Citation Codes

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Case Number

F.A.F.O No. 300 of 1958

Advocates

Satyendra Nath Verma

Judges

M.C Desai
A.C.J
B. Mukerji
S.N Dwivedi, JJ.

Acts

Sec. 24 of the Hindu Marriage Act, 1955,
Sec. 10 of the Hindu Marriage Act, 1955,
Sec. 10 of the Hindu Marriage Act
Sec. 8 of the Suits Valuation Act
Art. 21-A of the Court Fees Act
Sec. 21), and R. 5 of the Rules
Court Fees Act, Sec. 7(v), (vi)
HINDU MARRIAGE ACT

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Smart Summary

Judgment Summary — Forum of Appeal under the Hindu Marriage Act

Factual and Procedural Background

This opinion addresses whether an appeal from an order made under Section 24 of the Hindu Marriage Act, 1955, by a Civil Judge (in proceedings started under Section 10) lies to the High Court or to the Court of the District Judge, Kanpur.

Material facts as stated in the opinion:

The appellant (husband) filed a petition under Section 10 of the Hindu Marriage Act in the Court of the District Judge, Kanpur. The District Judge transferred the petition for disposal to the First Civil Judge, Kanpur.
No value was stated on the face of the petition.
The respondent (wife) applied for relief under Section 24 before the learned Civil Judge. The Civil Judge ordered that further proceedings on the appellant's petition would remain stayed so long as the appellant did not pay Rs. 250 to the wife for her costs as ordered on 7 April 1958.
The appellant appealed against that order to this Court (High Court) and valued the memorandum of appeal at Rs. 250. S.N. Sahai, J. admitted the appeal, issued notice to the respondent and referred the matter to a larger Bench to decide the question (not specified in the judge’s order). Counsel for the appellant informed the Bench that the question was whether the appeal lay to this Court or to the District Judge, Kanpur.
The respondent did not appear and the Court proceeded ex parte to decide the question.

Legal Issues Presented

Does an appeal valued at Rs. 250 from an order passed under Section 24 of the Hindu Marriage Act, 1955, by a Civil Judge (who is a "District Court" within the meaning of the Act) in a proceeding commenced on a petition under Section 10 of the Act, where the petition does not mention any value on its face, lie to the High Court or to the Court of the District Judge?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Balthazar v. Drouin, 1945 S.C.R (Canada) 517	The Supreme Court of Canada held that where the right in dispute is not appreciable in money (i.e., not capable of pecuniary valuation), no appeal lies to a court where jurisdiction to hear appeals depends on a monetary threshold.	The Court relied on this principle to support the view that where the subject matter of a petition under Section 10 is not capable of pecuniary valuation, the residuary power to entertain an appeal lies with the High Court rather than a district judge whose appellate jurisdiction is value‑dependent.
Fiset v. Morin, 1945 S.C.R (Canada) 520	The Supreme Court of Canada held that an appeal did not lie where the judgment dismissed a suit for lack of sufficient security because there was no amount or monetary value in controversy in the appeal.	Used to illustrate the same principle as Balthazar: absence of a monetary measure in the controversy prevents appeal to a court whose appellate jurisdiction requires a monetary threshold.
Barry v. Mercein, 5 How. 103	Teney, C.J. observed: "The matter in dispute must be money, or some right, the value of which, in money, can be calculated and ascertained."	Quoted to reinforce the proposition that matters incapable of reduction to monetary value are outside the scope of appellate jurisdiction that is limited to disputes valued in money.
Kalyan Singh v. Tejkaur, F.A.F.O. No. 11‑M of 1959 (Punjab High Court, 22 Aug 1960)	Illustrates the application of the principle that where a district judge's appellate jurisdiction depends on a monetary limit, if the subject matter is not pecuniarily valu-able, the appeal lies to the High Court.	The Punjab case held that the appeal lay to the High Court; the present Court cites it as supporting authority for the same interpretive approach.
Villiammal Ammal v. Periaswami Udvar, A.I.R. 1959 Mad. 510	Demonstrates a differing statutory outcome where the State statute vested residuary appellate power in the district judge; the Madras case turned on differently worded provisions governing the forum of appeal.	Referred to contrast statutory language that can produce a different forum of appeal; used to explain why the Punjab and Madras decisions reached different results despite applying a similar principle.

