Kerala High Court
P.K.Vijayan vs T.A.Jayaprabha
Bench: Antony Dominic, A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY,THE 2ND DAY OF FEBRUARY 2016/13TH MAGHA, 1937
OP(C).No. 389 of 2015 (O)
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AGAINST ORDER DATED 13.1.2015 IN IA NO.1378/2014 IN OS NO.82/1997 OF THE COURT OF
THE SUBORDINATE JUDGE, THIRUVALLA
PETITIONER(S)/COUNTER PETITIONER/DEFENDANT:
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P.K.VIJAYAN ,S/O.KOCHUKUNJU PANICKER,
PUTHUPARAMBIL, AMALLOOR MURI
KUTTAPUZHA VILLAGE, THIRUVALLATALUK
BY ADV. SRI.S.SUBHASH CHAND
RESPONDENT(S)/PETITIONER/PLAINTIFF:
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T.A.JAYAPRABHA
W/O.VIJAYAN, KAVIRAYIL VEEDU, MEENTHALAKKARA MURI
KUTTAPUZHA VILLAGE, THIRUVALLATALUK-689101
BY ADVS. SRI S.V.BALAKRISHNA IYER (SENIOR ADVOCATE)
SRI. .P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
THIS OP (CIVIL) HAVING BEEN FINALLYHEARD ON 13.01.2016, THE COURT ON
02-02-2016 DELIVERED THE FOLLOWING:
OP(C).No. 389 of 2015 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1:TRUE COPY OF THE JUDGMENT DTD 27/2/1999 PASSED BY THE COURT OF THE
SUBORDINATE JUDGE, THIRUVALLA, IN OS 82/1997
EXT.P2:TRUE COPY OF THE JUDGMENT DTD 16/9/2014 PASSED BY THIS HON'BLE COURT
IN AS NO 93 OF 2000
EXT.P3:TRUE COPY OF THE ORDER DTD 13/1/2015 PASSED BY THE COURT OF THE
SUBORDINATE JUDGE, THIRUVALLA IN IA NO 1378 OF 2014 IN OS 82 OF 1997
RESPONDENT(S)' EXHIBITS: NIL
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//TRUE COPY//
"C.R."
ANTONY DOMINIC & A.HARIPRASAD, JJ.
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O.P.(C) No.389 of 2015
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Dated this the 2nd day of February, 2016
JUDGMENT
Hariprasad, J.
This original petition filed under Article 227 of the Constitution of India comes up before us pursuant to an order of reference passed by a learned Single Judge. Parties to this proceedings are husband and wife. Wife (respondent-plaintiff) filed O.S.No.82 of 1997 before the Court of Subordinate Judge, Thiruvalla against her husband (petitioner-defendant) for return of `50,000/- allegedly entrusted with him at the time of their marriage and also for the value of her ornaments, said to have been appropriated by him. Learned trial Judge dismissed the suit. An appeal was brought up before this Court as A.S.No.93 of 2000. A Division Bench of this Court allowed the appeal in part and remanded the matter to the trial court for fresh disposal. This Court confirmed the finding of trial court that the plaintiff failed to establish that the defendant had received `50,000/- at the time of marriage. However, the Division Bench was of the view that OP(C) No.389/2015 2 the trial court's denial of the plaintiff's claim for value of ornaments as time barred was unsustainable. The trial court did not consider that the ornaments were entrusted by the plaintiff with the defendant during their matrimony and therefore latter was held to be a trustee for the former. So much so, Section 10 of the Limitation Act, 1963 would operate against the plea of limitation. That aspect was not considered by the court below. Hence, after allowing the appeal in part, the judgment and decree of the trial court to that extent was set aside. In spite of having sufficient evidence before the court below on those matters, it decided the case on a pure question of law Hence this Court directed the trial court to reconsider the issue elaborately on the basis of available evidence.
