Gujarat High Court
Amit Hasmukhbhai Shah vs Archana Amit Shah on 14 December, 2021
Author: A.J.Desai
Bench: A.J.Desai, Samir J. Dave
C/LPA/663/2021 JUDGMENT DATED: 14/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 663 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 14887 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/LETTERS PATENT APPEAL NO. 663 of 2021
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
NO. 2 of 2021 In R/LETTERS PATENT APPEAL NO. 663 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AMIT HASMUKHBHAI SHAH
Versus
ARCHANA AMIT SHAH
==========================================================
Appearance:
PARTY IN PERSON(5000) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 1,2
MS E.SHAILAJA(2671) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 14/12/2021
ORAL JUDGMENT
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C/LPA/663/2021 JUDGMENT DATED: 14/12/2021 (PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. By way of the present appeal under Clause 15 of the Letters Patent, the present appellant has challenged a CAV judgement dated 27/09/2018 passed by learned Single Judge of this Court in Special Civil Application No.14887 of 2017, by which, the petition filed at the instance of the respondents, has been accepted and maintenance, which was not granted in favour of the wife, has been allowed and maintenance granted in favour of the daughter, has been increased and in all the appellant has been ordered to pay an amount of Rs.50,000/- per month to the respondents i.e. wife and daughter of the appellant.
2. At the outset, Ms.Shailaja, learned advocate appearing for the respondents i.e. wife and daughter has raised an objection about maintainability of the appeal, which has been filed under clause 15 of the Letters Patent under Rule 81 of Chapter- VI of The Gujarat High Court Rules, 1993 (hereinafter referred to as "the Rules").
3. Ms.E.Shailaja, learned advocate for the respondents would submit that the present appellant has filed a petition under section 13 of the Hindu Marriage Act,1955 seeking decree of divorce on various grounds. An application under section 24 of the Hindu Marriage Act was submitted by the wife seeking maintenance during the pendency of the Divorce Petition filed by her husband. The application was exhibited as Exh.15 in the said petition being Hindu Marriage Petition No.534 of 2012. Family Court, Vadodara vide order dated 12/05/2017 accepted the said application in part and granted maintenance only to the daughter to the tune of Rs.5,000/- per month, however refused to grant any maintenance to the wife. The said decision was challenged by the wife by filing writ petition being Special Civil Application No.14887 of 2017 under Article 227 of the Constitution of India, which has been allowed. She would submit that when the Court has exercised its power under Page 2 of 10 Downloaded on : Wed Jan 12 09:47:52 IST 2022 C/LPA/663/2021 JUDGMENT DATED: 14/12/2021 Article 227 of the Constitution of India arising from the order of Civil Court, the present Letters Patent Appeal is not maintainable and therefore, the present appeal may be dismissed only on this ground.
3.1 In support of her submissions, she has taken us through the provisions of Government of India Act particularly Sections 107 and 108 of the said Act. She would submit that as per Section 107 of the said Act, the High Court has superintendence over all courts for the time being subject to its appellate jurisdiction and may pass appropriate order. Language of Article 222 is paramateria with the aforesaid provision and therefore, as per clause 15, which referred civil jurisdiction of the High Court with Appendix of The Gujarat High Court Rules, 1993, the Letters Patent Appeal would not lie before Division Bench of this Court. She would further submit that similar issue arose in past, which has been dealt with by this Court as well as by Hon'ble Apex Court and it has been made amply clear that Letters Patent Appeal would not lie if the proceedings are arising out of learned Single Judge in exercise of power under Article 227 of the Constitution of India, arsing from the order of Civil Court. She would further submit that the dispute is only of civil in nature between private parties and therefore also, it can be said that learned Single Judge has exercised power under Article 227 of the Constitution of India though the petition was filed by the wife under Article 227 of the Constitution of India.
