Calcutta High Court (Appellete Side)
Shantidevi Ram vs Janardan Ram on 11 September, 2014
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
C.O. No. 1272 of 2010
Shantidevi Ram
-vs-
Janardan Ram
For the petitioner : Mr. Anjan Banerjee
For the Opposite Party : Mr. Achin Jana
Judgment on : 11.09.2014
HARISH TANDON, J.:
The Order No.27 dated January 13, 2010 passed by the learned District Judge, Howrah in Miscellaneous Case No. 98 of 2006 by which an application under Order 9 Rule 13 of the Code of Civil Procedure filed by the wife/petitioner was dismissed, is assailed in this revisional application.
The instant revisional application was directed to be served upon the opposite party and an interim order restraining the opposite party from contracting the marriage till 13 June, 2010 was passed. The said interim order was subsequently extended on 14.07.2010 until further order. On March 6, 2012, the revisional application appeared under the heading "contested application" when a preliminary objection was taken relating to the maintainability thereof.
According to the opposite party, the order impugned in this revisional application is appellable under Order 43 Rule 1 (d) of the said code.
The said preliminary objection was allowed by me on March 6, 2012 and it was held that the order impugned in this revisional application is appellable one and the instant revisional application was directed to be dismissed as not maintainable.
After passing the said order but before signing the same, a Division Bench judgment of this court in case of Sri Kumar Lahari vs. Sonali Lahari reported in 2006 (2) CLJ 188 was brought to my notice wherein the Division Bench held that if a proceeding is initiated under the provisions of the Hindu Marriage Act, 1955 then the appeal would lie in respect of those matters under Section 28 of the said Act and not otherwise.
The revisional application was, thereafter, listed on March 14, 2012 for rehearing.
The learned Advocate appearing for the petitioner submits that the Division Bench in case of Sri Kumar Lahari (supra) was poised with the similar question and answered in favour of the maintainability of the revisional application. He further submits that the decision of the Division Bench is binding upon the Single Bench which cannot take contrary view. By contending that the preamble of the Hindu Marriage Act ascribes as one to amend and codify the law relating to marriage amongst Hindus, the court should not look into any other law and placed reliance upon a judgment of the Supreme Court in case of Rohini Kumari vs. Narendra Singh reported in AIR 1972 SC 459. He strenuously submits that Section 21 of the Hindu Marriage Act, 1955 provides the applicability of the Code of Civil Procedure, as far as practicable, which does not mean that the substantive rights of the parties shall also be regulated by the Code of Civil Procedure and placed reliance upon a judgment of the Supreme Court in case of Nawab Usmanali Khan vs. Sagar Mal reported in AIR 1965 SC 1798. He further submits that if a right of appeal is provided under special statute then the other right of appeal is taken away by necessary implication as held by the Apex Court in case of Upadhyaya Hargovind Devshanker vs. Dhirendrasinh Virbhadrasinhji Solanki reported in AIR 1988 SC 915 and in case of Fuerst Day Lawson Ltd. vs. Jindal Exports Ltd. reported in AIR 2011 SC 2649. Lastly he contends that a decree, be it contested or ex parte, is appellable under Section 28 of the said Act and as such an order refusing to set aside the decree under Order 9 Rule 13 is not appeallable and placed reliance upon a judgment of the Single Bench of this court in case of Sujit Paul vs. Mousomi Paul reported in 2010 (2) CHN 497 (CAL).
The learned Advocate appearing for the opposite party submits that Section 21 of the Hindu Marriage Act postulates that the Code of Civil Procedure, as far as practicable, shall regulate the proceeding filed under the said Act. He further submits that the entire provisions of the Code of Civil Procedure is made applicable which cannot exclude Order 43 providing an appeal against the rejection of an application for setting aside ex parte decree.
Having considered the respective submissions, a piquant situation has arisen before this court as to whether an appeal would lie against an order rejecting an application under Order 9 Rule 13 of the Code or by virtue of provisions contained under Section 28 (1) of the Hindu Marriage Act, appeal under any other law is excluded by necessary implication.
The aforesaid question did not appeal initially unless the Division Bench judgment rendered in case of Sri Kumar Lahiri (supra) is brought to the notice of this court. In the said case, the proceeding was initiated under Section 25 of the Hindu Marriage Act. An application for injunction under Order 39 Rule 1 & 2 of the Code was taken out. The order, disposing the said application, was assailed in an appeal before the Division Bench wherein it was held that by virtue of Section 21 of the Act, it is only the procedural part of the Code of Civil Procedure which is made applicable and in view of a specific provision for appeal under Section 28, no appeal lies except those provided therein.
