Prithvirajsinhji Mansinghji vs Bai Shivprabhakumari on 11 August, 1959

    Prithvirajsinhji Mansinghji vs Bai Shivprabhakumari on 11/8/1959

JUDGMENT

   Gokhale, J.

   1. [His Lordship after stating the facts, proceeded.] Mr. Thakkar, learned
advocate appearing on behalf of opponent No. 1, has raised a preliminary
objection and contended that against the order passed by the learned trial Judge
an appeal would be competent to the District Court, and if an appeal is
competent, then, contends Mr. Thakkar, a revision application would nc't be
maintainable. The argument of Mr. Thakkar on this point briefly is that under
Section 28 of the Hindu Marriage Act, 1955 (to be hereafter referred to as the
Act) all decrees and orders made by the Court are expressly declared to be
appealable, and this being an order directing payment of interim maintenance
under Section 24, it would be appealabje and the appeal would lie to the
District Court. In support of his argument Mr. Thakkar relies on a recent
judgment of this Court Gngadhar Rakhamaji v. Manjula (1958) 61 Bom. L.R. 442. In
that case it was held that when a Court of Civil Judge, Senior Division,
notified by the State Government as having jurisdiction in respect of matters
dealt with in the Act, passes a decree in a petition under the Act, an appeal
against the decree lies to the District Court of the district and not to the
High Court. Now, that was a case where an appeal was filed to this Court against
the dismissal of the husband's petition for divorce or judicial separation under
the Act. The contention of Mr. Thakkar is that all orders passed by the Court of
Civil Judge, Senior Division, under the Act would stand on the same footing as
decrees, and appeals from such orders must lie to the District - Court. In order
to test the correctness of his argument, it is necessary to refer to the
provisions of Section 28 of the Act which runs as follows:-

     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 that there shall be no appeal on the subject of costs only.

   This section consists of two parts. The first part of the section deals with
the mode or manner of executing decrees and orders passed by the Court in any
proceeding and the section provides that such decrees and orders are to be
enforced in the same manner as the decrees and orders of the Court exercising
original civil jurisdiction. The second part of the section deals with the
question of appeals from such decrees and orders made by the Court in the
proceedings under the Act, and provides that all decrees and orders made by the
Court in any proceeding under the Act may be appealed from under any law for the
time being in force. Now, the short question that falls for consideration is the
interpretation to be put on the second part of the section which deals with
appeals from decrees and orders made by the Court under Section 28 of the Act.
The argument of Mr. Thakkar is that under Section 28 all decrees and orders made
by the Court in any proceeding under the Act are made subject to an appeal and
that the reference to any law for the time being in force is only for the
purpose of prescribing the procedure which will govern these appeals, and the
forum where the appeal is to be preferred. Thus, according to Mr. Thakkar, if an
order is passed by the Court of the Civil Judge, Senior Division, in any
proceeding under the Act, the question whether an appeal lies is not to be
determined by reference to any law for the time being in force, such as the Code
of Civil Procedure. The appeal is provided for by Section 28 itself and the
procedure governing that appeal will be the procedure laid down under the Code
of Civil Procedure and the law for the time being in force for determining the
forum of the appeal is the Bombay Civil Courts Act, as held in Gangadhar
Rakhamaji v. Manjula already referred to above. This argument of Mr. Thakkar,
though plausible, cannot be accepted. As I have already indicated, in Gangadhar
Rakhamaji v. Manjula, the appeal was against a decree dismissing a petition for
divorce or judicial separation and this Court held that "the law for the time
being in force" for determining the forum of appeal was the Bombay Civil Courts
Act and, therefore, the appeal lay to the District Court and an appeal was not
competent to the High Court. Therefore, that case can be of no assistance to Mr.
Thakkar so far as this preliminary objection is concerned. The words "under any
law for the time being in force" apply obviously to both the parts of Section
28. Under the first part, all decrees and orders made by the Court in any
proceeding under the Act are to be enforced in like manner as the decrees and
orders of the Court made in exercise of the original civil jurisdiction are
enforced under any law for the time being in force; and that has obviously a
reference to the Code of Civil Procedure. The procedure to be applied in
enforcing the decrees and orders made by the Court under the Act is to be the
procedure relating to execution of decrees and orders contained in the Code of
Civil Procedure. If that be so, in my judgment, the question whether an appeal
lies from an order passed by the Court under the Act must be also determined by
the provisions of the Code of Civil Procedure. The proviso to Section 28 says
that there shall be no appeal on the subject of costs only. To that extent
Section 28 provides an exception, and against an order of costs only no appeal
will be competent. Under Section 21 of the Act, subject to the other provisions
contained in the Act and to such rules as the High Court may make in this
behalf, all proceedings under the Act shall be regulated, as far as may be, by
the Code of Civil Procedure, 1908. An appeal, it is well settled, is a
continuation of the original proceedings. The Legislature having already
provided that the Code of Civil Procedure is to govern all proceedings under the
Act, if Mr. Thakkar's argument were to be accepted it would mean that the
Legislature again emphasised in Section 28 that the procedure governing the
appeals would be that under the Code of Civil Procedure. In my view, what the
Legislature intended by referring to any law for the time being in force was
that the appealability of decrees and orders should be determined by the
provisions of the Code of Civil Procedure. In my judgment, Section 28 of the Act
does not provide for an appeal against every order made by the Court in the
proceedings under the Act, but against only such orders which fall within the
definition of decrees under Section 2(2) of the Civil Procedure Code or with
regard to which an appeal is provided under the Code.