Court's Reasoning and Analysis

The Court proceeded by statutory construction and application of principles governing appellate jurisdiction:

Statutory definitions and jurisdiction: Section 10 petitions under the Hindu Marriage Act are to be presented to the "district court" as defined in Section 3(b). In Kanpur, both the Court of the District Judge and the First Civil Judge were brought within the meaning of "district court" by State Government notification, so orders by the Civil Judge fall within the Act's reference to a district court.
Reference to general appellate law: Section 28 of the Hindu Marriage Act provides that an order made in any proceeding under the Act "may be appealed from under any law for the time being in force." Civil Judges are creatures of the Bengal, Agra and Assam Civil Courts Act, 1887, and Section 21 of that Act provides that an appeal from an order of a Civil Judge lies (a) to the District Judge where the value of the original suit does not exceed Rs. 10,000, and (b) to the High Court in any other case.
Treatment of Section 10 proceedings as original suits: A proceeding under Section 10 is to be treated as an original suit; therefore the value of the subject matter determines whether the appeal lies to the District Judge or to the High Court under the governing appeal statute.
Valuation rules: Normally, the plaint must state the value of the subject matter for jurisdictional and court‑fee purposes (Order 7, Rule 1(i) CPC). The Court examined the interaction of the Suits Valuation Act (Section 8 and 9) and the Court Fees Act. Article 21‑A of the Court Fees Act prescribes a fixed court fee (Rs. 37.50) for a petition under Section 10 of the Hindu Marriage Act, which means the fee is not ad valorem; therefore Section 8 of the Suits Valuation Act (linking jurisdictional value to ad valorem court fee) is not applicable.
Absence of High Court rules under Section 9: Where Section 8 does not apply, Section 9 of the Suits Valuation Act requires fixation of value according to rules made by the High Court. The Court noted that no such rules made by the High Court under Section 9 were placed before it. Consequently, there was no law directing how the value of the subject matter of a Section 10 petition should be fixed.
Consequences of no stated value and no valuation rule: Because the petition did not state a value and there was no rules-based method to fix one, the Court concluded it could not be assumed that the value did not exceed Rs. 10,000. Further, the subject matter of the petition (matters under the Hindu Marriage Act) is not capable of pecuniary valuation; therefore it cannot be said that the value is within the monetary threshold giving the District Judge appellate jurisdiction.
Precedential support and principle: The Court relied on authorities (Canadian and U.S. cases and two Indian High Court decisions) for the principle that where appellate jurisdiction of a lower appellate court depends on the matter being valued in money, an appeal will not lie to that court if the subject matter is not capable of pecuniary valuation. The Court applied this principle to conclude that the residuary appellate jurisdiction in such circumstances vests in the High Court.

Holding and Implications

Holding: The Court held that an appeal from an order passed under Section 24 of the Hindu Marriage Act, 1955, by a Civil Judge (who is a "district court" within the meaning of the Act) in a proceeding commenced on a petition under Section 10 of the Act, where the petition does not mention any value on its face, lies to the High Court.

Implications:

Direct effect on the parties: The appeal in this matter is properly before the High Court and not the Court of the District Judge; the Court directed that the appeal be listed in the usual course for final hearing when ready.
Broader impact: The decision applies the principle that where the appellate forum for orders of a Civil Judge depends on a monetary threshold, and the subject matter is not capable of pecuniary valuation (or no valuation rule applies), the residuary power to entertain appeals rests with the High Court. The opinion cites prior authorities to support that interpretive approach.
Precedential note: The opinion does not state that it is purporting to set any novel general precedent beyond applying the cited principles to the facts; it confines its decision to the question presented and directs listing of the appeal for final hearing.

Disposition: Question answered. (Mukerji, J. and Dwivedi, J. agreed.)

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Paras Ram v. Janki Bai Alias Savitri .

Desai, A.C.J:— The question referred to us in this appeal is whether the appeal lies to this Court or to the Court of the District Judge, Kanpur.

