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Case Number

F.A.F.O No. 62 of 1960 against order of Civil J., Dehradun, D/- 19-12-1959

Attorney(S)

J. K. Srivastava
K. L. Misra
Shiamal Singh Varma
C. S. P. Singh and S. N

Judges

M.C Desai, C.J
Jagdish Sahai, J.

Acts

Sec. 10 of the Hindu Marriage Act hereinafter referred to as the Act
provisions of Sec. 9 of the Suits Valuation Act
Assam Civil Courts Act. Section 3 of that Act
Code of Civil Procedure, 1908 (Act V of 1908).
Sec. 10 of the Hindu Marriage Act;
Sec. 8 of the Suits Valuation Act
Sec. 9 of the Suits Valuation Act
Art. 21-A of the Court Fees Act
rules. Rule 18 of those Rules
Court Fees Act. Section 21
Assam Civil Courts Act
HINDU MARRIAGE ACT

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Smart Summary

Judgment Summary (Jagdish Sahai, J.)

Factual and Procedural Background

The respondent, Mrs. Swarn Pratap, filed a petition under Section 10 of the Hindu Marriage Act ("the Act") for judicial separation from her husband, Major Dal Chand Singh Pratap (the appellant). In those proceedings she also filed two applications: one under Section 24 (for expenses of the proceedings) and one under Section 25 (for maintenance of the children). The learned Civil Judge disposed of both applications by a single order dated 19 December 1959, directing the appellant to pay Rs. 1,000 to the respondent towards the expenses of the proceedings (to be paid within one month) and Rs. 5,570 per year towards the maintenance of the children.

A First Appeal From Order challenging that composite order was filed in the High Court. A question as to the competence (proper forum) of that appeal was raised: whether the appeal lay to the High Court or to the District Judge given the valuation placed on the petition. Initially the matter came before Bishambhar Dayal, J., who considered the Court's prior decision in Yudhishtra Singh v. Batauna Devi (1961 A.L.J. 342) but felt that decision was fact-specific and referred the following question to a larger Bench:

“Whether in a petition under the Hindu Marriage Act valued at less than Rs. 1,000/- an appeal lies to the High Court or not?”

The larger Bench heard argument on 21 November 1963, concluded that the appeal was incompetent in the High Court, reserved reasons, and later issued the opinion reproduced here explaining those reasons. The reference was answered accordingly.

Legal Issues Presented

Whether, in a petition under the Hindu Marriage Act valued at less than Rs. 1,000, an appeal lies to the High Court (or, conversely, to the District Judge).

Arguments of the Parties

Appellant's Arguments (Mr. Jagdish Kishore)

By virtue of Section 3(b) of the Hindu Marriage Act (which defines "district court" to include specified civil courts by notification), a Civil Judge designated by notification becomes a "District Court" and therefore is equivalent to a District Judge; consequently an appeal from an order of such a person would not lie to the District Judge (i.e., the High Court must hear the appeal).
Because the Act contains no provision prescribing how a petition under Section 10 is to be valued for jurisdictional purposes, any valuation placed on such a petition ought to be ignored for determining the forum of appeal.
The subject-matter of a petition under Section 10 (judicial separation) is incapable of valuation in monetary terms; therefore any valuation fixed by a party cannot be conclusive and should not determine the forum of appeal.
Additionally, counsel contended that the decision in Paras Ram v. Janki Bai (A.I.R. 1961 All. 395 (F.B.)) — which Yudhishtra Singh purported to follow — was wrongly decided insofar as it concluded there were no rules dealing with valuation.

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

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Yudhishtra Singh v. Batauna Devi, 1961 A.L.J. 342	Used to support the proposition that an appeal in certain Hindu Marriage Act proceedings lies to the District Judge rather than the High Court.	The Court noted the case had been relied upon below to argue the appeal lay to the District Judge; the present Bench endorsed the view (subject to its facts) that the appeal in the present matter does not lie to the High Court but to the District Judge.
Paras Ram v. Janki Bai Alias Savitri, A.I.R. 1961 All. 395 (F.B.)	The Acting Chief Justice in that case observed that under Article 21-A of the Court Fees Act a fixed fee applies to Section 10 petitions, making Section 8 of the Suits Valuation Act inapplicable and invoking Section 9; that case also addressed the absence (at that time) of rules under Section 9 for fixing value.	The present Court observed that although some observations in Paras Ram about the absence of rules were incorrect (rules had since been framed), the ultimate view in Paras Ram about the forum of appeal was consistent with the present decision that the appeal lies to the District Judge.