   2. The order passed by the trial Court is an order granting interim relief
under Section 24 of the Act and it will have to be distinguished from an order
granting permanent alimony and maintenance, which the Court can pass under
Section 25. Such an order cannot amount to a decree as denned in Section 2(2) of
the Civil Procedure Code and, therefore, would not be appealable as a decree.
Mr. Thakkar concedes, and rightly, that the present order does not fall within
Section 104 nor under Order XLIII, Rule 1, of the Code. It would not be,
therefore, appealable under the Civil Procedure Code. But Mr. Thakkar argues
that it is appealable by virtue of Section 28 of the Act. If this argument were
to be accepted, it would mean that all interlocutory orders passed by the Court
in any proceeding under the Act, which proceeding is to be regulated by the Code
of Civil Procedure by virtue of Section 21 of the Act, would be appealable even
though such orders may not be appealable under the Code itself. Such a result
could not have been intended by the Legislature.

   3. In support of his contention, Mr. Thakkar has invited my attention to two
rulings of the Lahore High Court. In Chamarette v. Chamarette [1937] A.I.R. Lah.
176, during certain proceedings under the Indian Divorce Act pending in the
Court of an Additional District Judge, the Court had held that the husband's
evidence relating to the illegitimacy of his two children was inadmissible. The
husband appealed under Section 55 of the Indian Divorce Act. The opposite party
contended that the appeal was not competent and it was held by the Lahore High
Court that an appeal lay from such an order under Section 55 of the Act. This
was a decision of a single Judge. Now, Section 55 of the Indian Divorce Act
provides that all decrees and orders made by the Court in any suit or proceeding
under this Act shall be enforced and may be appealed from, in the 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 the laws, rules and
orders for the time being in force. It is not necessary to refer to the provisos
to this section, though the second proviso is similar to the proviso under
Section 28 of the Act viz., that there shall be no appeal on the subject of
costs only. It is true that the wording of Section 55 of the Indian Divorce Act
is similar to the wording of Section 28 of the Act and the decision of the
Lahore High Court would undoubtedly favour the construction which Mr. Thakkar
urges should be placed on Section 28. But in deciding that an appeal lay from
the order of the Additional District Judge holding the husband's evidence to be
inadmissible, the learned Judge of the Lahore High Court observed as follows (P.
177) :

     ...There may be some orders of a formal character against which an appeal
would not lie, but this is an order which was passed by the Court after hearing
the arguments of the parties, and I am inclined to think that this appeal is
competent.

   I fail to see how such a distinction can be drawn once it is held that an
appeal lies under Section 55 itself which must necessarily mean that all orders
passed under Section 55 would be appealable. The second decision of the Lahore
High Court on which Mr. Thakkar relies is Millicans v. Millicans [1937] A.I.R.
Lah. 862, which is also a decision of a single Judge. In that case, the District
Judge of Delhi had granted a decree subject to confirmation by the High Court
dissolving a certain marriage and the learned District Judge had also passed an
order in the suit directing the husband to pay to the wife an amount of Rs. 120
and given the custody of the three children of the parties to the wife. An
appeal was filed against the decree and an objection was raised that no appeal
lay cither against the decree dissolving the marriage or the order regarding the
custody of the children and their maintenance. But it was admitted on behalf of
the appellant that no appeal lay against the decree. The only question which was
agitated before the Lahore High Court by the appellant was as' regards the
amount fixed by an order of the District Judge of Delhi granting maintenance
allowance for the children. It was held by Mr. Justice Cold-stream that the
language of Section 55 of the Divorce Act provides expressly for an appeal from
all orders passed by the District Judge. According to him, the words "in the
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 the
laws, rules and orders for the time being in force" in Section 55 of the Divorce
Act must be held to apply only to the procedure to be followed and the Court to
which the appeal is filed. This decision is undoubtedly in favour of Mr.
Thakkar's contention. But, with respect, it appears that the attention of the
learned Judge was not drawn to Section 45 of the Divorce Act, which provides
that the procedure under the Code of Civil Procedure is to apply to all the
proceedings under that Act, which is similar to Section 21 of the Act. In my
judgment, therefore, Section 28 of the Act cannot be construed as pro-viding for
appeals against all orders of the Court in any proceeding under the' Act as
contended by Mr. Thakkar. Under Section 28 of the Act only such orders us are
made by the Court in any proceeding under the Act against which an appeal is
provided in the Code of Civil Procedure would be appealable orders, and not
others.