2. After remand, the respondent herein (plaintiff) filed a petition under Section 151 of the Code of Civil Procedure, 1908 (in short, "Code") requesting the trial court to transfer the case to the Family Court, which was established for the area pending the appeal. Petitioner (defendant) opposed this contention. Nevertheless, the court below allowed the application filed by the respondent and ordered to return the plaint to be presented before the Family Court, Thiruvala. It is further directed that the records should be transmitted to the Family Court. These findings are assailed in this original petition.
3. Learned Single Judge, on finding that the remand order was OP(C) No.389/2015 3 passed by a Division Bench, was of the opinion that the matter should be referred to a co-equal bench. The Registry, after taking orders from the Hon'ble Chief Justice, placed the case before us.
4. We heard Sri.Subhash Chand, the learned counsel appearing for the petitioner and Sri.S.V.Balakrishna Iyer, the learned Senior Counsel for the respondent.
5. Learned counsel for the petitioner seriously challenged the legality of order passed by the Subordinate Judge. According to the learned counsel, finding of the Subordinate Judge, that in view of Sections 7 and 8 of the Family Courts Act, 1984 (in short, "the Act") the court has no jurisdiction to entertain the suit, is nothing but transgression of the limits of the order of remand, which is impermissible in law. It is the contention of the petitioner that the Subordinate Judge was bound by the remand order and should have decided the matter in terms of the directions in the remand order. Per contra, the learned Senior Counsel for the respondent contended that by virtue of the statutory provisions, the Subordinate Judge is debarred from deciding any question falling within Section 7 of the Act by operation of law in Section 8 of the Act. Respondent supported the order under challenge as one which is perfectly legal and proper.
6. Legal conundrum arising for decision is if the order impugned is illegal and/or improper? Before delving into the details, we shall extract OP(C) No.389/2015 4 Order 41 Rule 23 of the Code.
"R.23. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand".
On a careful perusal of the provision, it will be clear that the following conditions are necessary for the court to exercise power under the provision:
(i) the appellate court must be in seizin of a decree passed by a trial court on a preliminary point
(ii) the decree should be reversed by the appellate court in the appeal
(iii) if so, the appellate court, if it thinks fit, may remand the case to the trial court and may further direct as to what issue or issues OP(C) No.389/2015 5 should be tried in the case
(iv) the appellate court shall send a copy of its judgment and order to the court from whose decree the appeal is preferred
(v) the order should contain directions to readmit the suit under its original number in the register of civil suits and to proceed to determine the suit
(vi) evidence (if any) recorded during the original trial shall, subject to all just exceptions, be the evidence during the trial after remand.
The above Rule applies only when the trial court disposed the entire suit as a result of its finding on a preliminary issue without deciding other issues. Long line of decisions could be seen to the effect that the provision has no application when the trial court has decided the whole suit on merits and has given its findings on all the issues based on evidence. It is also well settled that an order of remand cannot be made on the ground that the judgment did not discuss the evidence with reference to the several issues and that it contravened the provision under Order 20 Rule 5 of the Code. Equally settled is the proposition that civil cases cannot be remanded back to the trial court in order to decide any question of fact which was not properly pleaded and no evidence was let in by the parties on that point. A remand for the purpose of adducing fresh evidence to explain the evidence on record, where it is unambiguous or to cover up deficiencies or to fill in OP(C) No.389/2015 6 gap is not warranted by the said Rule. The trend of precedents is to the effect that appellate courts shall not pass orders of remand under Order 41 Rule 23 of the Code as a matter of course.