Court's Reasoning and Analysis

The Court's reasoning proceeds by statutory interpretation and application of procedural law to the factual matrix (a petition under Section 10 valued at Rs. 1,000). The principal legal sources the Court considered and the analytical steps taken are set out below.

1. Statutory framework governing enforcement and appeals:

Section 28 of the Hindu Marriage Act: decrees and orders under the Act are to be enforced and appealed from in the same manner as decrees and orders of courts exercising original civil jurisdiction, subject to the proviso that there is no appeal on costs only.
Provisions of the Code of Civil Procedure (Sections 96 and 104 read with Order 43, Rule 1) govern appeals against decrees and orders of civil courts.
The Bengal, Agra and Assam Civil Courts Act (in particular Section 21) prescribes the forum of appeal from decrees or orders of Civil Judges — appeals lie to the District Judge where the value of the original suit did not exceed Rs. 5,000, and to the High Court in other cases.
Applying these provisions to the admitted valuation of Rs. 1,000, the Court concluded that the appeal lies to the District Judge by virtue of Section 28 of the Act read with Section 21 of the Civil Courts Act.

2. On the first submission (Section 3(b) of the Act and the status of the Civil Judge):

Section 3(b) of the Act defines "district court" for the purposes of that Act and permits the State Government to specify by notification any other civil court (for example, a Civil Judge) as the "district court" for matters under the Act.
The Court distinguished the statutory phrase "district court" from the office or rank of "District Judge" as used in the Bengal, Agra and Assam Civil Courts Act. Section 3 of the Civil Courts Act separately lists the classes of civil courts (court of the District Judge, Additional Judge, Civil Judge, Munsif), demonstrating a clear distinction between a District Judge and a Civil Judge.
Therefore, the fact that a Civil Judge has been specified to function as the "district court" under the Act does not mean the Civil Judge becomes a "District Judge" for all purposes; the functions of a "district court" under the Act may be performed by either the District Judge or the Civil Judge without equating the two offices.
The Court rejected the submission that the Civil Judge's status under the Act precludes an appeal to the District Judge.

3. On the second and third submissions (valuation questions):

The Court referred to its rules framed under Sections 14 and 21 of the Act. Rule 18 provides that costs in a petition under the Act shall be taxed as if the proceedings were a suit unless otherwise directed.
This approach presupposes that petitions under Section 10 are to be treated analogously to suits in important procedural respects (including valuation), otherwise the analogy to suit-procedures (and the fixing of costs) would be inapt.
The Court found that the provisions of Order 7, Rule 1, CPC apply to petitions under the Act (supported by Section 20 of the Act, which requires contents and verification of petitions to follow plaint-verification principles, and by Rule 5 of the Court's rules which expressly incorporates particulars required by Order VII, Rule 1 CPC). Order 7, Rule 1(i) requires a statement of the value of the subject-matter "for purposes of jurisdiction and court-fees so far as the case admits."
Consequently, valuation of the subject-matter must be given in every petition under the Act. The Court rejected the proposition that the subject-matter is incapable of valuation in a way that would make valuation irrelevant for jurisdictional purposes; it observed that even in restitution of conjugal rights cases valuations have been fixed.
Because the court-fee for a Section 10 petition is fixed (under the Court Fees Act, Article 21-A) rather than ad valorem, Section 9 of the Suits Valuation Act applies; rules under that provision have been framed by the High Court (contradicting an earlier observation in Paras Ram that no such rules existed). In any event, in the present case the petition had been valued at Rs. 1,000 and that figure therefore determines the forum of appeal under the Civil Courts Act.

4. Treatment of earlier authorities:

The Court noted the earlier decisions in Paras Ram v. Janki Bai and Yudhishtra Singh v. Batauna Devi reached similar conclusions about the forum of appeal. It pointed out that some observations in Paras Ram about the absence of rules under Section 9 of the Suits Valuation Act were incorrect because rules had since been framed, but that this factual correction did not change the outcome: the appeal in the present case does not lie to the High Court.

