Allahabad High Court
Savita Chhabra vs Ramji Chhabra on 27 August, 1991
Equivalent citations: I(1992)DMC35
JUDGMENT B.L. Yadav, J.
1. These analogous First Appeal From Order and Civil Revision involve similar questions for determination hence it is convenience to dispose them of by a common judgment.
2. This is defendant's (the mother of minor Rishabh Chhabra) First Appeal From Order under Order 43 Rule l(s) of the Code of Civil Procedure 1908 (for short the Code) directed against the impugned orders dated 15.10.1990 and 7.9.1990 passed in Misc. Case No. 1l5 of 1990 arising out of proceedings under Sections 7 & 8 of the Guardians and Wards Act 1890 (for short the Act).
3. The factual matrix of the case is that Sri Vinay Chhabra husband of Smt. Savita Chhabra (for short the appellant) died in a motor accident leaving behind him his minor son Rishabh Chhabra. Thereafter, Ramjeet Chhabra real brother of deceased Vinay Chhabra and the uncle of the minor and a partner in the Firm got himself appointed as guardian of the person and' property of minor. When Smt. Savita Chhabra, mother of minor Rishabh Chhabra learnt that even though she was mother and natural guardian but was not appointed as guardian, made an application under Section 39 of the Act on the grounds that she, being real mother of minor was natural guardian and she could look after the interest of minor better than Ramjeet Chhabra the respondent contending partner whose interest was conflicting to that of the' Minor. During pendency of aforesaid application, another application under Section 12 of the Act, read with Order 40 of the Code, for an interlocutory order for the appointment of the Receiver, was made so that the person and property of the minor in the partnership firm may be protected. That application was rejected by order dated 7.9.1990 passed by the District Judge which is quoted below:
"Heard.
This is an application for appointment of Receiver No Receiver can be appointed in these proceedings under law. Rejected."
4. Against this order Civil Revision has been filed. Another application for appointment of Receiver and payment of interim maintenance was moved by the appellant. That application was also rejected by an order dated 15.10.90, even after holding (vide page 56 of paper book, under para 4) that receiver can be appointed. But it was held that the earlier order dated 7.9.90 would operate as resjudicata.
5. The order dated 7.9.1990 has been challenged in the civil Revision and both the orders have been challenged in the aforesaid First Appeal From Order. The Civil Revision was time barred but after hearing learned Counsel for the parties, as sufficient ground was made out, the application under Section 5 of the Limitation Act has been allowed and now Civil Revision and First Appeal From Order would be decided on merits.
6. Mr. S.N. Misra, learned Counsel for the appellant/applicant urged that the legislature in its wisdom has enacted Section 120) of the Act in a language which has very wide sweep, and order for appointment of Receiver can be passed under Section 12 of the Act and Order 40, of the Code. Even though under Section 47 of the Act this order has not been made appellable; but the provisions of Sections 12 and 47 of the Act may be read along with Section 141 of the Code, and as the present proceedings under Sections 7 and 8 of the Act and other proceedings under other Sections of the Act are certainly of civil nature, consequently provisions of Section 141 of the Code would apply, hence against the order rejecting the application under Section 12 of the Act for the appointment of Receiver or an application under Order 40 of the Code, F. A.F.O. would lie under Order 43 Rule 1 (s) of the Code. In the alternative, it was also urged that the orders under Section 48, as the finality of an order under the Act has been attached but the orders including the orders under Section 12(1) the Act rejecting application for appointment of Receiver is certainly revisable under Section 115 of the Code which was equivalent to Section 622 of the Old Code as provided under Section 48. Revision preferred by the appellant against the order dated 7.9.90 was maintainable. Considering facts and circumstances of the case, as interest and protection of person and property of minor, was involved and dispute was between the partners of the firm, it was just and proper that Receiver be appointed and some positive order for maintenance may also be passed during pendency of the proceedings. Reliance was placed on Jagannath Vasudev Pundit Maharaja v. H.H. The Maharaja of Kolhapur & Ors.s (A I.R. 1921 Bombay 463), Mt. Chandrawati v. Jagan Nath Singh Ram Lal & Ors.s (A.I.R. 1925 Lahore 489), Deokishen and Others v. Asaram (A.I.R. 1933 Nagpur 62) and Godoobai v. Janabai (A.I.R 1929 Nagpur 119).