In view of the law enunciated by the Division Bench in case of Sri Kumar Lahiri (supra), the order delivered by me on March 6, 2012 without noticing the same ex-facie appears to me to be contrary to the said judgment.
The Full Bench in case of Vinod Kumar Toppo vs. State of West Bengal reported in 2011 (3) CHN 299 (Cal) was considering the reference as to whether it is open to the judge, in facts and circumstances upon putting the parties on notice and after recording the reasons, to correct an inadvertent mistakes which if realized that he had committed while dictating an order in open court by recalling the order so dictated before it is signed and thereafter to hear the parties afresh, held that the court has unbrindled power to alter or modify a judgment though delivered but not signed. However, a rider is put that such power should be exercised judicially, sparingly and for adequate reasons.
Applying the aforesaid principles, I put the parties on notice and invited the learned Advocates appearing for the respective parties to address the court in the light of the ratio laid down in Sri Kumar Lahiri's judgment.
Admittedly the parties are Hindus by religion and the marriage was performed according to Hindu Rituals & Rites. Therefore, there is no difficulty in saying that the incidents of marriage are governed by the provisions of the Hindu Marriage Act, 1955. Section 13 of the said Act envisaged the ground on which a decree for divorce can be passed on a petition presented by either of the spouse. Section 19 provides the forum competent to grant the decree for divorce whereas Section 20 deals with the aspect relating to the necessary averments to be incorporated for the claim of relief.
By inserting Section 21, the legislature mandates that all the proceedings under the said Act shall be regulated, as far as may be, by the Code of Civil Procedure 1908, subject to the other provisions contained in the said Act or the Rules as the High Court may make in this behalf. Section 25 of the said Act relates to a permanent alimony and maintenance which the court exercising jurisdiction under the said Act made at the time of passing any decree or any time subsequent thereto, on an application made by either of the spouse whereas Section 26 deals with the custody of children.
Section 28 of the said Act which really weighed much to the Division Bench in case of Sri Kumar Lahiri (supra) creates not only a right of an appeal against all decrees made by the court in any proceeding under the said Act, but also against the final orders made by the court under Section 25 & 26 of the said Act. However, there is an embargo created in the said section relating to an appeal against the costs. The Division Bench appears to have been swayed by the aforesaid provision contained under Section 28 which contemplates the appeal against the final order passed under Section 25 and 26 and held that no other order are appellable under the said provision. The Division Bench further held that the tenet of the language employed under Section 21 of the said Act which speaks of the applicability of the procedural part of the Code of Civil Procedure to apply to a proceeding under the Hindu Marriage Act excludes the other substantive portion providing the provision for appeal except those which comes under Section 28 of the said Act. Therefore, the applicability of the procedural part of the Code of Civil Procedure is not in dispute but what is held by the division bench is that a substantive right to prefer an appeal under Order 43 Rule 1 (d) of the Code of Civil Procedure against the rejection of an Order 9 Rule 13 of the Code is not applicable.
In fact, the Co-ordinate Bench in case of Sujit Paul (supra) also held that by insertion of Section 21 of the said Act providing the applicability of Code of Civil Procedure, as far as may be, the provision of Order 9 of the Code is not excluded and applies to a matrimonial suit under the Hindu Marriage Act in the following words:
"19. Thus, relying upon the said Full Bench decision of this Hon'ble Court, this Court has no hesitation to hold that Order 9 Rule 13 of the Code of Civil Procedure can be resorted to for setting aside the ex parte divorce decree even though such decree is appellable under section 28 (1) of the Hindu Marriage Act, as the said provision regarding appeal does not even by necessary implication excludes the application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree which is also a remedy available to the defendant for avoiding such decree."