3.2 In support of her submission, she has relied upon the decision dated 05/05/2011 delivered by Division Bench of this Court in the case of Gustadji Dhanjisha Buhariwala & Another V/s. Nevil Bamansha Buhariwala & Ors reported in 2011(2) GLR 1357, wherein it has been held that Letters Patent Appeal would not lie against the order of learned Single Judge wherein the court has exercised power under Article 227 of the Constitution of India. She would submit that this Page 3 of 10 Downloaded on : Wed Jan 12 09:47:52 IST 2022 C/LPA/663/2021 JUDGMENT DATED: 14/12/2021 decision was delivered by Division Bench during the pendency of Reference involving similar issue in the case of Radhey Shyam & Anr. V/s. Chhabi Nath & Ors. in Civil Appeal No.2548 of 2009 now reported at (2015) 5 Supreme Court Cases Page 423. She would submit that Hon'ble Apex Court has replied reference by order dated 26/02/2015 in the case of Radhey Shyam (supra) and has held that judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution of India and jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution of India.
3.3 She would submit that again same issue arose before this Court in the case of Gujarat State Road Transport Corporation V/s. Firoze M Mogal in Letters Patent Appeal No.1149 of 2002 and other allied matters reported in 2014(2) GLR 1373, wherein five Judges of this Court have held that Letters Patent Appeal would not lie if the Court has exercised power under article 227 of the Constitution of India arising from the proceedings of the Civil Court. This issue was carried further before the Hon'ble the Apex Court and the same was finally decided by Hon'ble Apex Court in the case of Jogendrasinhji Vijaysinghji V/s. State of Gujarat and others, reported in (2015) 9 SCC 1.
By taking us through the relevant paragraph of the said judgement, it has been summarized by Hon'ble the Apex Court in the same line as referred in the case of Radhey Shyam (supra) and therefore, she would submit that the appeal may be dismissed on the ground of maintainability.
4. On the other hand, party-in-person has submitted his written arguments, which has been served to learned advocate appearing for the respondents. He would submit that though the petition was filed by the respondents under Article 227 of the Constitution of India, learned Single Judge has in fact not exercised his powers only under Article 227. He Page 4 of 10 Downloaded on : Wed Jan 12 09:47:52 IST 2022 C/LPA/663/2021 JUDGMENT DATED: 14/12/2021 would submit that number of observations made in the impugned order are contrary to the records and has relied upon those documents, which were never produced in the proceedings pending before the lower court. He would submit that learned Single Judge has overlooked and has also not cared to look into the evidence produced before the learned Trial Court and has enhanced the amount of compensation, which can be treated as exercise of his power under Article 226 of the Constitution of India. He has relied upon Para-29 of the order passed in the case of Jogendrasinhji Vijaysinghji (supra) and would submit that in the present case, the same observations would be applicable. He has also raise certain contentions about the amount of maintenance granted by the trial court and not entitlement of any maintenance to the opponent-wife. Hence, the appeal may be heard on merits.
5. Party-in-person also draw our attention to the order dated 04/11/2019 passed by Hon'ble Apex Court when he challenged the interim order of this Hon'ble Court directing the present appellant to deposit Rs.10,00,000 (Rupees Ten Lacs) as a condition to hear the matter on merits.
6. No other arguments were advanced by Party-in-person as well as learned advocate for the respondents.
7. We have heard party-in-person as well as learned advocate appearing for the respondents. It is not in dispute that the respondents challenged the order dated 12/05/2017 passed by learned Family Court, Vadodara, by way of filing writ petition being Special Civil Application No.14887 of 2017 under Article 227 of the Constitution of India, which was entertained and maintenance has been enhanced as per order dated 27/09/2018 passed by learned Single Judge.
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8. We would like to reproduce relevant the provisions of law, which are as under:
8.1 Sections 107 and 108 of Government of India Act,1950, read as under :
107. Powers of high court with respect to sub-
ordinate courts. Each of the high courts has superintendence over all courts for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say,-
(a) call for returns;
(b) direct the transfer of any suit or appeal from any such court to any other court of equal or superior jurisdiction;
(c) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts;
(d) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and
(e) settle tables of fees to be allowed to the sheriff, attorneys, and all clerks and officers of courts:
Provided that such rules, forms and tables shall not be inconsistent with the provisions of any Act for the time being in force, and shall require the previous approval, in the case of the high court at Calcutta, of the Governor-General in Council, and in other cases of the local Government.