7. Learned Counsel for the respondents, on the other hand urged that under Section 47 of the Act only those orders are appellable which have been mentioned therein. As order under Section 12(1) of the Act is not mentioned under Section 47 of the Act, hence the F.A.F.O. was not maintainable. As earlier application for the appointment of Receiver was rejected by the order dated 7.9.90, and that order has become final hence the same would operate as resjudicata. Reliance was placed on Daman Singh Prabha Dayal v. Mt. Maktul Kaur (A.I.R. 1955 Punjab 137).
8. Having heard learned Counsel for the parties points that fall for our determination are, whether in proceedings under Sections 7 and 8 of the Act an interlocutory order for appointment of Receiver for the protection of person and property of minor may be passed under Section 12(1) of the Act, or not, ? and whether against such order appeal is maintainable under Order 43(s) of the Code or not ? and whether minor was entitled to maintenance under the circumstances of the case.
9. Ex-Abundanti-Cautela, the statutory provisions of Section 12(1) of the Act so far as it is relevant for our purpose, is set out:
"12. Power to make interlocutory order for Production of minor and interim protection of person and property. (1). The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produce at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper"
10. Before we place an interpretation of Section 12(1) of the Act it appears pertinent to have some cardinal rules. The Act is an act to consolidate and amend the law relating to Guardians and Wards. It deals with the welfare of the minor and the mode of appointment of Receiver and other incidental matters pertaining to the Guardians and Wards. There is no denying the fact that the Act is of a predominent social nature and contains benevolent provisions. The approach of a Court, called upon to interpret the provisions of such statutes; has to be in that light. The Court must take broad view of the background and policy of the Statute in question. At the same time dominent purpose of the Statute, the intention of the legislature and the policy underlying have to be considered while construing the provision.
(See Okerake v. B.L. Borough Counsel (1967) 1 Q.B. 42, Brown v. Brash Ambrose, (1988) A.L.E.R. 922, O.L. Amme and Another v. N. Govindan Nyer (Judgements Today, 1990 (3) S.C. 230).
11. The object of the Act has to be remembered and such construction has to be placed which would advance the object and purpose of the Act and a construction which would result to reducing the object to a dead letter or would defeat object and purpose should be avoided.
(See Kesho Ram & Co. v. Union of India, (1989) 3 SCC 151 at page 164)
12. The beneficial Statute should not be construed too rigidly, The Guardians and Wards Act should not be construed too rigidly as it was for the protection of the minors and is a beneficial Statute. (See Amertham Kudumbh v. Sarnem Kundumban, (1991) 3 S.C.C. 20 which was a case pertaining to the interest of minor under Section 8(3) and 5(k) of Hindu Minority and Guardianship Act.
13. We are accordingly of the opinion that as the Act is beneficial Legislation consequently a liberal interpretation has to be placed so as to advance the object of the Act and the Intention of the Legislature and for this purpose we make a constructive approach for the interpretation so as to fulfil the purpose of the Act and if necessary to iron out the creases.
14. Head note of Section 12, no doubt provides provision which enables the Court to pass an interlocutory order, may be for the protection of the minor and interim protection of the person and property. The expression 'interlocutory order' of the protection of the person and property of the minor is so comprehensive that it certainly includes an order for the appointment of the Receiver as contemplated by Order 40 Rule 1 of the Code. We are constrained to say that Section 12(1) of the Act is not happily worded. Strictly speaking language must have been more expressive so as to leave no room for doubt. Even if there is a case of 'Casus Omissus' nevertheless while interpreting a Statute, it has to be kept in the mind, that it is a case of Omission in the language employed by the legislature and that has to be left for the legislature to rectify the same and it is not for the Courts to fill up the 'Casus-Omissus; as the Judges are not usually expected to legislate. (See A.I.R. 1953 S.C. 143).
15. In the present case, however, we would allow the intention of Statute to over ride the defects of wording but our ability to do so is limited by the recognised cannot of interpretation. We would like to prefer an alternative construction which is less fitted to the words but better fitted to the intention of the legislature. We would try to prefer this alternative construction carrying out the intention of the Act. (See Glad Stone v. Bower, (1960) 3 A.U.E.R 353).
