Karnataka High Court
Mahadev Jyoti Umrani vs Smt. Sumitra on 8 January, 2003
Equivalent citations: 2003(2)KARLJ139, 2003 AIR - KANT. H. C. R. 515, (2003) 2 KANT LJ 139, (2003) 1 HINDULR 339, (2003) 2 ICC 464, (2003) 2 CIVLJ 748, (2003) 2 KCCR 909
Author: S.B. Majage
Bench: S.B. Majage
JUDGMENT S.B. Majage, J.
1. In this appeal, a short but an important question namely, to which Court appeal lies against an order passed under Section 13 of the Hindu Marriage Act, arises for consideration.
2. The facts, giving rise to the said point, are: The appellant herein presented a petition under Section 13(1), (1-a) and (1-b) of the Hindu Marriage Act (hereinafter referred as 'Act') seeking a decree of divorce in the Court; of Civil Judge (Senior Division) at Chikkodi in M.C. No. 61 of 1993, but the same came to be dismissed on 31-7-2000, Aggrieved by it, he filed appeal bearing M.A. No. . . . . of 2000 before the Court of Principal District Judge at Belgaum, who, by his order dated 11-1-2001 held that said appeal is not maintainable before that Court and accordingly, returned the appeal papers for presentation before proper Court. Hence, the appellant approached this Court by filing present appeal,
3. The respondent, though served with notice of the appeal, has chosen to remain absent and thus, she is unrepresented. In the circumstances, heard the learned Counsel for the appellant only who, placing reliance on the decision in Indraj v. Smt. Shanti and Ors., and a decision of this Court in the case of Mallappa v. Mallava, AIR 1960 Mys. 292 submitted that District Judge has jurisdiction as First Appellate Authority. Perused the record carefully.
4. The point for consideration is:
"To which Court, appeal lies under Section 28 of the Hindu Marriage Act?"
5. Section 28(1) of the Act provides that decrees made in any proceeding under that Act shall be appealable as decrees of the Court made in the exercise of its original civil jurisdiction and such appeals lie to the Court, to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction. Thus, it does not specifically say whether appeals lie to the District Ju.dge or High Court, but says that appeals lie to the Courts, to which appeals ordinarily lie. So, it becomes necessary to see the Court, where proceedings under the Act are initiated so as to know to which Court appeals lie from a decree passed by such Court.
6. As per Section 19 of the Act, every petition under that Act shall be presented to the District Court. "District Court" is defined in Section 3(b) of the Act. According to it, "District Court means 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 within that Act". In view of specific provision contained in Section 19 of the Act, petitions under that Act have to be filed before the District Court. However, in view of the Notification No. LAW 36 LCL 71, dated 2-11-1971 issued by the State Government under Section 3(b) of the said Act, the powers of District Court are being exercised by the Court of Civil Judges and not by the District Court presided by District Judges.
7. In the case of Mallappa, supra, relied on for the appellant, it is categorically held that an appeal under Section 28 lies to the Court of District Judge and not to the High Court. However, the learned District Judge, though referred said decision, placing reliance on the decision in the case of Parashuram. Rao Anantha Rao Pise v. Smt. Pratibha Parashuram Rao Pise, 1974(1) Kar. L.J. 265 held that the appeal is not maintainable before him on the ground that appeal lies to this Court (High Court). It is this controversy, which is to be resolved now.
8. Before going into the said two Division Bench decisions taking quite contradictory view against each other, it is necessary to refer relevant provision of Karnataka Civil Courts Act, which deals with jurisdiction and powers of various Civil Courts in Karnataka. As per Section 3 of said Act, there shall be three classes of Civil Courts subordinate to the High Court, namely, the District Court, the Court of Civil Judge and Munsiff Court. However, in view of the amendment made by Karnataka Act No. 16 of 1996, the words "Civil Judge" have to be read as Civil Judge (Senior Division) whereas, the word "Munsiff" has to be read as Civil Judge (Junior Division) and similarly, the words "Court of Civil Judge" and "Court of Munsiff" have to be read as "Court of Civil Judge (Senior Division)" and "Court of Civil Judge (Junior Division)" respectively. As per Section 19 of the said Act, appeals from Civil Judge (Senior Division) in original suits and proceedings of a civil nature shall, when such appeals are allowed by law, lie (i) to the District Court, when the amount and value of the subject-matter of the original suit or proceedings is less than one lakh rupees; (ii) to the High Court "in other cases". So, it is the amount or value of subject-matter of the original suit or proceeding, which determines the forum of appeal from a decree passed by a Court of Civil Judge (Senior Division).
