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  • Hon'ble Mr. Justice Naba Kumar Das
  • Hon'ble Mr. Justice Prafulla Kishore Mohanti
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  • Hon'ble Mr. Justice Naba Kumar Das
  • Hon'ble Mr. Justice Prafulla Kishore Mohanti
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Smart Summary

Court Opinion Summary

Factual and Procedural Background

The defendant-husband (appellant) preferred an appeal against a decree of the learned Subordinate Judge which had allowed the wife's claim for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (the Act). The Section 9 application had been instituted and entertained by the Subordinate Judge on the basis of a State Government notification under Section 3(b) of the Act that conferred jurisdiction on every court of principal Subordinate Judge in Odisha to hear matters under the Act. The appellant valued the appeal at Rs. 100 and paid court-fee of Rs. 22.50 on the memorandum of appeal.

The respondent raised an objection to the maintainability of the appeal in the High Court, contending that because of the stated valuation the proper forum of appeal was the Court of the District Judge rather than this High Court. The appeal was filed on 22-4-1976; the Amending Act to Section 28 (Central Act 68 of 1976) came into force on 27-5-1976, so the Court examined maintainability under the unamended Section 28 in force at the time the appeal was presented.

Legal Issues Presented

  1. Whether the appeal against the decree of the Subordinate Judge in a proceeding under Section 9 of the Hindu Marriage Act is maintainable in this High Court or should be entertained by the Court of the District Judge given the valuation stated in the memorandum of appeal.
  2. How Section 28 of the Hindu Marriage Act (unamended at the relevant time) and the procedural law then in force (including provisions of the Bengal, Agra and Assam Civil Courts Act) determine the forum of appeal from decrees or orders passed by courts exercising jurisdiction under the Act.
  3. What effect a State Government notification under Section 3(b) (which confers jurisdiction on courts other than the principal civil court of original jurisdiction) has on the appellate forum, especially where the originating proceeding has been valued (or not valued).

Arguments of the Parties

Appellant's Arguments

  • The appellant contended that the appeal lay to this High Court and resisted the objection to maintainability.
  • The appellant relied on an earlier Orissa decision (Rama Kumari Meher v. Meenaketan Meher, AIR 1976 Orissa 32) in which it was indicated (in obiter) that a first appeal lies against the decree in a proceeding under Section 9 of the Act; the appellant pointed out that First Appeal No. 161 of 1973 was entertained in that Court.
  • The appeal was presented under the unamended Section 28 of the Act, and the appellant carried the appeal valued at Rs. 100 with payment of court-fee on the memorandum of appeal.

Respondent's Arguments

  • The respondent's counsel objected to maintainability in the High Court on the basis of the valuation disclosed in the memorandum of appeal (Rs. 100), arguing that under the procedural law in force (specifically Sub-section (1) of Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887) an appeal from a Subordinate Judge lies to the District Judge where the value of the original suit does not exceed Rs. 5,000.
  • The respondent pressed for an order that the appeal was not maintainable in this Court and should be presented to the proper forum (District Judge).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Rama Kumari Meher v. Meenaketan Meher, AIR 1976 Orissa 32 Indicated (in para. 22, item (iv)) that a first appeal is maintainable against a decree in a proceeding under Sections 9 to 13 of the Act. The Court treated that observation as obiter because the earlier decision concerned a different question (sufficiency of court-fee) and the forum question was not examined; the Court did not accept it as binding on the present issue.
Quinn v. Leathem, 1901 AC 495 (Lord Halsbury) General statement that judgments must be read with regard to their particular facts and that an authority is binding only for what it actually decides (caution about relying on obiter dicta). The Court invoked this principle to justify not treating the observation in the Orissa decision as authoritative for the forum question.
Paras Ram v. Janki Bai Alias Savitri, AIR 1961 All 395 (Full Bench, Allahabad) Holds that proceedings under Section 10 of the Act are to be treated as original suits; when valuation provisions do not apply because court-fee is fixed (not ad valorem), the residuary appellate power vests in the High Court and where subject-matter is not capable of pecuniary valuation appeal lies to the High Court. The Court relied on the Full Bench's reasoning to examine valuation rules and to note that where no valuation rule exists for proceedings under the Act, the appellate forum must be determined carefully; the Court observed that in Orissa the Rules do not fix valuation and so the Full Bench's reasoning had application.
Dal Chand Singh v. Swarn Pratap, AIR 1965 All 46 (Allahabad Division Bench) Considered a petition under Section 10 valued at Rs. 1,000 and held that the appeal was not maintainable before the High Court on account of such valuation. The Court cited it as an authority where the appellate forum was found to be the District Judge because of the stated valuation.
S. Kalyan Singh v. Shrimati Tej Kaur, AIR 1961 Punj 480 (Punjab High Court) Considered whether a first appeal lies to the High Court where the original proceeding had not been valued; followed a Madras decision and held that in absence of valuation the appeal lay to the High Court. The Court referenced this line of authority in surveying how different High Courts treated valuation and the forum question when no value was stated.
Valliammal Ammal v. Periaswami Udayar, AIR 1959 Mad 510 (Madras High Court) Discussed valuation consequences where the original proceeding had not been valued; extracted and applied reasoning to support appeal to High Court in absence of valuation. The Punjab Bench had relied on Madras; the Court cited that reliance when comparing authorities.
Gangadhar Rakhamaji v. Manjulal Gangadhar, AIR 1960 Bom 42 (Bombay High Court) Examined the definition of 'district court' under Section 3(b) and held that when a Civil Judge, Senior Division is notified under Section 3(b) as having jurisdiction under the Act, that court is a 'district court' within Section 3(b) for the Act, but not the principal civil court of original jurisdiction; appellate forum determined by the local civil courts statute (Bombay Civil Courts Act) which provided appeal to District Judge. The Court relied on this authority to support the proposition that a notified subordinate court is included within the Act's definition of 'district court' but that forum of appeal depends on the existing local law, often leading to appeals lying to the District Judge.