Holding and Implications

Holding: The Court concluded that the appeal was not competent in the High Court. In the circumstances of this case — a petition under Section 10 of the Hindu Marriage Act valued at Rs. 1,000 — the appeal lies to the District Judge (Saharanpur) and not to the High Court.

Implications:

Direct effect on the parties: The First Appeal From Order filed in this Court was found to be incompetent here and should be pursued before the District Judge, Saharanpur.
Procedural guidance: The Court clarified that petitions under Section 10 of the Act are to be treated as akin to civil suits for procedural purposes (including valuation requirements under Order VII, Rule 1 CPC and the application of the Suits Valuation Act where applicable), so that the declared valuation of the petition will determine the forum of appeal under the Civil Courts Act.
Broader precedent: The Court's reasoning aligns with prior decisions cited (Paras Ram; Yudhishtra Singh). The opinion answered the referred question and applied existing rules and statutory scheme to reach its decision; the immediate practical consequence is the forum determination for the appeal in this case.

Reference answered.

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Major Dal Chand Singh Pratap v. Swam Pratap .

Jagdish Sahai, J.:— In this First Appeal From Order, which originally came up for hearing before our brother Bishambhar Dayal, a question with regard to the competence of the appeal in this Court was raised. How the question arises would be apparent from the following facts:

2. Mrs. Swarn Pratap, the respondent, filed a petition under Sec. 10 of the Hindu Marriage Act hereinafter referred to as the Act for judicial separation from her husband Major Dal Chand Singh Pratap, the appellant. In these proceedings two applications, one under Sec. 24 and the other under Sec. 25 of the Act were made by Mrs. Swarn Pratap. By means of the first she claimed some amounts towards the expenses of the proceedings under Sec. 10 of the Act and by the second she claimed some amount of money towards the maintenance charges of the children of the parties who were living with her. The learned Civil Judge, who was seized of the matter, disposed of the applications mentioned above by means of a single order dated 19th December, 1959 and directed the appellant to pay Rs. 1,000/- to the respondent towards the expenses of the proceeding within one month and further ordered him to pay a sum of Rs. 5,570/- per year to Mrs. Swarn Pratap by way of the maintenance charges of the children. It is against this composite order that the present First Appeal From Order has been filed in this Court. The petition under Sec. 10 of the Act has been ??? at Rs. 1,000/-. It was contended before Bishambhar Dayal, J., on the basis of Yudhishtra Singh v. Batauna Devi 1961 A.L.J 342., that the appeal would lie to the District Judge. Our brother Bishambhar Dayal, however, was of the opinion that the decision in Yudhishtra Singh v. Batauna Devi was based on its own facts. He, therefore, referred the following question to larger Bench:

“Whether in a petition under the Hindu Marriage Act valued at less than Rs. 1,000/- an appeal lies to the High Court or not?”

3. The reference came up before us for hearing on 21st November, 1963. After having heard the learned counsel for the parties, we were of the opinion that the appeal was incompetent in this Court and answered the question referred to us accordingly. We, however, did not give our reasons that day and reserved it for a future date. We are doing so now by means of this opinion.

4. Sec. 28 of the Act deals with appeals and decrees and provides that all decrees and orders made by the court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction are enforced, and appealed from under any law for the time being in force: provided that there shall be no appeal on the subject of costs only. Sec. 96, C.P.C provides for first appeals against decrees passed by a civil court and Sec. 104 read with Or. 43, R. 1, C.P.C provided for appeals against orders. It is the Bengal, Agra and Assam Civil Courts Act which deals with forums of appeal. Sec. 21 of that Act reads as follows:

“Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie—

(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees, and

(b) to the High Court in any other case.

(2) Save as aforesaid an appeal from a decree or order of a Munsif shall lie to the District Judge.

(3) Where the function of receiving any appeal which lie to the District Judge under sub-Sec. (1) or sub-Sec. (2) has been assigned to an Additional Judge, the appeals may be preferred to the Additional Judge.