16. Very often it appears that legislature employees such language which does not express its intention. That appears for the reasons as contained in "Lattin maxim Neque Leges Neque Senatus Consulta Ita Scribi Possunt Ut Omnis Casus Qui Quandoque. In Sediriunt Comprehendantur Sed Sufficit Eaquae Plae Rumque Accldunt Contineri", which connotes that neither laws not Acts of parliament can be so written as to include all actual or possible cases, it is sufficient if they provide for those things which frequently or Ordinarily happen.
17. In Luke v. England Revenue Commissioners, (1963) A.C. 557 at page 577 it was observed by Lord Reid as follows :
"To apply the words literally is to defeat the obvious intention of the legislature and to produce a wholly unreasonable result. To achieve the obvious intention and to produce a reasonable result, we must do some violence to the words."
To put it differently, the Statutes very often operate in time continum and are generally of indefinite duration. The constructions of them in this way has to be judged in view of their functions. It must be borne in mind that under changing circumstances the original Statute as enacted several years back, particularly in the present case the Guardians and Wards Act was enacted in 1890 more than a century ago, and since then circumstances as well as social conditions have undergone considerable change, consequently if the provisions of that Act have to be applied to the present circumstances, the language as employed by the legislature then, has to be made flexible. To this effect, we are of the view that the approach has to be made, what is known popularly by Mischief Rule. As pointed out in Heydon's case (3 Co. Rep. 7-a at page 7-b), where it was held that the Judge is always to make such constructions as shall suppress the mischief and advance the remedy, and to substle inventions and evasions for continuance of the mischief and 'Pro Privato Commodo' and to and force and life to the cure and remedy according to true intent of the makers of the Act Probono Publico.
18. In Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 SCC 67) at page 77 (per Hon'ble P.B. Sawant J.) their lordships of Supreme Court observed as follows :
"The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the Courts to step into fill the lacuna. When Courts perform this function undoubtedly they legislate judicially. But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society. Or to put it negatively, to prevent, the frustration of the legislation or perversion of the goals and values of the society. So long as the Courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to furnish the felt necessities of the time and do not refurnish them, their rule in this respect has to be welcomed."
(See the observations of Lord Denning in seeford Estate Ltd. v. Asherer, (1949) 2 K.B. 481 at page 498, & Smt. Pushpa Devi v. Milkhi Ram (A.I.R. 1990 SC 808).
19. The interpretations of a Statute has to be textual and contextual. In the present case the provisions of Sections 12(1), 47 and 48 of the Act may be read along with the provisions of Section 141 of the Code. Under Section 12(1) of the Act the legislature has very expressly provided that the Court shall have powers to make interlocutory orders. The expession 'Interlocutory order' has not been defined in the Act. Where a word has not been statutorily defined the dictionary meaning can be looked into. But the dictionary meaning deals with the meaning of a word in common parlance. Indoing so the Court has to be conscious that the word is used in different sences according to its context and the dictionary gives all the meaning of a word. In that event the Court would have to select particular meaning which would be relevant to the context. (See State of Orissa v. Titagarh Papers Mills, A.I.R. 1985 SC 1296).
20. In case meaning of a word is to be gathered from dictionary, the context in which word has been used, it to be kept in mind. It is better to quote Mr. Sa12:00 16.11.04muel Johnson, The great dictionary maker, English poet, Critic Essyaist as follows :
"The dictionaries are like watches, the worst is better than none, and the best cannot be expected to go quite true. Every honest lexicographer agree knowing that no matter how keenly he strives to make his book 'go true' he would inevitably loose the battle with what might be called 'linguistic indeterminacy'. Since indeterminacy will be the prime fact of his professional life, he will often be tempted' to deny and resent, like the grammarians of the 17th and 18th centuries, the redical instability of languagesl".
21. In Kerr v. Kennedy, (1942) 1 K.B. 409 it was held that the Dictionaries are for consultation in the absence of any judicial guidence or authority. It is accordingly better to have dictionary meaning of word "interlocutory".