2. The material facts are as follows:—

3. A petition under Sec. 10 of the Hindu Marriage Act, 1955, was filed by the appellant, the husband, against the respondent, his wife, in the Court of the District Judge, Kanpur, who transferred it for disposal to the First Civil Judge, Kanpur. No valuation was given on the petition at all. An application for relief under Sec. 24 of the Act was made before the learned Civil Judge by the wife and he passed the order under appeal to the effect that further; proceeding on the appellant's petition would remain stayed so long as he did not pay to the wife the sum of Rs. 250 for her cost of defending the proceeding as ordered on the 7th April, 1958. The appellant, being aggrieved by the order, preferred this appeal to this Court. The appeal was valued in the memorandum of appeal at Rs. 250. The memorandum of appeal was presented before S.N Sahai, J., who admitted the appeal, ordered a notice of it to be issued to the respondent, and referred the appeal to a larger Bench for decision of “the question raised.” What was the question raised is nowhere mentioned in the order of the learned Judge; nor does he refer to any question raised in the memorandum of appeal. When we asked Shri Satyendra Nath Verma what was the question meant by the learned Judge, he informed us that it was whether the appeal lay to this Court or to the Court of the District Judge, Kanpur. The question seems to have been raised by the learned Judge himself. We, therefore, proceed to deal with the following question:—

“Does an appeal valued at Rs. 250 from an order passed under Sec. 24 of the Hindu Marriage Act, 1955, by a Civil Judge, who is a District Court within the meaning of the Act in a proceeding commenced on a petition under Sec. 10 of the Act, which does not mention any value on the face of it, lie to this Court or to the Court of the District Judge?”

4. A notice of this appeal was sent to the respondent but she has not appeared before us and we are determining the question ex parte against her.

5. A petition under Sec. 10 of the Act is to be presented to the district court, which is defined in Sec. 3(b) to mean, in an area where there is no city civil court, “the principal civil court of original jurisdiction, and include 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 with in this Act; Vide Sec. 19. There is no city civil court in Kanpur and the principal civil court of original jurisdiction there is the Court of the District Judge. The State Government has issued a notification in the Official Gazette specifying the Court of the First Civil Judge, Kanpur, as having jurisdiction in respect of the matters dealt with in; this Act. Consequently the Courts of the District Judge and the First Civil Judge have both come within the meaning of the words ‘District Court.’ We pass by the question why the appellant presented the petition under Sec. 10 in the Court of the District Judge instead of in the Court of the First Civil Judge and why the learned District Judge accepted it, because the form of appeal does not depend upon in which court it was presented. Sec. 28 lays down that an order made by the court in any proceeding under the Act “may be appealed from under any law for the time being in force.” The court of a civil judge in the State is created Under the Bengal, Agra and Assam Civil Courts Act, 1887. Sec. 21 of the Act lays down that an appeal from an order of a Civil Judge shall lie to “(a) the District Judge where the value of the original suit in which…..the order was made does not exceed ten thousand rupees, and (b) the High Court in any other case.” A proceeding under Sec. 10 of the Hindu Marriage Act is to be treated as an original suit. Consequently an appeal from an order of a civil judge passed in such a proceeding lies to the District Judge if a certain condition is fulfilled and to the High Court if it is not. The residuary power is thus vested in the High Court and an appeal Ties to the District Judge only if the condition is fulfilled. The value placed on the memorandum of appeal is of no consequence. Every plaint must bear the value of the subject matter of the suit for the purposes of jurisdiction and of court fees (vide Or. 7, R. 1(i) C.P.C) A proceeding under the Hindu Marriage Act is governed by the C.P.C (vide Sec. 21), and R. 5 of the Rules made by this. Court in exercise of the powers conferred under Secs. 14 and 21 of the Act. Sec. 8 of the Suits Valuation Act lays down that the value for jurisdiction will be the same as that for the court fees in suits other than those referred to in the Court Fees Act, Sec. 7(v), (vi) and (ix), in which ad valorem court fee is payable. Under Art. 21-A of the Court Fees Act a fixed court fee of Rs. 37-50 is payable on a petition under Sec. 10 of the Hindu Marriage Act; in other words the court fee on such a petition is not ad valorem court fee and consequently Sec. 8 of the Suits Valuation Act is not applicable to the present case. When Sec. 8 does not apply, Sec. 9 applies and the value of the subject matter of the suit is to be fixed in accordance with the Rules made by the High Court. No rules made by this Court in exercise of the power conferred by Sec. 9 have been brought to our notice. Consequently there is no law directing how the value of the subject matter of a petition under Sec. 10 for the purpose of jurisdiction is to be fixed. The appellant, though bound by Sec. 21 of the Act read with Or. 7, R. 1(i) to state the value of the subject matter, did not state it, presumably because he did not know how it was to be fixed.