108. Exercise of jurisdiction by single judges or division courts.
(1) Each high court may by its own rules provide as it thinks fit for the exercise, by one or more judges, or by division courts constituted by two or more judges, of the high court, of the original and appellate jurisdiction vested in the court.
(2) The chief justice of each high court shall determine what judge in each case is to sit alone, and what judges of the court, whether Page 6 of 10 Downloaded on : Wed Jan 12 09:47:52 IST 2022 C/LPA/663/2021 JUDGMENT DATED: 14/12/2021 with or without the chief justice, are to constitute the several division courts."
8.2 Article 227 of the Constitution of India,1949, is paramaterial, which reads as under:
"227. Power of superintendence over all courts by the High Court-
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over Page 7 of 10 Downloaded on : Wed Jan 12 09:47:52 IST 2022 C/LPA/663/2021 JUDGMENT DATED: 14/12/2021 any court or tribunal constituted by or under any law relating to the Armed Forces."
8.3 Clause 15 of The Gujarat High Court Rules, 1993, which reads as under:
"15. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgement (not being a judgement passed in the exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgement of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act made on or after the first day of February one thousand nine hundred and twenty-nine in the exercise of appellant jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court, where the Judge who passed the judgement declares that the case is a fit one for appeal; but that the right of appeal from other judgements of Judges of the said High Court or of such Division Court shall be to Us. Our heirs successors in our or Their Privy Council, as hereinafter provided."
Upon combined reading of all the aforesaid provisions, makes it clear that Letters Patent Appeal filed under Clause 15 of the Letters Patent, would not be maintainable if learned Single Judge has exercised power under Article 227 of the Constitution of India and dealt Page 8 of 10 Downloaded on : Wed Jan 12 09:47:52 IST 2022 C/LPA/663/2021 JUDGMENT DATED: 14/12/2021 with the case arising from the civil court.
9. In the case of Gustadji Dhanjisha Buhariwala & Another (supra), it has been clearly held that when the petition filed under Article 227 of the Constitution of India is entertained, no appeal would lie under Clause 15 of the Letters Patent.
10. In case of the case of Radhey Shyam & Anr. (supra) in which the reference has been decided, the same was replied in Para-25, which reads as under:
"25. Accordingly, we answer the question referred as follows:
(I) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution;
(ii) Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.
Contrary view in Surya Dev Rai is overruled."
11. The judgement of the Hon'ble Apex Court in case of Jogendrasinhji Vijaysinghji (supra), which arises from the decision of five judges of this Court in Letters Patent Appeal No.1149 of 2002, summarised as under:
"45. In view of the aforesaid analysis, we proceed to summarise our conclusions as follows:
45.1 Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court.
45.2 The order passed by the civil court is only amenable to be scrutinised by the High Page 9 of 10 Downloaded on : Wed Jan 12 09:47:52 IST 2022 C/LPA/663/2021 JUDGMENT DATED: 14/12/2021 Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam, no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable."
12. We are not in agreement with the submissions made by party-in-person, who is practising lawyer, that the learned Single Judge has exercised power under Article 227 of the Constitution of India and hence, the case would fall as described under Para 45.2, which is reproduced as above. We dismiss the appeal only on the ground of maintainability of the Letters Patent Appeal. It is hereby made clear that we have not gone into the merits of the case. Several grounds raised in the appeal about factual aspects, are not dealt with.
13. Considering the overall facts and circumstances of the case, the appeal stands dismissed with no order as to costs only on the ground of maintainability of the present appeal. We have not examined the case on merits.
In view of dismissal of this Letters Patent Appeal, Civil Application No.2 of 2018 as well as Civil Application No.2 of 2021 do not survive and accordingly the same are disposed of as not survive.
14. Request made by party-in-person to stay the impugned order of the learned Single Judge directing him to pay maintenance to the tune of Rs.50,000/- per month to the respondents, is hereby refused.
sd/-
(A.J.DESAI, J) sd/-
(SAMIR J. DAVE,J) DIPTI PATEL Page 10 of 10 Downloaded on : Wed Jan 12 09:47:52 IST 2022