22. In Black's Law Dictionary the word 'interlocutory' means the provisional, interim, not final, something intervening between the commencement and end.
23. In New Lexicom Webster's Dictonary of English Language, 'interlocutory' means pronouncements during legal procedure and not final.
24. In shorter Oxford English Dictionary, word 'interlocutory' means pronouncements during the course of action, not finally decisive.
25. In common parlance 'interlocutory' means not final, rather an order passed during apendency of the suit or proceedings is called an interlocutory order. In the present case grant of temporary injunction or the appointment of Receiver would be an interlocutory order. In view of the clear mandate given by the legislature under Section 12(1) of the Act, the Court shall have power to make an interlocutory order i.e. for the appointment of Receiver for protection of the person or property of the minor. It cannot therefore be said that no appointment of Receiver can be made under Section 12(1) of the Act. The learned Distt. Judge was therefore not correct inholding in his order dated 7-9-90 that in proceedings under Sections 7 & 8 of the Act the appointment of Receiver cannot be made without assigning any reasons for that inferance but subsequently learned Judge appears to have corrected his stand and in the order dated 15-10-90 he has hiself observed that the appointment of Receiver can be made in proceedings under Sections 7 & 8 of the Act. In this view of the matter the earlier order dated 7-9-90 can not be said to operate as resjudicate. The learned Judge was therefore not justified in rejecting the application for the appointment of Receiver under the assumption that earlier order would operate as resjudicate. On the basis of averments made in the application for appointment of Receiver particularly, when the properties and welfare of the minor was involved the appointment of Receiver was the proper; course to be adopted.
26. No doubt detailed procedure for appointment of Receiver or an appeal against the order rejecting application for appointment of Receiver has not been provided under the Act. It is to be noticed that the Act was passed more than 100 years ago and very often legislature fails to keep pace to the changing needs of the society. It cannot be expected that the legislature can provide for all contingencies to occur in furure. In the present case also even though under Section 12(1) legislature specifically provided that the Court can make interlocutory order, which obviously means that it shall be well within the jurisdiction of the Court to appoint Receiver as contemplated by Order 40 of the Code or to make an order pertaining the temporary injunction as envisaged by Order 39 Rules 1 & 2 of the Code.
27. Learned Counsel for the respondent was however, quite emphatic in his submissions that even assuming that application for appointment of Receiver has been rejected, no appeal shall lie against such order. He referred to the provisions of Section 47 of the Act where appellable orders have been provided and the order under Section 12(1) of the Act has not been mentioned.
28. It appears that these are the cases which justify the judicial legislation under compelling circumstances. In a case where actual interest of minor was involved, it is obligatory on the Courts to step in to fill up the Iecuna. In view of the observations made in Rattan Chand Hira Chand v. Askar Nawaz Jung (Supra) and Smt. Pushpa Devi v. Milkhi Ram (supra) and the observations of Lord Denning in Seeford Estate Ltd. v. Asherer (Supra), just with a view to promote goal of the society, particularly the object of the Indian Constitution to provide social justice, it becomes imperative or negatively to prevent the frastration of the legislation, appellate power has to be assumed even though specifically under Section 47 of the Act Section 12 has not been mentioned. Meaning there by any order passed under Section 12 would not be appellable. But in such matters the provisions of Section 141 of the Code would apply.
29. The matter may be viewed from another perspective, in as much as the provisions of Section 147 of the Act may be read along with Section 141 of the Code. There is no denying the fact that the proceedings under Sections 7 and 7 or Section 12 of the Act are civil proceedings. In the matters of civil proceedings in view of Section 141, procedure provided in the Code in regard to the suits shall be followed in all proceedings in any Court of civil jurisdiction Matters pertaining to the appointment or Removal of the Guardian, or the matters pertaining to interlocutory order by the Court dealing with the welfare of the minor are certainly proceedings of civil jurisdiction and in such matters provisions of the Code, including Order 40 for the appointment of Receiver would be applicable. The Court therefore, certainly has power by reading Section 12 and 47 of the Act along with Section 141 of the Code, to pass an order for appointment of Receiver. As Section 141 applies to the proceedings under the Act consequently inescapable conclusion is that the provisions of Order 43 of the Code would also be applicable hence an order rejecting application for appointment of Receiver would certainly be appellable. We are therefore of the considered opinion that the present First Appeal From Order rejecting the application for appointment of Receiver was appellable under Order 43 Rule 1 (s) of the Code.