Court's Reasoning and Analysis

The Court proceeded by first identifying the statutory scheme and the factual matrix:

  1. Section 9 applications (restitution of conjugal rights) are to be made to the District Court as defined by Section 3(b) of the Hindu Marriage Act; the State Government notification had authorized every court of principal Subordinate Judge in Odisha to have jurisdiction in matters under the Act, and the Subordinate Judge had entertained the suit on that basis.
  2. Section 28 of the Act (as it stood before amendment by Central Act 68 of 1976) provided that decrees and orders made under the Act shall be enforced like decrees of courts in exercise of original civil jurisdiction and "may be appealed from under any law for the time being in force." The appeal before the Court was thus to be regulated by the procedural law then in force.
  3. The respondent relied on Section 21(1) of the Bengal, Agra and Assam Civil Courts Act, 1887, which provides that appeals from Subordinate Judges lie to the District Judge where the value of the original suit does not exceed Rs. 5,000 and to the High Court in other cases. The respondent argued that because the appeal was valued at Rs. 100, the District Judge was the proper forum.
  4. The Court examined prior authorities. It held that an observation in an earlier Orissa decision that a "first appeal" lies against decrees under Sections 9–13 was obiter for the reasons that the earlier case had addressed a different procedural question (sufficiency of court-fee) and had not examined the forum question. The Court relied on the established principle that obiter observations are not authoritative beyond their facts (citing Quinn v. Leathem).
  5. The Court then surveyed relevant High Court authorities (Allahabad Full Bench in Paras Ram, Allahabad Division Bench in Dal Chand Singh, Punjab and Madras authorities, and the Bombay decision in Gangadhar Rakhamaji). The Full Bench in Paras Ram had reasoned that where court-fee is fixed (not ad valorem) and Section 8 of the Suits Valuation Act does not apply, the value for jurisdiction must be determined under High Court rules; where no such rules exist and the subject-matter is not pecuniarily valu-able, the residuary appellate power vests in the High Court. The Court observed that in Orissa the local "Hindu Marriage and Divorce Rules of 1956" contained no provision fixing valuation, so the Full Bench's analysis was applicable insofar as Orissa lacked valuation rules.
  6. Balancing these authorities and the statutory framework, the Court articulated principles (guidelines) to determine the appellate forum for decrees under the Act where the originating court is not the principal civil court of original jurisdiction but a notified subordinate court under Section 3(b):
    • Courts other than the principal civil court of original jurisdiction which are conferred jurisdiction under Section 3(b) are not the "District Court proper" (i.e., not the principal civil court of original jurisdiction) and appeals from such courts do not automatically lie to the High Court irrespective of valuation;
    • The appellate forum is governed by the provisions of the Bengal, Agra and Assam Civil Courts Act: where the dispute is valued up to Rs. 5,000 the appeal lies to the District Judge; where valuation exceeds Rs. 5,000 the appeal lies to the High Court;
    • Where no valuation has been put and there is no material to indicate the appeal is valued at more than Rs. 5,000, the appeal lies to the District Judge (because first appeals to the High Court arise only when a stated valuation justifies such forum under the cited Act).
  7. Applying those guidelines to the present appeal, which was valued at Rs. 100, the Court concluded that the proper forum was the Court of the District Judge and not this High Court.