The point which is raised in the instant revisional application was neither argued nor considered by the Co-ordinate Bench in the said report. The point whether an appeal under Order 43 against the rejection of Order 9 Rule 13 of the Code is maintainable is settled by the Apex Court in case of Yallawwa vs. Shantavva reported in (1997) 11 SCC
159. Apart from other points, one of the point urged before the Apex Court in the said report, was whether the High Court was competent to entertain a revisional application without treating it as an appeal against an order refusing to set aside the ex parte decree passed under the Hindu Marriage Act, 1955. The Supreme Court held that the Order refusing to set aside the ex parte decree is clearly appellable under Order 43 Rule 1(d) of the Code of Civil Procedure in these words:
"5. We have carefully considered the aforesaid rival contentions. In order to appreciate the main grievance of the appellant against the impugned order of the High Court, it is necessary to note at the outset that the respondent was seeking to get the order of the trial court dismissing her application under Order IX Rule 13 CPC quashed by the High Court. It is true that she moved a revision application for that purpose but the order of the trial court refusing to set aside the ex parte decree was clearly appealable under Order XLIII Rule 1(d) CPC which provides that an appeal shall lie from the orders listed in the said provision and in clause (d) is mentioned an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte. It cannot be disputed that a decree granting divorce under Section 13(1)(i-b) whether ex parte or bipartite is a decree which is appealable under Section 28 of the Hindu Marriage Act, 1955. Consequently, the order of the trial court refusing to set aside such an ex parte decree and rejecting the application under Order IX Rule 13 CPC could have been validly made the subject-matter of an appeal under Order XLIII Rule 1(d). Therefore, the revisional application filed by the respondent before the High Court should be treated in substance as one by way of miscellaneous appeal. Once the High Court has appellate jurisdiction over the impugned order of the learned trial Judge, it is obvious that the High Court was fully competent to interfere with the order by reappreciating the facts of the case."
The Division Bench in Sri Kumar Lahiri's Case did not notice the judgment of the Supreme Court delivered in case of Yallawwa (supra) and as such any decision of the High Court which runs counter to the decision of the Supreme Court cannot be termed as a good law and losses efficacy as binding precedents. Article 141 of the Constitution of India makes the position clear in this regard.
Let me now consider the judgment cited by the petitioner in support of his contention that the revision lies against an order rejecting an application under Order 9 Rule 13 of the Code. In case of Nawab Usmanali Khan (supra), the Apex Court was considering a matter relating to an Indian Arbitration Act, 1940. A point arose whether a judgment and decree on award under the said Act can be regarded as the suit within the meaning of Section 86 (1) read with Section 87B of the Code of Civil Procedure which bars the suit against the Rule of Former Indian Estate without the consent of the Central Government. It has been held that a proceeding under Indian Arbitration Act, 1940 before the court does not come within the purview of Section 86 (1) read with Section 87B as Section 141 of the Code of Civil Procedure does not make the above provision applicable to the said proceeding.
In case of Rohini Kumari (supra), the Apex Court was considering the conflict between Section 10 (1) (a) of the Hindu Marriage Act, 1955 and Section 18 of the Hindu Adoption and Maintenance Act, 1956 which provides for maintenance for separate leaving from the husband. In the above perspective, it was held that unless in any other enactment containing the provision which abrogates any provisions of the Hindu Marriage Act or repeals it, the provision contained under the Other Act cannot be expressly said to be impliedly in applicable. It is further held that the provision contained under Section 18 of the Maintenance Act and Section 10 of the Hindu Marriage Act are distinct and one cannot be said to control the other. The Supreme Court in case of Upadhyaya Hargovind Devshanker (supra) was considering an election petition under the representation of People Act, 1951. The Supreme Court noticed the newly inserted Section 116 A which provides an appeal before the Supreme Court on any question from every order made by the High Court under Section 98 or Section 99. By insertion of Section 80A of the representation of Peoples' Act, the High Court was vested with the jurisdiction to try an election petition and such jurisdiction was to be exercised by a single judge of the High Court. Since the power of an appeal was provided to the Supreme Court in such perspective, it is held that an appeal under Clause 15 of the letters patent is impliedly excluded. In Fuerst Day Lawson Ltd. (supra), a point arose whether the provisions of Arbitration and Conciliation Act, 1966 exclude the jurisdiction of the High Court under the letters patent either expressly or impliedly. It is held that the provision contained under Section 39 of an Arbitration Act and Section 37 of the Arbitration and Conciliation Act, 1996 are self-contained code relating to arbitration and therefore, the provision relating to letters patent is expressly and/or impliedly excluded. The aforesaid judgment does not require details scrutiny as in all the case dealt in the aforesaid reports, there is a full mechanism provided for an appeal and the provision contained therein was an exhaustive one. Therefore, it cannot be said that those judgments are relevant for the present purposes.
In the instant case, the provisions of the Code of Civil Procedure are applicable, as far as practicable, and in view of the clear pronouncement made in case of Yallawwa (supra), the right to prefer an appeal under Order 43 Rule (1) (d) of the Code of Civil Procedure is not taken away. Thus I hold that the order rejecting an application under Order 9 Rule 13 of the Code of Civil Procedure is appellable and, therefore, revisional application is not maintainable.
The revisional application is therefore dismissed as not maintainable.
The petitioner is permitted to take back the certified copy of the impugned order upon production of the photocopy thereof. The Assistant Court Officer is directed to return the certified copy of the impugned order upon production of the photocopy thereof by the petitioner within 7 days from date.
However, there shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)