9. In the case on hand, the appellant had valued the proceedings at Rs. 100/- for the purpose of Court fees and jurisdiction under Section 49 of the Karnataka Court Fees and Suits Valuation Act, 1958. So, if that is taken into consideration, the appeal in the present matter lies to the District Court and not to High Court as the value of the subject-matter of the proceedings shown is less than Rs. 1 lakh.
10. However, the controversy does not end here itself. It is because in the case of R.P. Muniswamappa v. Eramma, 1967(2) Mys. L.J. 44 a learned Single Judge of this Court has held that as the proceedings for the relief of judicial separation under Section 10 of the Act cannot be valued, the test prescribed under Section 19(1) of the Civil Courts Act cannot be applied to such a case and therefore, it would come in the category of cases coming under Sub-clause (2) i.e., "in other cases" and if this is so, the appeal would lie to the High Court. The said decision has been relied on by another learned Single Judge of this Court in the case of Sannakari-
yappa v. Lakshmakka, 1967(2) Mys. L.J. 629 . In fact, in the case of Paras Ram v. Janki Bai, where the subject-matter of the proceedings had not been valued, a Full Bench of Allahabad High Court also took the view taken by this Court in the case of Muniswamappa, supra and in the case of Sannakariyappa, supra, as well. However, it is not clear from the said two decisions of this Court as to whether the proceedings therein had been valued or not. Hence, the view taken by this Court in the said two decisions cannot have support from the said Full Bench decision of Allahabad High Court.
11. At this juncture, it may be noted that in the case of Muniswamappa, supra, the learned Single Judge has distinguished the decision in the case of Mallappa, supra, on the ground that though the proceedings arose under the Hindu Marriage Act, the forum of appeal was governed by the Bombay Civil Courts Act, under which the District Court was the Court of appeal from all decrees and orders passed by subordinate Courts from which an appeal lies under any law for the time being in force and as such observed that decision in the case of Mallappa, supra, has no application for appeals provided under Mysore.
12. It is true that under Section 8 of the Bombay Civil Courts Act, an appeal lies to the District Court only, but not in all cases (though observed so by the learned Single Judge) since therein also, it is provided that appeal lies to District Court except as provided under Sections 16, 17 and 26 of that Act.
13. Section 16 of said Act says that, where the Assistant Sessions Judge passes a decree or order in the cases specified therein and are appealable, the appeal shall lie to the District Judge when valuation does not exceed or, to the High Court according to the amount or value of the subject-matter when valuation exceeds Rs. 10,000/-. However, Section 17 refers to appellate jurisdiction of Additional District Judges and as such, not relevant in the present matter. Section 26 provides that in all suits decided by a Civil Judge of which the amount or value of the subject-matter exceeds Rs. 10,000/ -, appeal from his decision shall be directed to the High Court. So, a combined reading of Sections 8, 16 and 26 of the Bombay Civil Courts Act shows that the valuation of suit or proceedings, as the case may be, decided by Assistant Judge or Civil Judge determines the forum of appeal.
14. Now reference can be had to Section 19 of the Karnataka Civil Courts Act, which is as under.-
"19. Appeals from Civil Judge.--Appeals from the decrees and orders passed by a Civil Judge in original suits and proceedings of a civil nature, shall, when such appeals are allowed by law, lie.-
(1) to the District Court, when the amount or value of the subject-
matter of the original suit or proceeding is less than one lakh rupees;
(2) to the High Court, in other cases".
So, except the difference in the amount/valuation, virtually there is no such difference in the Karnataka Civil Courts Act and the Bombay Civil Courts Act to draw a distinction between them regarding forum of appeal, as drawn by learned Single Judge in the case of Muniswamappa, supra.