7. As a general rule, it can be stated that the court to which a case is remanded has to comply with the order of remand. It is legally impermissible for a court to which a case is remanded to question the wisdom of the appellate court. Judicial discipline, comity and respect for the hierarchy of courts mandate that the lower court has to comply with the order of remand. The court to which a case is remanded cannot go behind the order of remand is a well established principle. Learned author Mulla in his treatise on the Code of Civil Procedure (18th edition, Vol.3 at page 3515-3516) states as follows:
"Where a suit is remanded under this rule, the whole suit is reopened and the questions on which the trial court may have recorded its findings may be reagitated except as to matters decided expressly or impliedly in the order of remand. When an Appellate Court remands the case for further inquiry, the lower court has to act within the limits of the remand order. It cannot reopen the finding of the Appellate Court; if it does so, it exceeds the limits of its jurisdiction. It can decide the suit only in view of the directions issued by the Appellate Court. It is well-settled OP(C) No.389/2015 7 that the court, to which the case is remanded, has to comply with the order of remand. Acting contrary to the order of remand is contrary to law. The order of remand had to be followed in its true spirit. It is appropriate for the Appellate Court to indicate in its order as to on which point the court to which the matter is being remanded back is required to consider the matter again and pass appropriate direction in accordance with the directions of the Appellate Court".
In Ayyappally Mohammed Haji and others v. M. M. Abdul Salam and others (AIR 2001 SC 797) the Supreme Court held that where a remand order clearly directed the trial court to decide the case on the pleadings as they exist, reliance by the trial court on materials beyond the pleadings would be improper. The propositions that when a case is remanded back to the trial court, that court will have to act within the limits of the remand order and it cannot go beyond the order of remand are unchallengeable.
8. The pivotal question for consideration in this case is whether the court below is legally justified in finding that it lost jurisdiction over the subject matter subsequent to the trial and before the order of remand because of the establishment of a Family Court for the area concerned. Answer to this question will resolve the legal challenge against the impugned order whereby the remanded case was transferred to the Family OP(C) No.389/2015 8 Court. Incidentally, another question may also arise as to whether the action of the lower court, even if it was found to be legally correct, was proper? Was it obligatory on the part of the court below to inform this Court about the commencement of a Family Court having jurisdiction over the subject matter before transferring the remanded case to a Family Court? Answers to these questions will depend on the appreciation of legal principles in Sections 7 and 8 of the Act.
9. Section 7 of the Act deals with jurisdiction of the Family Courts. It is clear that subject to the provisions in the Act, a Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any Subordinate Civil Court in respect of suits and proceedings in the nature referred to in the Explanation. Family Court shall be deemed, for the purpose of exercising such jurisdiction, to be a District Court or, as the case may be, such Subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. Explanation to Section 7 of the Act deals with seven types of suits or proceedings falling within the exclusive jurisdiction of the Family Court. Indisputably, the case in our hand will fall within Section 7(1)(b) of the Act. Admitted fact situation is that if the parties for the first time filed a suit of this nature at the time when the case was remanded by this Court, it could have been entertained by the Family Court only. Here, the question is whether it was legally correct for the court, to which OP(C) No.389/2015 9 the case is remanded, to transfer the case to a Family Court having jurisdiction over the area.
10. Section 8 of the Act is the key provision relevant for decision of the dispute. The Section is reproduced for better clarity.
"Exclusion of jurisdiction and pending
proceedings.-Where a Family Court has been
established for any area,-
(a) no District Court or any subordinate
Civil Court referred to in sub-section (1) of Section 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;
(b) no Magistrate shall, in relation to
such area, have or exercise any jurisdiction or
powers under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature
referred to in the Explanation to sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), -
(i) which is pending immediately before the establishment of such Family Court before any District Court or subordinate Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code;
OP(C) No.389/2015 10 and
(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established."