   4. Mr. Thakkar also invited my attention to the case of Kamala Shama v. Shama
in which a Division Bench of this Court decided an appeal under Section 24 of
the Act, where it was held that under Section 24 the parties standing in need of
relief, whether the husband or the wife, can obtain relief, irrespective of the
fact whether he or she had initiated the proceeding or not. In that case, the
wife had filed an application under Section 24 claiming Rs. 50 per month as
maintenance allowance and costs of the proceedings from the husband who had
filed a petition under Section 12 of the Act for a decree of nullity of his
marriage. The trial Judge had dismissed that application for interim relief and
the wife filed an appeal to this Court before the Nagpur Bench and that appeal
was numbered as Misc. (First) Appeal No. 197 of 1956. Now, undoubtedly in that
case the appeal was entertained against the order of the trial Court dismissing
the application for interim maintenance filed by the wife. But the question as
to whether an appeal was competent was not raised in that case nor was it
decided. In my view, therefore, that case also will not be of any assistance to
Mr. Thakkar.

   5. Mr. Thakkar also referred me to a decision in Annapurnamma v. Ramakrishna
, where the Andhra Pradesh High Court was dealing with a Letters Patent Appeal
against an order of a single Judge granting the wife's petition for interim
maintenance under Section 24 of the Act and the question was whether the
appellate Court had power to make an interim order under Section 24 of the Act
in the appeal by the wife against an order for dissolution of marriage obtained
by the husband. It was observed by K. Subba Rao, C.J., that Section 28 conferred
a right of appeal by reference to any law, and that the right of appeal was one
conferred under the Act and, therefore, it was a proceeding under the Act.
Explaining this, he observed (p. 49) :-

     That proceeding starts in the original Court and continues till it is
disposed of by the appellate Court. It is a common place that an appeal is a
continuation of the' original proceeding. The fact that an appeal lies under the
Civil Procedure Code against, an order in a proceeding under the Act, will not
make the appeal any-the-less a proceeding under the Act, for, the appeal also
relates to the adjudication in respect of the rights conferred tinder the Act.

   That is why it was held that the appellate Court had jurisdiction to make an
order under Section 24. This decision does not, in my opinion, help Mr. Thakkar.
On the contrary, it shows that K. Subba Rao C.J. referred to Section 28
conferring a right of appeal by reference to any law and stated that an appeal
lay under the Civil Procedure Code against an order in a proceeding under the
Act and consequently the appeal also would be a proceeding under the Act.

   6. I am of the view, therefore, that the preliminary objection raised by Mr.
Thakkar against the maintainability of this revision application must fail.

   7. On the merits, Mr. Patel, learned advocate appearing on behalf of the
petitioner, has raised two objections to the order passed by the learned trial
Judge. In the first instance, he says that no proper opportunity was given to
the petitioner to place before the trial Court all the facts about his financial
position. I have already indicated some of the irregularities which seem to
affect the record in this case. It appears from the allegations in the petition,
which are supported by an affidavit of the learned advocate appearing on behalf
of opponent No. 1 in the trial Court, that when search was taken on April 6,
1959, and also on April 29, 1959, some documents were not on record. It is
apparent from the learned trial Judge's order that he relied on the facts
contained in exh. 65, the additional affidavit filed on behalf of opponent No.
1, Mr. Patel contends that that affidavit was not on the record when opponent
No. 1's advocate took a search on April 29, 1959, though that affidavit appears
to be of the date April 6, 1959, and seems to have been filed on April 6, 1959.
It is significant that there is no mention of exh. 65 in the roznama of the
case. As already indicated, the endorsement on exh. 65 in red ink does not bear
the signature or the initials of the Civil Judge, and it is Mr. Patel's
allegation that exh. 65 though it is dated April 6, 1959, was not filed on that
day but must have been placed on the record some time thereafter. In view of
what the-petitioner alleges, a part of which appears to be borne out by the
record, I propose to remand this case to the trial Court for a fresh hearing of
the application made by opponent No. 1 for interim maintenance. The trial Court
on receipt of the papers must give an opportunity to the petitioner to answer
the allegations made in exh. 65. Both the parties will be allowed to lead such
evidence as they deem proper in support of their respective cases on the
application (exh. 5).