15. It will be appropriate to note now that in the case of Mallappa, supra, a Division Bench of this Court has observed as under;
"The definition applicable is "in any other area, the Principal Civil Court of original jurisdiction". Then follows the inclusion clause which determines the other Civil Courts as having jurisdiction. The Court of the Civil Judge, Senior Division, comes within the purview of the latter clause. A cursory reading of this definition may give an impression that any other Civil Court so specified is also a District Court. But a careful scrutiny will reveal that such a construction is erroneous.
The Civil Court that may be specified cannot be equated to the Principal Civil Court of original jurisdiction. The latter is a category by itself. It is the Principal Court as distinguished from a subordinate Court. Just because the State Government specifies that certain subordinate Civil Courts may also exercise jurisdiction in respect of the matters arising under the Hindu Marriage Act by no stretch of imagination could we designate them as Principal Civil Courts of original jurisdiction".
(emphasis supplied) In fact, same view has been taken by Allahabad High Court in the case of Dal Chand Singh v. Swaran Pratap, also and further reiterated in another Division Bench decision of that Court in the case of Chandra Swaroop Sinha. v. Smt. Manoram~a Sinha,
16. However, neither in the case of Muniswamappa, supra, nor in the case of Sannakariyappa, supra, the said point considered by the Division Bench in the case of Mallappa, supra, was considered. Further, the decision in the case of Mallappa, supra, being an earlier decision, that too, of a Division Bench has to be preferred to the two later decisions rendered by learned Single Judges, more so, when the point dealt with by the Division Bench was not considered in the later decisions.
17. Of course, there is a later decision of another Division Bench of this Court in the case of Parashuram Rao Anantha Rao Pise, supra, taking a contrary view to that of the case of Mallappa, supra. However, it is pertinent to note that the said earlier Division Bench decision in the case of Mallappa, supra, was not at all considered by the later Division Bench in the case of Parashuram Rao Anantha Rao Pise. Not only that, in the case of Parashuram Rao Anantha Rao Pise, supra the Division Bench was dealing with the point as to whether or not an appeal lies against an interlocutory order passed under the Act and if so, to which Court. In that context and in the absence of specific provision specifying the Court to which appeal lies under Section 28 of the Hindu Marriage Act, in the case of Parashuram Rao Pise, supra, the Division Bench has observed as under.-
"There is no provision in the Act which indicates the forum of appeal. On a fair construction of the above section, we are of opinion that Section 28 expressly confers a right of appeal on a litigant from every order or a decree passed under the Act. The words 'may be appealed from' confer the right of appeal and the words 'under any law for the time being in force' refer to the forum before which an appeal could be filed against such decree or order and the procedure to be followed in filing such appeal. Such forum in the instant case is determined by the provisions of the Mysore Civil Courts Act. Under Section 19 of the Act, the Court which decides cases in the first instance under the Act is the District Court as defined under Section 3(b) of the Act and an appeal from a decree or order of the District Court would lie to the High Court under the Mysore Civil Courts Act. Even when any other Civil Court is conferred the jurisdiction of deciding cases under the Act under a notification issued by the State Government for purposes of the Act it must be construed as exercising the powers of a District Court. Hence, an appeal would lie from an order of the Civil Judge exercising jurisdiction under the Act, to the High Court. . .".
18. The said ruling is against the earlier ruling in the case of Mallappa, supra, wherein while dealing with the sole point relating to the forum of appeal under Section 28 of the Act, after making an elaborate discussion, held that an appeal lies to the District Judge, even though Civil Judges are authorised to exercise the powers of District Court to pass an order under the Act. It is also specifically held therein that just because the State Government specified certain subordinate Civil Courts to exercise jurisdiction in respect of the matters arising under the Act, by no stretch of imagination, such Civil Courts can be designated/termed as Principal Civil Courts of original jurisdiction nor they can be equated to the Principal Civil Courts of original jurisdiction since the latter is a category by itself and Principal Civil Court as distinguished from a subordinate Court.