Section 8(a) of the Act clearly says that where a Family Court has been established for any area, no District Court or any Subordinate Civil Court 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 Section 7(1) of the Act. Section 8(c) of the Act is also relevant. It says that every suit or proceeding of the nature referred to in the Explanation to Section 7(1) of the Act, which is pending immediately before the establishment of such Family Court before any District Court or Subordinate Court and which would have been required to be instituted or taken before or by such Family Court if, this Act had come into force and such Family Court had been established before the date on which such suit or proceeding was instituted, then such suit or proceeding shall stand transferred to such Family Court on the date on which it is established. Admittedly, a Family Court was established at Thiruvalla while the matter OP(C) No.389/2015 11 was pending before this Court in appeal. The question therefore is whether this Court, in view of Section 8 of the Act could have remanded the case to the trial court after establishment of a Family Court having jurisdiction in this matter. This Court in Kunhathutty v. Meleveettil Kunhikoya and others (2015 (4) KHC 342) has held that after the commencement of a Family Court in an area, other courts, where the matters are pending, ought to transfer the case to the Family Court. Even if a party files an application under Order 7 Rule 10A of the Code and the court passes an order returning the plaint to be presented before the Family Court, that order is without any legal effect as that court has no jurisdiction to entertain any application at the material time. Similarly in Sherly v. Sukumari Amma and others (2012 (2) KHC 753) this Court took a view that a suit pending before the Subordinate Court cannot be transferred to a Family Court except under Section 8 of the Act. In a situation where an exparte decree had been passed by a Civil Court prior to the establishment of a Family Court and thereafter a Family Court was established for that area, it is held that the petition to set aside the exparte decree can only be filed before the Family Court and not before the Civil Court (see Devaki v. Chandrika - 1997 (2) KLT746). In the said decision, following observations are made by the Division Bench:
".......... It is significant to note in this OP(C) No.389/2015 12 connection that there is no provision in the Act saving the jurisdiction of the civil courts in respect of suits and proceedings covered by the Explanation and disposed of already by the civil courts prior to the establishment of the Family Court. In the circumstances, it has to be held generally that the entire jurisdiction exercisable by the civil courts in respect of suits and proceedings of the categories covered by the Explanation and already disposed of by them prior to the establishment of the Family Court would stand statutorily excluded and vested in the Family Court established for the areas within their jurisdiction and only such Family Court would have thereafter jurisdiction to entertain any application or petition in such disposed of matters and to dispose of them in accordance with law."
11. Learned counsel for the petitioner relying on a Division Bench decision of this Court in Josekutty Joseph v. Aniamma Thomas and another (2006 (3) KLT 114) contended that the suits or proceedings referred to in Section 7 of the Act can only be suits or other proceedings of an original nature. A case after remand cannot be said to be an original proceedings. It was therefore incumbent on the trial court to dispose of the case in terms of the directions in the remand order. We are unable to accept this contention of the learned counsel for the following reasons. OP(C) No.389/2015 13 Order 41 Rule 23 of the Code quoted above clearly shows that in the remand order there should be a direction by the appellate court to the lower court to readmit the suit under its original number in the register of civil suits and to proceed to determine the suit in accordance with the guidelines given in the remand order. Fact discernible from the plain language of Section 8 of the Act is that it is impossible, after the establishment of a Family Court for an area, to readmit any suit falling under Section 7 of the Act under its original number. The observations in Josekutty Joseph's case were made in the context of a dispute relating to the execution of a decree passed by a Civil Court prior to the establishment of a Family Court. In that background, it was held that the court which passed the decree should be approached for executing the decree. The observation in the said decision that Section 7(1) Explanation of the Act contemplates only original suits or proceedings can only be understood in the context that the Family Courts are incompetent to execute decrees passed by Civil Courts. It is all the more so when the provision in Section 38 of the Code is reckoned, which prescribes that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. In the above situation, it cannot be said that the Family Court had passed the decree. Further, by the said provisions in the relevant Act, a Family Court cannot be deemed to be a court to which a decree passed by a Civil Court OP(C) No.389/2015 14 can be transferred for execution. Phraseology employed in Section 8 of the Act makes it clear that a decree passed by a Civil Court cannot be sent for execution to a Family Court. Therefore, the principle in Josekutty Joseph's case has no application to this case.