Holding and Implications

Final Holding: The High Court held that the present first appeal was not maintainable in this Court. Because the appeal was valued at Rs. 100, the appropriate appellate forum under the procedural law then in force (Bengal, Agra and Assam Civil Courts Act provisions) was the Court of the District Judge.

Direct Consequences:

  • The Court directed that the memorandum of appeal be returned to the filing Advocate for presentation in the proper Court (the Court of the District Judge).
  • The appeal as presented to this High Court was declared not maintainable and was remitted to be filed in the appropriate forum.

Broader Implications / Guidance Provided:

  • The Court articulated a clear guideline for appeals under the Hindu Marriage Act where the originating court is a notified subordinate court (under Section 3(b)): the appellate forum must be determined by reference to the local civil courts statute (here, the Bengal, Agra and Assam Civil Courts Act), with valuation thresholds (Rs. 5,000) determining whether the appeal lies to the District Judge or to the High Court.
  • Where valuation is absent and there is no material to show valuation exceeds the statutory threshold, the appeal will lie to the District Judge.

Order accordingly.

Show full summary ...

    Nrusingh Charan Nayak v. Smt. Hemant Kumari Nayak .

    1. This appeal has been carried by the defendant-husband against the decree of the learned Subordinate Judge allowing the wife's claim for restitution of conjugal rights. The application under Section 9 of the Hindu Marriage Act (hereinafter referred to as the ‘Act’) which was registered as a suit was not valued, but the appellant has valued the appeal at Rs. 100/- and has paid court-fee of Rs. 22.50 on the memorandum of appeal.

    2. Counsel for the respondent raised objection to the maintainability of the appeal in this Court in view of the disclosed valuation in the memorandum of appeal and pressed for an order to that effect being passed. Mr. Patra for the appellant, however, does not accept the objection and contends that the appeal lay to this Court. Section 9 of the Act provides that the application for restitution of conjugal rights has to be made to the District Court. District Court has been defined in Section 3 of the (b) of the Act to mean—

    “… … … 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.”

    3. The State Government in exercise of this power have notified:—

    “Law Department

    Notification

    The 30th November, 1966

    No. 8304-I.-J-30/66-Judl.- In exercise of the powers conferred by Cl. (b) of Section 3 of the Hindu Marriage Act, 1955 (25 of 1955), the State Government do hereby specify that every court of principal Subordinate Judge in the State of Orissa shall have jurisdiction in respect of the matters dealt with in the said Act.

    By order of the Governor

    B.K PATRA

    Secretary to Government.”

    4. The learned Subordinate Judge entertained the application under Section 9 of the Act on the basis of the aforesaid notification and proceeded to dispose of the case.

    5. Section 28 of the Act prior to its amendment by Central Act 68 of 1976 provided:—

    “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 the exercise of its original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force:

    Provided … … …”

    6. The Amending Act came into force with effect from May 27 of 1976, but this appeal was presented before this Court on 22-4-1976. Though there is no substantial difference between the original and the amended provisions so far as the present dispute is concerned, there can be no two opinions that the maintainability of the appeal has to be examined with reference to the unamended provision.

    7. This appeal has been carried in terms of Section 28 of the Act. There is no dispute that the impugned judgment and decree are open to appeal but the dispute is as to the forum of appeal - whether it would be this Court or the Court of the District Judge.

    8. Under Section 28 of the Act, the appeal is to be regulated by the law for the time being in force. Respondent's counsel has contended that under the procedural law in force, an appeal against the decree passed by a Subordinate Judge in a his valued up to Rs. 5,000/- lies to the District Judge and relies on the provisions of the Bengal, Agra and Assam Civil Courts Act of 1887. Sub-sec. (1) of Section 21 of the of that Act provides:—

    “Save as aforesaid, an appeal from a decree or order of a Subordinate 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.”

