Bombay High Court
Romila Jaidev Shroff vs Jaidev Rajnikant Shroff on 5 May, 2000
Equivalent citations: AIR2000BOM356, 2000(4)BOMCR122, (2000)3BOMLR14, II(2000)DMC600, 2000(3)MHLJ468, AIR 2000 BOMBAY 356, 2000 A I H C 4117, (2002) 1 ALLMR 185 (BOM), 2002 (1) ALL MR 185, (2000) 2 DMC 600, (2000) 2 HINDULR 683, (2000) 3 MAH LJ 468, (2000) 2 MAHLR 400, (2001) 1 MARRILJ 409, (2001) MATLR 128, (2001) 1 RECCIVR 20, (2000) 4 CIVLJ 416, (2000) 4 BOM CR 122, 2000 (3) BOM LR 14, 2000 BOM LR 3 14
Bench: Ranjana Desai, V.C. Daga
ORDER N.J. Pandya, J.
1. This reference is made by the learned Single Judge of this Court in respect of Notice of Motion No. 3254 of 1999 in Suit No. 5885 of 1999. The said suit was filed by the plaintiff/wife against the defendant/ husband seeking maintenance and expenses for herself and her children. The aforesaid Notice of Motion is for interim maintenance. The suit is filed in this Court in its Ordinary Original Civil Jurisdiction.
2. An occasion arose for the learned Single Judge to make this Reference because on behalf of the defendant/husband, the plea of want of jurisdiction was taken. This plea was raised on the basis of section 7 of the Family Courts Act, 1984. It is an admitted position that so far as the suit for maintenance is concerned, it is covered by the provisions of the said Act and, therefore, the Court, as contemplated by the said Act, will be the one to hear the same.
3. Relying upon the Clause XII of the Letters Patent, according to the plaintiff, when the defendant is within the local limits of the Ordinary Original Civil Jurisdiction of this Court, the jurisdiction under Clause XII of the Letters Patent cannot be ousted because of the said Family Courts Act.
4. The plea with regard to the Family Court is raised on the basis of the provisions of section 2(e) along with section 8 of the said Act. Exclusion of jurisdiction of the Civil Court will also have to be considered. Section 2(e) reads as under:
"2(e) all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code."
Relevant portion of section 8 reads as under :
"8. Exclusion of jurisdiction and pending proceedings.---
(a) no District Court or any Subordinate Civil Court referred to in subsection (7) shall in relation to such area have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;"
5. Reference to District Court or any Subordinate Civil Court may in the aforesaid portion of the said section 8 will therefore have to be understood with reference to the Code of Civil Procedure. Section 2(4) of the Code reads as under:
"2(4) district means the local limits of the jurisdiction of a principal Civil Court of Original Jurisdiction (hereinafter called a "District Court") and includes the local limits of the ordinary original civil jurisdiction of a High Court."
6. The matter would have been very simple before the learned Single Judge on the basis of the aforesaid statutory material. He could have very easily rested the controversy. However, he was faced with the Division Bench of this Court taking a view that inspite of the aforesaid definition in the Code and the said provisions of section 7 of the Family Courts Act, the jurisdiction of this Court under Clause XII of the Letters Patent is not ousted. This judgment is directly under the Family Courts Act. Had there been only the judgment, the learned Single Judge was bound by it and would have followed the same.
7. However, he was facing a situation where the Supreme Court having interpreted the said definition as contained in the Code and after considering the same held that the High Court exercising its Ordinary Original Civil Jurisdiction will be a District Court. No doubt, this has been held with reference to the provisions of section 105 of the Trade and Merchandise Marks Act, 1958 read with section 2(e) of the said Trade and Merchandise Marks Act, 1958.
8. By virtue of section 2(e) of the Trade and Merchandise Marks Act, 1958, the expression "District Court" was given the same meaning as assigned to it in the Code of Civil Procedure. Thus, the learned Single Judge was faced with a situation that with reference to the aforesaid definition clause of Code while dealing with section 2(e) of the Trade and Merchandise Marks Act, the learned Judges of the Hon'ble Supreme Court had come to a conclusion that expression "District Court" would include a High Court exercising its jurisdiction on Original Side in respect of the civil matters.