6. When no value was fixed on the petition and when there was no law also under which a certain value or a value not below or not exceeding a certain sum ought to have been fixed, it cannot be said that the value of the petition did not exceed Rs. 10,000. The subject matter of the petition was not capable of pecuniary valuation and it could not be said that it exceeded any sum of money. Consequently, the appeal from an order passed in a proceeding started on the petition lay to this Court. It would lie to the Court of the District Judge only if it could be predicated that the valuation of the petition did not exceed Rs. 10,000. In the case of a subject matter not capable of pecuniary valuation it could not be said that it does not exceed any sum of money. The residuary power to entertain an appeal vests in the High Court not only when the value of the suit exceeds Rs. 10,000 but also when the subject matter of the suit is incapable of pecuniary valuation. In this interpretation I am supported by Balthazar v. Drouin . 1945 S.C.R ‘Canada’ 517., Fiset v. Morin . 1945 S.C.R Canada 520., Barry v. Mercein . 5 How. 103, Kalyan Singh v. Tejkaur . F.A.F.O No. 11-M of 1959, decided by Khosla, C.J and Gurdeo Singh, J., of the Punjab High Court on the 22nd Aug., 1960. and Villiammal Ammal v. Periaswami Udvar . A.I.R 1959 Mad. 510.. Under the Supreme Court Act an appeal from the judgment of a State Court in Canada lies to the Supreme Court of Canada if the amount or value of the matter in controversy exceeds a certain sum. In the case of Balthazar an appeal to the Supreme Court was sought from a judgment of a State Court dismissing the appellant's suit because he had not fulfilled a certain condition. The matter in controversy in the proposed appeal was whether it was correct that the suit could not proceed unless the condition had been fulfilled. The Supreme Court of Canada held that the right of the appellant to proceed without fulfilling the condition was not appreciable in money and that consequently no appeal lay to it. In the other case of Fiset the Supreme Court held that no appeal lay to it from a judgment dismissing the appellant's suit because he had not given sufficient security, on the same reasoning that there was no amount or value in controversy in the appeal. In the case of Barry the Supreme Court of the United States had to consider the law laying down that a decree, when the matter in dispute exceeded a certain sum, might be appealed from, and Teney, C.J, observed at page 120 that—

“The matter in dispute must be money, or some right, the value of which, in money, can be calculated and ascertained.”

7. The controversy in that case was between the father and the mother regarding the custody of a child. Since it was a matter utterly incapable of being reduced to any pecuniary standard of value, the Supreme Court held that no appeal lay to it. The Punjab and the Madras cases both dealt with the forum of appeal from an order passed under the Hindu Marriage Act. In both the cases the order was passed by the court of a Civil Judge, which was a “district court” within the meaning of the Act. The two States, however, had differently worded provisions governing the forum of appeal from a judgment of a civil court. The provision in the Punjab Act was similar to the provision in the Bengal, Agra and Assam Act inasmuch as it vested the residuary power in the High Court, while the Madras Act vested the residuary power in the District Judge by providing that an appeal would lie to the district judge, except when the amount or value of the subject matter exceeds a certain sum. It was this difference in the language employed in the two Acts that was responsible for the different results arrived at in the two cases. In the Punjab case it was held that the appeal lay to the High Court whereas in the Madras case it was held that it lay to the district Judge. The principle applied in both the decisions was the same,—it being an appeal will not lie to the court the jurisdiction of which to entertain it depends upon a certain value of the subject matter in controversy. In the case before us, as also in the Punjab case, the jurisdiction of the district judge to entertain an appeal depends upon the value of the subject matter in appeal not exceeding a certain sum. According to the principle applied in all the cases discussed above, when the subject matter in appeal is not capable of pecuniary valuation, the appeal will not lie to the district judge.

8. In the result I hold that an appeal from an order passed under Sec. 24 of the Hindu Marriage Act, 1955, by a civil judge, who is a district court within the meaning of the Act, in a proceeding commenced on a petition under Sec. 10 of the Act which (petition) does not mention any value on the face of It, lies to the High Court.

9. List the appeal in the usual course for final hearing when it is ready.

10. Mukerji, J.:— I agree.

11. Dwivedi, J.:— I agree.

Question answered.

Paras Ram v. Janki Bai Alias Savitri .

Judgment Summary — Forum of Appeal under the Hindu Marriage Act

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Paras Ram v. Janki Bai Alias Savitri .

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