    9. The present appeal having been valued at Rs. 100/-, it is contended by the respondent that the forum of appeal is the court of the District Judge and not this Court.

    10. A Bench of this Court in the case of Rama Kumari Meher… v. Meenaketan Meher…., AIR 1976 Orissa 32, while dealing with a reference made by the Taxing Officer regarding sufficiency of court-fee on the memorandum of appeal, in para. 22 of the judgment indicated:—

    “We would sum up our conclusions thus:—

    (i) … … …

    (ii) Proceedings under Ss. 9 to 13 of the Act are suits.

    (iii) … … …

    (iv) Against decrees arising out of petitions under Sections 9 to 13 of the Act, first appeals are to be filed.

    (v) Against orders arising out of such proceedings, miscellaneous appeals lie.” Mr. Patra for the appellant places reliance on the observation in Item (iv) wherein it has been stated that a first appeal is maintainable against the decree in a proceeding under Section 9 of the Act and draws support for his conclusion from the fact that a first appeal being First Appeal No. 161 of 1973 was entertained in this Court.

    11. As we have already noticed, the dispute before the Court was as to what would be the appropriate court-fee payable on the memorandum of appeal and there was no dispute with reference to the forum. It is true that it has been indicated that a first appeal lies against the decree in a proceeding under Section 9 of the Act, but as the question was not examined, the observation must be taken to be obiter.

    12. It was pointed out by Lord Halsbury in Quinn v. Leathem, 1901 AC 495:—

    “… … … every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found …… … a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all… … …”

    13. This position has been approved by the Supreme Court on more than one occasion. We, therefore, feel that unaffected by the observation in the reported decision of this Court (AIR 1976 Orissa 32), the question posed should now be examined.

    14. This question came up for consideration before Full Bench of the Allahabad High Court in the case of Paras Ram… v. Janki Bai Alias Savitri…., AIR 1961 All 395. Delivering the decision of the Full Bench, Desai, Ag. C.J observed (at p. 396):—

    “A proceeding under Section 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 lies 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 purpose of jurisdiction and of court-fees (vide O. 7, R. 1 (i) of the CPC).

    A proceeding under the Hindu Marriage Act is governed by the Code of Civil Procedure (vide S. 21) and R. 5 of the Rules made by this Court in exercise of the powers conferred under Sections 14 and 21 of the Act. Section 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 Section 7 of the (v), (vi) and (ix),) in which ad valorem court-fee is payable. Under Article 21-A of the Court-fees Act a fixed court-fee of Rs. 37.50 is payable on a petition under Section 10 of the Hindu Marriage Act; in other words the court-fee on such a petition is not ad valorem court-fee and consequently Section 8 of the Suits Valuation Act is not applicable to the present case.

    When Section 8 of the does not apply, Section 9 of the 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 S. 9 have been brought to our notice. Consequently there is no law directing how the value of the subject-matter of a petition under S. 10 for the purpose of jurisdiction is to be fixed. The appellant, though bound by Section 21 of the Act read with O. 7, R. 1 (i) of the CPC to state the value of the subject-matter, did not state it, presumably because he did not know how it was to be fixed.

    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.”

    15. This conclusion was sought to be supported by certain precedents. We may point out that this Court has framed a set of Rules known as “Hindu Marriage and Divorce Rules of 1956”. No provision has, however, been made in these Rules regarding valuation of the suit. The observations of the Full Bench, therefore, have full application to cases under the Hindu Marriage Act arising within this State.

    16. A Division Bench of the Allahabad High Court in the case of Dal Chand Singh v. Swarn Pratap, AIR 1965 All 46, again considered a similar question. There the petition under Section 10 of the Act had been valued at Rs. 1,000/-. When the appeal came up before the learned Single Judge it was contended that the appeal lay to the District Judge and not to the High Court. The matter was examined afresh with reference to the provisions of the Act and the other procedural law. The Court came to hold that the appeal was not maintainable on account of this valuation before the High Court.