9. This is with reference to the High Court of Mysore which for some time had Original Jurisdiction and later on lost it. As it did not have jurisdiction at the relevant time, its entertaining the suit was not acceptable to the Hon'ble Supreme Court. At the same time, it did hold that if the High Court in exercise of its Ordinary Original Civil Jurisdiction had entertained the suit, it would be a District Court for the purpose of the said Trade and Merchandise Marks Act, 1958.
10. The learned Judges of the Division Bench of this Court, who had held in the aforesaid manner with reference to sections 7 and 8 of the Family Courts Act read with section 2(e) thereof, did not have before them the said Supreme Court Judgment in the case of Raja Soap Factory and others v. S. P. Shantharaj and others, , when the decision in the case of Kanak Vinod Mehta v. Vinod Dulerai Mehta, came to be given.
11. The learned Single Judge therefore felt that if the Supreme Court Judgment on the aforesaid line has not been brought to the notice of the learned Judges of the Division Bench, the matter be referred to a larger Bench so that the correct position of law can be extended. We have therefore to consider the matter with reference to the said Raja Soap Factory case (supra) as also other judgments that were cited at the bar on both the sides.
12. Ordinarily the definition of the Code of Civil Procedure contained in section 2(4) having been interpreted by the Hon'ble Supreme Court, the controversy should not continue any further. However, when the judgment of the Division Bench of this Court is under the Family Court itself, while the Supreme Court judgment is not, and when in respect of the said Family Court which has Courts under an All India Statute, it had the judgment of the Full Bench of Madras High Court and when that judgment was considered by the Division Bench of this Court which has, in our opinion, very correctly expressed the sentiment that the judgment of the High Court of this Country in relation to an All India Statute should ordinarily be respected and followed. We therefore now proceed to consider the question before us whether the expression 'District Court' used in section 8 of the Family Courts Act would include the High Court exercising its Original Civil Jurisdiction under Clause 12 of the Charter.
13. The charter was granted when the present Code was not in force. Originally, the Charter of this Court was confined to the island of Bombay leaving remaining part of the State to be dealt with under the Code of Civil Procedure as may be in force from time to time. That will also include provisions of Civil Courts Act, 1869. Till the charter was amended and jurisdiction of this Court was extended, part of that territory which is not covered by Ordinary Original Civil Jurisdiction of this Court was within the jurisdiction of Thane District Court. Because of that extension, the municipal limit of the City of Bombay has become the local limits of Original Civil Jurisdiction of this Court. Section 2(4) of the Code of Civil Procedure, no doubt, refers to a District Court and with reference to the local limits of the jurisdiction of a Principal Civil Court of Original Jurisdiction, the expression is explained and meaning is assigned with a inclusive clause as to the local limits of the Ordinary Original Civil Jurisdiction of a High Court. The said local limits of the Ordinary Original Civil Jurisdiction of a High Court will therefore be a District within the meaning of Code of Civil Procedure about which there is no dispute at the bar.
14. Whether it comes to include the expression 'District Court' or not is the crux of the dispute. If that definition is closely read, it appears that what has been defined is not only the concept of a District but what is the area of operation of the Principal Civil Court of Original Jurisdiction of that District.
In parenthesis, there is also an indication to the said Principal Civil Court of the Original Jurisdiction herein called a 'District Court'. Once this explanation in the parenthesis is understood in its proper perspective, the entire area over which the Principal Civil Court of Original Jurisdiction of a District exercises its jurisdiction is the District Court for that District. Understood in that light section 2(4) of the Code of Civil Procedure can well be taken to define concept of a District Court itself. Apart from the jurisdiction in a Court either vested or divested by operation of a Statute, once a jurisdiction given to the Court, it has to be with reference to a territory and most of the time it also has to hold a reference to a pecuniary limits. There may be a Court with unlimited pecuniary jurisdiction but its territorial jurisdiction will always be confined to the clearly demarcated distinct identity which will have to be referred to as a District. Understood in that light, the aforesaid sub-section (4) of section 2 of the Code of Civil Procedure clearly indicates that the Principal Civil Court of Original Jurisdiction is to be confined to the area of operation to District for which it is a Court viz. District Court. If it is not understood in that light, the words appearing in the parenthesis would become redundant.