   8. The other objection raised to the order by Mr. Patel is that the trial
Court had no jurisdiction to order that in case the petitioner failed to pay the
arrears of maintenance upto date and Rs. 300 for expenses of the proceedings on
or before June 15, 1959, his defence was to be struck off. This, says Mr. Patel,
is an order not warranted by the provisions of the Code of Civil Procedure.
Under Order XI, Rule 21, of the Code the Court has the power to strike off
defences in case of failure of a party to comply with any order to answer
interrogatories, or for discovery or inspection of documents. An order passed
under Order XI, v. 21, is appealable under Order XLIII, Rule 1(f). Obviously the
present order is not an order under Order XI, Rule 21. It is contended by Mr.
Thakkar that the Court can strike off defences by virtue of its inherent power
under Section 151 of the Code. Now, in the present case, the order that the
petitioner's defence will be struck off if he did not carry out the trial
Court's order on or before June 15, 1959, is contained in the order for interim
maintenance itself. There is no question of any contumacious conduct on the part
of the petitioner. In Codd v. Codd (1923) 25 Bom. L.R. 339. Mr. Justice Marten,
as he then was, expressed his view that if, in a matrimonial suit, the husband
is ordered by the Court to give security for the wife's costs and fails to give
it, then where the husband is the petitioner his petition should be stayed and
not dismissed; and where the wife is the petitioner, the husband's defence
should not be struck out but he should be proceeded against for contempt if he
is proved to be able to pay but contumaciously refuses to do so. Normally,
therefore, it appears that the Court in the exercise of its matrimonial
jurisdiction cannot order that the defence of a party should be struck off for
failure to pay interim maintenance unless the refusal is contumacious. As I have
already indicated, the question of any contumacious conduct on the part of the
petitioner has not arisen at the present stage. In Tara Singh v. Jaipal Singh
[1946] 1 Cal. 604, it was held by the Calcutta High) Court that where the
husband was not guilty of contempt of Court, his failure to comply with the
order of the Court for payment of alimony did not disentitle him from being
heard on a petition for divorce by the wife. Mr. Thakkar relied on a decision of
the Madras High Court, Mahalingam Pillai v. Amsavalli [1956] 2 M.L.J. 289, where
it was observed that the orders granting alimony pendente lite could not only be
executed by the wife but where these payments are made a condition precedent for
the taking up of the trial of the petition or hearing of an appeal therefrom, if
these orders are not complied with, the petition or appeal can be dismissed.
Now, the actual facts in the Madras case were that there was an order of Mr.
Justice Basheer Ahmed Sayeed directing the husband to pay alimony pendente lite
and that order had been contumaciously disobeyed by the husband and it was urged
in appeal on behalf of the wife that the appeal should be straightway dismissed.
That was not accepted by the appellate Court which decided to give an
opportunity to the husband to pay up, within a reasonable time, because the
payment had not been made a condition precedent for the hearing of the appeal. I
do not think that the observations of their Lordships of the Madras High Court
in that case would affect the general principle which has been laid down by Mr.
Justice Marten in Codd v. Codd referred to above.

   9. As I propose to set aside the order of the trial Court, Mr. Thakkar has
requested me that I should give some relief to opponent No. 1 pending the
hearing of her application for interim maintenance and costs of the proceedings
in the trial Court. Mr. Patel agrees that his client would deposit in the trial
Court, within a month from to-day, an amount of Rs. 300 which may be withdrawn
by opponent No. 1, without any security and that amount would be taken into
account in any final order that may be passed in the application of opponent No.
1.

   10. I, therefore, set aside the order passed by the learned trial Judge and
direct the trial Court to hear the application (exh. 5) of opponent No. 1 after
giving an opportunity to the petitioner to answer the allegations in exh. 65 and
an opportunity to both the parties to lead such evidence as they think proper in
support of their respective cases. An amount of Rs. 300 should be deposited by
the petitioner in the trial Court, within one month from today, and opponent No.
1 will be at liberty to withdraw that amount without any security and that
amount will be taken into account at the time final orders are passed on exh. 5.
Both the parties should be allowed to lead evidence at the hearing of exh. 5
before the end of September 1959. Liberty to apply to opponent No. 1 in case the
petitioner does not pay Rs. 300 within the time specified. The application (exh.
5) will be disposed of by the end of September 1959. Costs of this revision
application will be costs in the proceedings.