12. To sum up this point, we are of the view that wording used in Section 8 of the Act in unequivocal terms spell out a statutory transfer of all matters falling under Section 7(1) Explanation of the Act to a Family Court established for the area. And by operation of law, all such suits and proceedings shall stand transferred to such Family Court on the date when it is established. It is clear that if the parties to this proceedings wanted to institute a suit in respect of any of the reliefs in Section 7(1) Explanation of the Act as on the date of remand, they could have only approached the Family Court, Thiruvalla. In this backdrop, the point for determination is whether the court below could have retained and disposed of the case in compliance with the directions in the remand order. It is most important to note that had the lower court continued the proceedings pursuant to the directions in the remand order, by operation of Section 8 of the Act, the decision taken thereon by the trial court certainly would be a nullity for want of jurisdiction over the subject matter. It can even be challenged under Section 47 of the Code in an execution proceeding.
13. This Court in the order of remand clearly mentioned that the OP(C) No.389/2015 15 judgment and decree of the court below to the extent indicated in the appellate judgment had been set aside. The case was remanded to the "trial court" for fresh disposal. The expression "trial court" in this context can only mean the court which is competent to try the issue/issues pursuant to the order of remand. As mentioned above, Section 8 of the Act debars the Court of the Subordinate Judge from dealing with the matter subsequent to the establishment of a Family Court for the area. The definite language used in Section 8 of the Act effecting a statutory transfer of all pending cases falling under Section 7(1) Explanation of the Act cannot be disregarded. We are, therefore, of the opinion that the Sub Court concerned had lost its jurisdiction over the subject matter on the establishment of the Family Court, which happened before the order of remand and thereby it was precluded from proceeding with the case. Had any of the parties at the time of hearing mentioned before this Court about the establishment of a Family Court for the area, this Court would not have remanded the case to the erstwhile trial court, viz., Court of the Subordinate Judge.
14. We are of the definite view that no appellate court can remand a case to a court which lacks inherent jurisdiction over the subject matter. Well settled is the proposition that consent of the parties cannot confer jurisdiction on a court, if it does not legally possess the same. Likewise, by OP(C) No.389/2015 16 an order of remand, a superior court cannot confer jurisdiction on an inferior court, if there is an inherent deficiency in its jurisdiction over the subject matter. Jurisdiction of a Court or Tribunal is determined by the statute by which it is created. No appellate court can confer jurisdiction on a subordinate court, however high the appellate court may be.
15. This view of ours derive support from the precedents. A Full Bench of the Madras High Court in Atchayya v. Venkata (AIR 1915 Madras 1223) had occasion to consider a similar issue. A Division Bench of the Madras High Court noticed a direct conflict between two Division Bench decisions in respect of the expression "acted illegally" occurred earlier in Section 115 of the Code. The questions formulated for reference are as follows:
".....(1)What is the exact scope of the meaning of the words "acted illegally" in S.115, Civil P.C.? Has the High Court power to interfere in any class of cases (and if so, which class), where a question of law is wrongly decided by the Court whose decision is attacked in revision? (2) Has the High Court jurisdiction to interfere under S.115 where an appellate Court erroneously decides in the exercise of its admitted jurisdiction, as an appellate Court, that the Curt of first instance was or was not competent (i.e. Had or had not jurisdiction) to entertain a suit?"
OP(C) No.389/2015 17
Learned Judges of the Full Bench, while answering the questions referred to, considered the legality of a remand order made by a court to an inferior court, which lacked jurisdiction. The point decided reads as follows:
"........ There could be no doubt that a Court of first instance, which wrongly assumes jurisdiction owing to an error of law, acts without jurisdiction. Similarly it may, I think, be said that an appellate Court has no jurisdiction to remit for trial to a lower Court cases over which the latter has no jurisdiction and that if it does so under an error of law, it acts without jurisdiction within the meaning of the section. ............"
16. In another decision of the Madras High Court, reported in Venkatarama v. Angathayammal (AIR 1933 Madras 471), it is observed in the following lines:
"............Even as regards the remand order, to remand a matter for decision to a person who has no jurisdiction at all to decide it, is not in my opinion a mere irregularity. ............"