15. The provisions of Civil Courts Act, 1869 pre-dates the Code of Civil Procedure, 1908. The said Civil Courts Act which had to be enacted provides for different categories of Civil Courts which are made subordinate to each other. A concept well known to the Code of Civil Procedure under section 3 thereof reads as under:
"3. Subordination of Courts.---For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court."
16. The Concept of Small Cause Court is drawn from their respective Small Cause Courts Act, Presidency and Provincial. But for the local enactment like the Civil Courts Act, for all practical purposes, in any District, as understood under the Code of Civil Procedure, there will be only one Court viz. Principal Civil Court of Original Jurisdiction i.e. a District Court. As per the aforesaid section 3, no doubt, District Court is subordinate to the High Court. This provision of section 3 had prompted the learned Judges of the Division Bench of this Court in Kanak Mehta's case, which is one of the reasons, to hold that the High Court cannot be considered as District Court for the purpose of Family Courts Act. The Family Court does not contemplate the High Court to be considered as such. It refers to the District Court or any subordinate Civil Court, both, in section 7 as well as section 8. Sections 7 and 8 show that the jurisdiction of the District Court as well as subordinate Court is ousted in respect of the matters which can be entertained by the Family Court. If therefore in exercise of its Ordinary Original Civil Jurisdiction within the local limits, this High Court is taking up those very matters which are covered by the Family Court Cases, and if it is acting as a District Court, it certainty would lose the jurisdiction. It is nobody's case that it is a subordinate Court. All that has been urged on behalf of the defendant is that whenever it exercises Ordinary Original Civil Jurisdiction as per Clause 12 for the purposes of Code of Civil Procedure, it is a District Court for the District of Mumbai which is the local limits. If that be so, it would lose the jurisdiction.
17. Section 3 of the Code of Civil Procedure puts the High Court on the top and District Courts and Subordinate Courts under it. It is the Three Tier System. However, section 3 does not deal with Ordinary Original Civil Jurisdiction of the High Court in any manner whatsoever. In fact, the Code itself cannot be said to be dealing with it in any manner except recognizing its Original Civil Jurisdiction in section 120 by declaring that the provisions of sections 16, 17 and 20 shall not apply to the High Court when it exercises its Original Civil Jurisdiction. It is obvious that this very section will apply to the same High Court vested with Original Civil Jurisdiction if it is operating on its Original Side. When Three Tier System is envisaged by section 3 of the Code of Civil Procedure, obviously, reference in that section is to the High Court on its Appellate Side and not its Original Side. Once a reference to the High Court in section 3 of the Code of Civil Procedure is understood in this light, the said impediment felt by the learned Judges of the Division Bench of this Court on account of section 3 of the Code where the District Court is specifically declared to be subordinate to the High Court should not survive.
18. On the contrary, with reference to section 2(4) of the Code of Civil Procedure, for all practical purposes, save and except section 120 of the Code of Civil Procedure, the High Court which exercises its Original Civil Jurisdiction will be in the same position as the District Court in relation to a District viz. Principal Civil Court of Original Jurisdiction.
19. That exactly is the finding given by the Hon'ble Supreme Court in Raja Soap Factory case. This has elaborately been brought out by the said learned Single Judge when he made this reference. However, on behalf of the Original plaintiff, it was urged that the said Raja Soap Factory case will be confined to the provisions of Trade and Merchandise Marks Act, 1958 because it is with reference to the section 2(e) thereof which says that meaning assigned to the expression in the Code of Civil Procedure to the word 'District Court' will be the same for the purposes of Trade and Merchandise Marks Act, 1958. As against that in the Family Courts Act, a reference in section 2(e) says that the words and expressions used but not defined in the Act and defined in the Code of Civil Procedure, 1908 shall have the meanings respectively assigned to them in that Code.
