts, it had to be held that a petition was a suit and that the value of the subject matter of a petition either exceeded Rs. 10,000/- or not, whereas for the purposes of the Himachal Pradesh (Courts) Order an appeal against a decree or order arising out of a petition can lie under the residuary clause and it does not appear to be necessary to have recourse to a strained and forced interpretation.

11. It is not without a considerable strain on the language of Clause (a) of paragraph 31 of the Himachal Pradesh (Courts) Order that a decree or order passed by a civil Court notified under Section 3 (b) of the Hindu Marriage Act can be considered to be a decree or order of a Subordinate Judge in a suit of value not exceeding Rs. 5,000/-, whereas one has simply to read Clause (b) of that paragraph for holding that a decree or order of a District Court as defined in Section 3(b) of the said Act would lie to I the Court of the Judicial Commissioner.

12. I, therefore, overrule the preliminary objection.

13. Let a copy of this order be placed on the record of Miscellaneous First Appeal No. 128 of 1959.


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