30. We are constrained to observe that the provisions of the Act are not exhaustive, rather it is deficient consequently just with a view to do complete justice between the parties resort has to be had to the provisions of Section 141 of the Code. In such matters the Legislature or the Parliament must step in.
31. Reverting to the cases relied upon the learned Counsel for the parties, we consider first the case Daman Singh Prabhu Dayal v. Mt. Maktul Kaur (A.I. R. 1955 Punjab 137) relied upon by the learned Counsel for the respondent. That was a case on entirely different facts in as much as in that case the person in possession denied the claim and title of the minor hence it was observed that the parties may be directed to seek their remedies in accordance with the law. In the instant case father of the minor till his death was in possession of the properties of the firm and other properties as a partner, hence that case is of no assistance.
32. In Jagannath Vasudev Pundit Maharaj v. H.H. The Maharaj of Kolhapur and Ors. (A.I.R. 1921 Bombay 463) it has been held that the word 'proceedings' used under Section 141 cannotes very comprehensive sense and includes matters in the nature of suits pertaining to guardianship and probate etc. in the present case as it was a proceeding under the Guardians and Wards Act pertaining to the custody of person and property of a minor, hence provisions of Sectton 141 of the Code would apply.
33. In Mt. Chandrawati v. Jagan Nath Singh Ram Lal and Other (A.I.R. 1925 Lahore 489) it has been held that the Judge before whom an application for the appointment or removal of a guardian is pending, has power to appoint a receiver ; but that order is to be made under Code of Civil Procedure. It has also been held that such order passed was appellable under Order 43 Rule 1 (s) of the Code.
34. In Godoobai v. Janabai (A.I.R. 1929 Nagpur 119) (Supra) it was held that the appointment of receiver can be made in proceedings under Section 12 of the Act and the order passed therein was appellable under Order 43 Rule I (s) of the Code.
35. In Deokishen and Ors. v. Asaram (A.I.R. 1933 Nagpur 62) it has been held that the Guardians and Wards Act is not exhaustive or. self contained and that so far as it is deficient in procedure it has to be supplemented by the Civil Procedure Code because Section 141 of the Civil Procedure Code expressly permits such a course.
36. In view of the observations mentioned above, application for appointment of receiver can be made under Section 12 of the Act and can be decided on merits, in view of order 40 of the Code. We are, accordingly of the considered opinion, that the wide sweap of the language used by the Legislature under Section 12 of the Act empowers the Judge deciding matters under the Act to decide application for appointment of receiver on merits and the application for appointment of receiver can be made under Section 12 of the Act. Learned Judge was not justified in rejecting the application without any reasons just by saying that such application for appointment of receiver was not maintainable under Section 12 of the Act. On the subsequent application learned Judge himself held that application for appointment of receiver can be made under Section 12 of the Act. The second application for appointment of Receiver was not barred by resjudicata.
37. Both the learned Counsel for the parties advanced arguments on merits. We have considered facts and circumstances of the case. As the Interest of minor in the property of firm and his welfare is involved and there are four partners carrying on business, unless receiver is appointed, interest of minor cannot be safeguarded, The receiver shall have power to maintain the accounts of income and expenditure of the firm and shall furnish the accounts before the Court quarterly. It shall be open for the parties including guardian of minor to raise objections if any against the same.
38. So for as maintenance is concerned it appears that the minor is not getting sufficient amount for maintenance. Under the circumstances of the case it appears just and proper that Distt. Judge may be directed to pass in order for payment of maintenance to the minor keeping in view status of the parties.
39. In view of the premises aforesaid the appeal and Revision both succeed and are allowed. The impugned judgements and order dated 15-10-1990 and 7-9-1990 are set aside. Learned Distt. Judge is directed to pass an order for appointment of receiver and for payment of sufficient amount for maintenance keeping in view status of the parties, within a period of 6 weeks from the date a certified copy of this order is produced before him. There shall be however, no order as to costs.