20. Taking this submission into consideration we will now turn to the question whether the aforesaid sub-section (4) of section 2 of the Code of Civil Procedure, 1908 can be said to be meaning assigned to the expression alone or can be treated definition of the words 'District Court'. Needless to say, the learned Judges of the Division Bench of this Court have indicated their opinion to the effect that the words 'District Court' are not defined by sub-section (4) of section 2 of the Code of Civil Procedure, 1908. They further say that it merely defines District. The learned Judges of the Division Bench therefore to say that sub-section (4) of section 2 of the Code is a defining clause. If it is a definition, let us see whether it is confined only to the word district or also it defines the expression District Court. For the reasons stated above, we have no hesitation in holding that it defines 'District Court'. Once it is held to be the definition, obviously, this objection raised on behalf of the original plaintiff cannot survive.
21. We are mindful of the fact that the Full Bench of Madras High Court had held that the Original Jurisdiction of the High Court is not ousted in respect of matters that fall under the explanation to section 7 read with section 8 of the Family Courts Act. Incidentally, it may be mentioned that the learned Judges of the Full Bench of the Madras High Court have also placed reliance on a decision of the learned Single Judge of that Court who had dealt with under the provisions of the Trade and Merchandise Marks Act. The aforesaid line of argument is found acceptable to the Hon'ble Supreme Court but did not find favour with the learned Single Judge. This is to be found in the course of discussion of that judgment which would be referred to hereinafter. The decision of the Full Bench of Madras High Court is in the case of Mary Thomas v. Dr. K. E. Thomas, . The aforesaid learned Single Judge's Judgment on the Trade and Merchandise Marks Act is referred to in Paragraph 12 and in the last portion of paragraph 11 which is at page 104 of the said Report.
22. However, in all these matters, striking feature is that the controversy is viewed with reference to section 2(4) of the Code of Civil Procedure. Everyone accepts the fact that the Original Civil Jurisdiction of the High Court is confined to a limit and, therefore, that would be a District Court for the purpose of High Court in exercise of that jurisdiction. However, at the same time with equal striking uniformity, everywhere the learned Judges balk at an idea of treating the High Court as a District Court for all purposes of the Civil Procedure Code. In our opinion, this hesitation is uncalled for. The submission is not and could not be that once the High Court is understood to be a District Court, it would become a District Court for all purposes of the Code. It just cannot be. Apart from the Constitutional Scheme, even during pre-constitution days, the High Court is at the Apex and predominates Three Tier System operating in any States of the Country during Pre-independent Era and Post-independent Era. After onset of constitution, it is clearly enshrined in it as such. There can therefore be no doubt that the High Court is the Higher Court. It can never be a District Court.
23. At the same time when of the several High Courts of this Country some of them happen to have Original Civil Jurisdiction by very compulsion of logic as and when it exercises its jurisdiction, the High Court has to be a District Court for that limited purpose and if as a result of its inclusion in that concept if the High Court on its Original Side lose its jurisdiction, it does. It needs to be clarified that the loss of the jurisdiction will be confined only to that part of the Original Civil Jurisdiction as, like in the instant case, is relating to the matters to be dealt with under the Family Courts Act. In the course of discussion before the learned Judges of the Full Bench of Madras High Court, anomalous situation was brought out with regard to the Copy Right Act as dealt with by the learned Single Judge of the Madras High Court and the matters having been carried before the Division Bench of that Court-The question was whether the High Court will have jurisdiction to try the suit under the Copyright Act and hold it to be District Court for that purpose. This is a case , The Daily Calendar Sup-
plying Bureau, Sivakasi v. The United Concern. The anomalous position noted was that if it is not regarded to District Court, the appeal provided for under the provisions of that Act would not be available to the party if the suit is filed within the City of Madras. Expressly referring to this anomalous position, it was held that the High Court is the District Court for that purpose. At the same time, the learned Judges of the Full Bench for this very reason discarded the judgment to be of any relevance (as per paragraph 18 at page 107 of the report). Again there is a reference in the said judgment in paragraph 19 to the Trade and Merchandise Marks Act, 1958.