(4) The High Court may, with the previous sanction of the Local Government, direct, by notification in the Official Gazette, that appeals lying to the District Judge under sub-Sec. (2) from all or any of the decrees or orders of any Munsif shall be preferred to the Court of such Civil Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly.” In the present case, admittedly, the valuation of the petition under Sec. 10 of the Act is Rs. 1,000. Consequently, an appeal would lie to the District Judge by virtue of the provisions of Sec. 28 of the Act read with Sec. 21 of the Bengal, Agra and Assam Civil Courts Act. Mr. Jagdish Kishore, who appeared for the appellant, contends that the appeal would lie to this Court and has in that connection made the following three submissions before us:

(1) The effect of Sec. 3(b) of the Act which defines a “District Court” is to include a Civil Judge also in that definition with the result that a Civil Judge is also a District Judge and consequently an appeal from order of a person having the status of District Judge for purposes of this case, cannot lie to the District Judge.

(2) Inasmuch as there is no provision in the Act for valuing a petition under Sec. 10 of the Act, any valuation made, has got to be ignored.

(3) The subject matter of a petition under Sec. 10 of the Act is incapable of valuation, with the result that the valuation fixed by a party cannot be conclusive of the matter and would not determine the forum of appeal.

5. Mr. Jagdish Kishore in this connection also contended that the decision of this Court in Paras Ram… v. Janki Bai Alias Savitri…. A.I.R 1961 All. 395 (F.B), which Yudhishtra Singh's case has purported to follow, is wrong, inasmuch as it has been erroneously held there that there are no rules dealing with the question of valuation. We will take the three submissions seriatim.

6. A petition under Sec. 10 of the Act has got to be made in a district court having jurisdiction in the matter. That follows both from Secs. 10 and 19 of the Act, the former provision saying that such a petition would lie to the District Court and the latter provision providing that “every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and the wife reside or last resided together.” Sec. 3(b) of the Act defines “district court” and reads:—

“district court” means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;”

7. In the present case, it is admitted that the State Government has specified, by means of a notification the Civil Judge, Dehra Dun as the ‘district court’ for that district. Mr. Jagdish Kishore contends that the effect of the notification is that the Civil Judge becomes the District Judge and consequently an appeal from one District Judge would not lie to another District Judge. In our judgment, the submission is based upon a mis-conception of the scheme and the provisions of Sec. 3(b) of the Act. That section does not define ‘District Judge’ but a ‘district court’ and merely because the Civil Judge, Dehra Dun becomes a ‘district court’ for purposes of the Act, does not mean that he becomes a District Judge in the sense in which that word is used in the Bengal, Agra and Assam Civil Courts Act. Section 3 of that Act provides for the classes of courts and reads:

“There shall be the following classes of civil courts, namely,—

(i) the court of the District Judge,

(ii) the court of the Additional Judge,

(iii) the court of the Civil Judge

(iv) the court of the Munsif.”

8. There can, therefore, be no manner of doubt that so far as the Bengal, Agra and Assam Civil Courts Act is concerned, there is a clear and vital distinction between a District Judge and a Civil Judge. It may be that by virtue of the special provisions of Sec. 3(b) of the Act, the functions of a “district court” under the Act may be performed by the District Judge as also by the Civil Judge but that would not equate the two and two expressions would not become synonyms. The district of Dehra Dun is a part of the judgeship of Saharanpur and there is one common District Judge for both the districts who sits at Saharanpur. Instances of Civil Judges and District Judges exercising the same jurisdiction are well known in several matters. As for example, insolvency proceedings, normally, a District Judge is the Insolvency Judge but powers can be conferred on the Civil Judge also and in that case an appeal would lie to the District Judge. In the Companies Act, liquidation proceedings can be taken both before the High Court as also before the District Judge under certain circumstances but so for no one has contended, and no one can reasonably contend, that the Civil Judge, while exercising the functions of an Insolvency Judge, becomes a District Judge and the District Judge, while performing the functions of the Company Judge becomes a High Court. Under these circumstances, we see no merit in the first submission of the learned counsel.

9. We now corner to the second and the third submissions of the learned counsel which are interconnected and can be disposed of together. By virtue of the provisions of Secs. 14 and 21 of the Act, this Court has framed certain rules. Rule 18 of those Rules reads as follows:

“Unless otherwise directed by the Court the costs in a petition under the Act, shall be taxed as if the proceedings were a suit.”