    17. A Bench of the Punjab High Court in the case of S. Kalyan Singh… v. Shrimati Tej Kaur….. AIR 1961 Punj 480, examined the tenability of a firstappeal against the decision in a proceeding under Section 10 of the Act. Theoriginal proceeding had not been valued and, therefore, it was contended thatthere was no material to hold that the valuation of the litigation was morethan Rs. 5,000/- so as to make a first appeal to the High Court competent. Thelearned Chief Justice relied upon a decision of the Madras High Court in the case of Valliammal Ammal v. Periaswami Udayar, AIR 1959 Mad 510 and extracted apassage from the judgment of Ramchandra Iyer, J., as the learned Judge thenwas, and in the facts of the case came to hold that in the absence of avaluation, the appeal lay to the High Court.

    18. A Bench of the Bombay High Court in the case of Gangadhar Rakhamaji… v. Manjulal Gangadhar,…., AIR 1960 Bom 42, examined the same question in the light of the definition of ‘District Court’ and a notification authorising the Civil Judge to entertain proceedings under the Act. The Court observed (at pp. 43-44):—

    “… … … Thus under the expression ‘district court’ as used in the Hindu Marriage Act comes all city civil courts, all courts of District Judges of the district and also other civil courts notified by the State Government in the manner provided. It is not correct to say, as contended by Mr. Bhasme, that any civil court in the district other than the principal civil court of original jurisdiction, when notified by the State Government as having jurisdiction in matters dealt with under the Hindu Marriage Act, becomes a ‘district court’ as meaning the principal civil court of original jurisdiction for the purposes of the Hindu Marriage Act by virtue of the definition given in S. 3 (b). It is the court to which petitions under the Hindu Marriage Act lie and which has jurisdiction in respect of matters dealt with in the Act. Since in the various provisions of the Act the court which has jurisdiction in matters dealt with in the said provisions is referred to as the ‘district court’ the inclusive part of the definition says that civil courts other than the principal civil court of original jurisdiction when notified by the Government will be included within the expression ‘district court’ as used in the Act. The Court of the Civil Judge, Senior Division, therefore, which is notified by the State Government as having jurisdiction in matters dealt with under the Hindu Marriage Act, is a ‘district court’ within the definition of Section 3(b) of the Hindu Marriage Act, but it is not the principal civil court of original jurisdiction, nor does it exercise its jurisdiction as such principal civil court of original jurisdiction. Section 28 of the Hindu Marriage Act leaves the forum of appeal to be determined under the law for the time being in force which, in the present case, is the Bombay Civil Courts Act. The forum of appeal from the order or decree of the Court of the Civil Judge, Senior Division, under the Bombay Civil Courts Act is the court of the District Judge of the District. In the present case, therefore, which was decided by the Civil Judge, Senior Division, the appeal lies to the Court of the District Judge and not to the High Court.”

    19. It is unnecessary in our view to multiply authorities. This matter was heard along with a batch of first appeals where the similar dispute regarding maintainability had been raised. A request was therefore, made at the Bar that the guideline may be indicated regarding maintainability of appeals under the Act. We would accordingly hold:—

    (1) Courts other than the principal Civil Court of original jurisdiction which by notification made under Section 3(b) of the Hindu Marriage Act are conferred with jurisdiction to entertain proceedings under the Act are not “District Court proper” and irrespective of valuation an appeal would not lie against decrees of such Courts to the High Court.

    (2) The appellate forum has to be determined in accordance with the provisions of the Bengal, Agra and Assam Civil Courts Act. Where the dispute is valued up to Rs. 5,000/-, the appeal would lie to the District Judge when the impugned decree is of a Court other than the principal Civil Court of original jurisdiction. In a case where the valuation is above Rs. 5,000/- and the decree is by a Court other than the principal Civil Court of original jurisdiction, the appeal would lie to the High Court; and

    (3) Where no valuation has been put in the proceeding and there is no material to indicate that the appeal is valued at more than Rs. 5,000/-, the appeal would also lie to the District Court and not to the High Court because under the provisions of the Bengal, Agra and Assam Civil Court Act, only on a stated valuation, first appeals lie to the High Court.

    20. On the aforesaidbasis, the present appeal where the valuation has been shown to be Rs. 100/-, the appeal would lie to the Court of the District Judge and the First Appeal isnot maintainable.

    21. We accordingly direct that the memorandum of appeal bereturned to the filing Advocate for presentation in proper Court.

    22. Order accordingly.

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    Comments

    Nrusingh Charan Nayak v. Smt. Hemant Kumari Nayak .
    (Feb 6, 1978)