24. With utmost respect of the learned Judges of the Full Bench of Madras High Court, if one turns to the provisions of the Family Courts Act and anomalous position, that will arise under the provisions of Family Courts Act, as submitted by the defendant, it will not be possible to hold that inspite of the said provisions of the Family Courts Act, the High Court retains its Ordinary Original Civil Jurisdiction.
25. Sections 7 and 8 are preceded by section 6 providing for counsellors, officers and other employees of Family Courts. It is followed by the provisions of duty cast of Family Court to make efforts for settlement as well as for providing enough latitude to the Family Court to devise its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other, subject to this rider, the provisions of the Code of Civil Procedure and the Code of Criminal Procedure both, including Rules framed thereunder are made applicable to the Family Court. Section 13 provides for right to legal representation; section 14 provides for application of Indian Evidence Act, 1872 which has virtually been done away with; under section 15, an option is left to the Family Court to record oral evidence or not; and section 16 provides for Evidence of formal character on affidavit. In this background, if one turns to section 5 subject to the rules framed thereunder, the Family Court is free to take assistance of and allow the association of institutions or organization engaged in social welfare or the persons professionally engaged in promoting the welfare of the family and so on.
26. In this background, one has to turn to the provisions of section 20 where the Act shall have overriding effect, which reads as under :
"20. Act to have overriding effect.---The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
27. Letters Patent would be included in expression any law for the time being in force, and would certainly be covered the expression "instrument". The overriding effect given to the Act is thus confined not only to the Code of Civil Procedure but also to the Evidence Act. The Evidence Act is also an instrument having effect by virtue of law. Looking to the provision of the restricted right of an Advocate to appear in a matter obviously, the Advocates Act of 1961 also has effect to that extent.
28. Virtually, the litigation before the Family Court is a mixture of inquisitorial trial, participatory form of grievance redressal and adversorial trial.
As the Family Court is left to devise its own practice, it can have a judicious mixture of all three of them and can as well proceed under any of- them exclusively.
29. The anomaly would thus be obvious. The Ordinary Original Civil Jurisdiction is held to be retained as per the learned Judges of the Division Bench and the learned Judges of the Pull Bench of the Madras High Court. The procedure will be in accordance with the respective rules of the High Court on its Original Side. When legal representation being a certainty with all trapping of a full-fledged trial and the Evidence Act, 1872 will apply with force and rigour.
30. The litigants deciding to litigate within the limits of the City of Mumbai will thus continue to operate under the existing system. The litigants other than that litigating with new system will have the benefit of the aforesaid Family Courts Act which with reference to the aforesaid changes brought about in the conduct of the matters before the Family Court is clearly radical departure from the accepted form of a trial of a Civil Court. If the legislature in its wisdom has decided to make this departure while interpreting any provision of it, in our opinion, the interpretation should be in furtherance of the objective.
31. When thus interpreted, in our opinion, the conclusion would be inescapable that when the High Court exercises its Ordinary Original Civil Jurisdiction in relation to the matters under the Family Court Act, it would be a District Court as understood therein. It would, therefore, lose its jurisdiction. The reference is answered accordingly.
32. As the matters were being entertained by this Court on account of a Division Bench judgment holding the field, which because of the judgment delivered by us, position will now alter. By way of consequential order, it is directed that the interim relief, if granted in all the pending matters, they shall stand extended for a period of eight weeks. The office shall accordingly give effect to this direction in all the pending matters.
33. The Prothonotary and Senior Master shall prepare a list of all the matters affected by our judgment and shall also place on the notice board intimating the effect thereof to all concerned.
34. Certified copy be expedited.
35. Reference answered accordingly.