Velayudha Panicker Padmanabha Panicker v. Lakshmi Amma Chandramathi Amma
1954-06-16
M.S.MENON, P.K.SUBRAMONIA IYER
body1954
DigiLaw.ai
ORDER : P.K. Subramonia Iyer, J. This revision is directed against the order of the court below allowing the application of the respondent-counter-petitioner to set aside an order of dissolution of marriage passed ex-parte against her. 2. Two points were raised before us, first that the court below had no jurisdiction to entertain the application as the only remedy available to her is by way of appeal against the order of dissolution to the High Court. Reliance was placed upon sub-s. 4 of S. 7 of the Travancore Nair Act, II of 1100, which provides: “Subject to the provisions of the Code of Civil Procedure the Rules framed by Government under sub-s. (8) of this section, and the provisions of the Limitation Regulation applicable to appeals from original decrees, an appeal shall lie to the High Court at the instance of any aggrieved party from any decision of the District Munsiff relating to dissolution, or award, or both, except when it relates exclusively to costs and when an appeal is preferred court fee shall be levied on the value of the subject-matter in appeal under the Court Fees Regulation.” The 6th sub-section enacts: “Save in so far as they may be inconsistent with anything contained in this section or with rules framed by Government under sub-s. (8) of this section, the provisions of the Code of Civil Procedure relating to the trial of a suit shall apply to all proceedings under this section.” The relevant rule is the 18th which reads as follows:- “Save in so far as it may be inconsistent with anything contained in the Regulation or these Rules, the law relating to the procedure of Civil Courts in the trial of civil suits shall apply to all proceedings in an enquiry.” We are not able to find anything inconsistent between the provisions of the Code of Civil Procedure contained in O. IX which is the relevant provision with any of the provisions contained in the Act or the Rules framed thereunder. The argument of learned counsel for the petitioner is that the remedy of appeal provided in the 4th sub-section is an exclusive remedy. The argument gains no support from the language of any provision of the Act or the Rules.
The argument of learned counsel for the petitioner is that the remedy of appeal provided in the 4th sub-section is an exclusive remedy. The argument gains no support from the language of any provision of the Act or the Rules. A remedy by way of appeal against an order or decree co-exists and can co-exist with a remedy by way of an application under O. IX of the Code of Civil Procedure. Our attention was drawn to two decisions reported in Velayudhan Pillai Narayana Pillai v. Narayani Amma Gouri Amma 28 T.L.J. 1 and Janaki Amma Rajamma v. Krishna Pillai Narayana Pillai 1953 K.L.T. 209. There is nothing in either of those decisions opposed to the view that we have taken. 3. The second point urged by learned counsel for the petitioner is that the order of the Munsiff is perverse. The summons to the respondent purports to have been served by peon Gopala Pillai examined as D.W. 1. The respondent’s version in the court below which was accepted by that court is that Gopala Pillai had nothing to do with the summons in the matter of its service but that one peon Rama Panicker manoeuvred and brought about a false service with two attesting witnesses. Both the attestors were examined. One of them does not admit his signature in the attestation which consisted of letters in English which language is altogether unknown to him. The other attestor swore that he happened to effect the attestation in the house of the said Rama Panicker and at his instance. The version of these two witnesses was accepted by the court below as it was probabilised by the evidence of Gopala Pillai who created the impression upon the court below that he had not anything to do with the service of the summons. We are not able to find that the conclusion reached by the court below is otherwise than correct. It cannot, therefore, be characterised as wrong, much less as perverse. 4. The result is that the revision fails and is dismissed with costs. Dismissed.