10. This rule obviously contemplates a valuation being given to every petition under Sec. 10 of the Act. Otherwise, the analogy of the suit would not be apt and it would also not be possible to fix costs. It is true that normally valuation has got to be fixed in order to determine the forum to which the cause shall be presented and with a view to decide the court fee payable. But these are not the only considerations responsible for the requirement of the subject matter of a cause being valued and in the present case both the forum and the court-fee is fixed, the former by the Act and the latter by the Court Fees Act. Section 21 provides that “subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (Act V of 1908).” If there is nothing to the contrary in the Act, it would appear that Or. 7, R. 1, C.P.C would apply in respect of a petition under this Act also. Sec. 20, however, reads:

“20. Contents and verification of petition.—

(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and shall state that there is no collusion between the petitioner and the other party to the marriage.

(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.”

11. This section clearly contemplates the petitions under the Act being treated as plaints at least for purposes of verification. Consequently, there is nothing in the Act which militates against the provisions of Or. 7, R. 1, C.P.C being applicable to petitions under the Act. Sec. 10 of the Act uses the words “may present a petition to the district court praying for a decree for judicial separation.” The use of the word “decree” also connotes that the proceedings under Sec. 10 of the Act are in the nature of a civil suit from which it can reasonably follow that the petition is in the nature of a plaint. Sec. 21 of the Act makes the applicability of the provisions of the Code of Civil Procedure subject to rules. This Court as already said earlier purporting to act under Secs. 14 and 21 of the Act, has framed rules. The opening words of Rule 5 are relevant for our purposes. They are:

“5. Contents of petitions. In addition to the particulars required to be given under Or. VII, Rule 1 of the Code and Sec. 20(1) of the Act, every petition for judicial separation, nullity of marriage and divorce shall contain the following particulars: ….”

12. This rule clearly makes the provisions of Or. 7, r. 1, C.P.C applicable to the petitions described in that rule. From this also it is clear that Or. 7, r. 1, C.P.C applies to a petition made under Sec. 10 of the Act. Sec. 28 of the Act, which we have already reproduced earlier, clearly provides that “all decrees and orders made……under this Act shall be enforced in a like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction are enforced.” This would also show that a proceeding under Sec. 10 or other sections of the Act is in the nature of a regular suit, with the result that the provisions of Or. 7, r. 1, C.P.C would be applicable on this ground also. Cl. (i) of Or. 7, r. 1, C.P.C requires “statement of the value of the subject matter for purposes of jurisdiction and court-fees so far as the case admits” to be given. Consequently, it is clear that the valuation of the subject matter has to be given in every petition under the Act. It is contended that the subject matter of a petition for judicial separation is incapable of being valued in terms of money. That does not, however, mean that no valuation can be fixed in such cases or in cases of restitution of conjugal rights. Actually in the latter class of cases valuation has always been fixed. Inasmuch as the court-fee on a petition under Sec. 10 of the Act is a fixed one (Rs. 37.50 np), the provisions of Sec. 9 of the Suits Valuation Act would apply. Rules have been framed for U.P also under that provision. We need not, however, go into this question at any length because admittedly in the case before us the subject matter has been valued at the figure of Rs. 1,000/-. Consequently, it is not a case where no valuation has been given. Once the subject matter has been valued at a certain figure, that figure would be determinative of the forum of appeal. We are, therefore, of the opinion that the second and the third submissions of the learned counsel are also without substance.

13. It is true that in the case of Paras Ram… v. Janki Bai Alias Savitri…., the learned Acting Chief Justice observed as follows:

“Under Art. 21-A of the Court Fees Act a fixed court fee of Rs. 37.50 n.P is payable on a petition under Sec. 10 of the Hindu Marriage Act; in other words 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 powers 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), C.P.C to state the value of the subject matter, did not state it, presumably he did not know how it was to be fixed.”

14. We are informed that Rules have been framed by this Court under Sec. 9 of the Suits Valuation Act and, therefore, the observations made above are not correct, but that would not render the decision incorrect. Under these circumstances, it appears to us that the appeal does not lie in this Court and would lie in the court of the District Judge, Saharanpur.

15. The view that we are taking was also taken in Paras Ram… v. Janki Bai Alias Savitri…. and in Yudhishtra Singh v. Batauna Devi.

16. These are the reasons for our decision dated 26th November, 1963.

17. Reference answered.

Major Dal Chand Singh Pratap v. Swam Pratap .

Judgment Summary (Jagdish Sahai, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Mr. Jagdish Kishore)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Major Dal Chand Singh Pratap v. Swam Pratap .

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