19. Further, it may not be out of place to note that though, in the year 1976, there was amendment to Section 28 of the Act, still the position was not changed/altered by it. If really the Legislature intended that the appeals shall lie to the High Court only, that would have been provided so in the said provision when amendment was brought to it in the year 1976. That was not done. In this context, it~will be useful to refer following observations made by His Lordship Sadasivayya, J. (as he then was) in the case of Mallappa, supra :
"The language of Section 28 of the Act does not, in any way, support an argument to the effect that appeals from such decrees and orders would lie only to the High Court. If it had been the intention of the Legislature that the High Court alone should be the forum of appeal from all decrees and orders made in proceedings under the Act, it would have been so clearly stated in Section 28. . . .".
It is also observed in the said decision that notification cannot have the effect of converting Civil Court into a District Court within the meaning of Section 7 of the Bombay Civil Courts Act. So, the fact that a Civil Court is the sole forum under Section 3(b) of the Act can be of no relevance for the purposes of Section 28, when there is no mention of District Court in Section 28 of the Act. Consequently, the view taken by the Madras and Bombay High Courts in the decisions of Valliammal Ammal v. Periaswami Udayar, and Gangadhar Rakhamaji v. Manjulal Gangadhar, AIR 1960 Bom. 42 was followed by this Court in the said case of Mallappa, supra. In fact, this is the consistent view of Allahabad High Court also.
20. Lastly, it may not be out of place to note that nowhere "District Judge" has been referred to or defined in the Act. However, "District Court" has been referred as a Court in which a petition under the Act requires to be presented and in fact, "District Court" has been defined in Section 3(b) of the Act, as noted already. As per the definition of the "District Court", "any Civil Court may be specified by the State Government, by notification in the Official Gazette, to have jurisdiction in respect of the matters dealt with in the Act and, under notification, referred to already, Civil Judges have been specified as Courts for entertaining petitions under the Act. So, in my opinion, in view of Section 19 of the Karnataka Civil Courts Act, when such a Civil Judge exercising jurisdiction as District Court as defined under the Act passes a decree and the valuation of the said subject-matter is less than Rs. 1 lakh, appeal lies to the District Judge and not to the High Court. Simply because a Civil Judge (Senior Division) exercises jurisdiction by virtue of such notification, he does not become a District Judge and as such, if an appeal lies to District Judge from such a decree passed by the Civil Judge under the Act, it cannot be said that an appeal before the District Judge is not competent because in such a case, it will not be an appeal from one District Judge to another District Judge. If the relevant provisions contained in the Karnataka Civil Courts Act are read with Section 96 of the CPC with the fact that in spite of amendment made in the year 1976, Section 28 of the Act does not specifically provide that an appeal lies to High Court, it can be held that, in such matters, the forum of appeal depends on the valuation of the proceedings and hot that appeal lies to this Court whatever may be the value of subject- matter shown for proceedings under the Act.
21. So, to my mind, the earlier Division Bench decision in the case of Mallappa, supra, lays down the correct law and not the later Division Bench decision in the case of Parasharam Rao Anantha Rao Pise, supra. Since in the later decision rendered in the case of Parasharam Rao Anantha Rao Pise, the earlier Division Bench decision in the case of Mallappa was not considered, it is "per incuriam", as held by the Supreme Court in the case of Punjab Land Development and Reclamation Corporation Limited, Chandigarh and Ors. v. Presiding Officer, Labour Court, Chandigarh and Ors., . Be that as it may, since there are two Division Bench decisions of this Court, taking contrary view against each other, the dispute requires to be resolved by a larger Bench. Not only that, since I respectfully disagree with the view taken by two learned Single Judges of this Court, the proper course is to refer the matter for decision by larger Bench. Thus, viewed from any angle, the question of law, namely, "whether forum of appeal provided under Section 28 of the Hindu Marriage Act depends on the valuation of the proceedings and the Karnataka Civil Courts Act or, irrespective of that, appeal lies to High Court only?", requires to be answered by larger Bench.
Accordingly, under Section 8(2) of the Karnataka High Court Act, 1961, referred the said question of law for decision by larger Bench. Hence, the office is directed to place the papers before the Hon'ble Chief Justice for appropriate orders.