17. It is therefore evident that an appellate court remanding a case to an inferior court cannot confer jurisdiction on a court if it inherently lacked the same. This Court in Pandit S.K. & Others v. Sreekrishna Swamy Devaswom, Mattancherry and others (2015 (3) KHC 895), after considering the scope of Section 21 of the Code and the relevant OP(C) No.389/2015 18 authorities on the point, has held that the objection as to the local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. If a court lacks jurisdiction over the subject matter, any decision taken by it thereon will be a nullity and will be incapable of execution. Therefore, to conclude this point, we may emphatically state that this Court would not have remanded the case to the Court of the Subordinate Judge and it would have remanded the case to the Family Court concerned, if it was informed by the lower court or by any of the parties that a Family Court had been established having jurisdiction over the area. Having remanded the case to the "trial court" as observed in the order of remand, it can only be understood that the remand was made to a court which possessed jurisdiction to try the case at the material time. Obviously, it can only be the Family Court. Any other interpretation would certainly lead to absurdities. Language employed in Sections 7 and 8 of the Act clearly indicate that after commencement of a Family Court in respect of any area, none of the matters specified in Section 7(1) Explanation of the Act can be dealt with by any other court. All pending matters relating to the above subjects will be deemed to have been transferred to a Family Court by a legal fiction. Therefore, we are of the OP(C) No.389/2015 19 view that no case could have been remanded to a court which lacked inherent jurisdiction over the subject matter. From the above perspective, we do not find any illegality in the view taken by the court below that it lost jurisdiction over the subject matter after the establishment of Family Court.
18. However, we are of the view that the learned Subordinate Judge did not act in accordance with appropriate judicial discipline. The Subordinate Judge, as and when I.A.No.1378 of 2014 was filed by one of the parties to the above suit, should have brought to the notice of this Court, on the administrative side, the stalemate and should have sought appropriate directions. In that case, this Court would have directed the Subordinate Judge to transfer the case in accordance with Section 8 of the Act to the Family Court having jurisdiction. Judicial discipline, decorum and propriety demanded that action on the part of the court below. We may remind the judicial officers of their duty and responsibility to adhere to the principles of hierarchical discipline and norms in order to avoid unpleasant consequences. Nevertheless, we condone the lapses of the court below in this particular case for obvious legal reasons. That apart, any of the parties to the litigation also could have moved this Court for review of the remand order, informing the court about the establishment of a Family Court. Failure on their part is also not appreciable.
19. Another legal error committed by the court below is evident OP(C) No.389/2015 20 from the observations in the operative portion of the order, which is extracted hereunder:
"In view of the lack of inherent jurisdiction, the plaint is ordered to be returned to be presented before the Family Court, Thiruvalla within a week.
I.A. 1378/2014 is allowed. The records shall be transmitted to the Family Court, Thiruvalla on getting intimation."
It is now well settled that Section 8 of the Act does not permit the court below to return the plaint to be presented before a Family Court. The court below should have transmitted the entire records to the Family Court concerned in the light of the statutory transfer envisaged in Section 8 of the Act. Since the court to which the case is remanded back lacked inherent jurisdiction, the order mentioned above should not have been passed.
20. In spite of these irregularities and improprieties on the part of the court below, we do not think that the petitioner can insist that the matter should be decided by the Subordinate Judge who tried the case. We have no hesitation to hold that by virtue of Section 8 of the Act, necessarily the matter should go to the Family Court established for the area for a proper decision.
In the result the original petition is disposed of as above and the Family Court is directed to try and dispose of the case as directed in OP(C) No.389/2015 21 the remand order. If the parties have already not appeared before the Family Court, it shall direct the parties to appear on a specified date.
ANTONY DOMINIC, JUDGE.
A. HARIPRASAD, JUDGE.
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