KAMUBEN BHIMABHAI v. LAKHABHAI VITHALBHAI — 1984 DIGILAW 110 (GUJ)

D. H. SHUKLA, J. ( 1 ) THE appellant Kamuben Bhimabhai was the opponent in Hindu Marriage Petition No. 13 of 1979 which was filed by the respondent Lakhabhai Vithalbhai for divorce under sec. 13 of the Hindu Marriage Act 1955 The divorce was sought for by the respond-ent on the ground of legal cruelty and desertion for a continuous period exceeding two years immediately preceding the presentation of the petition. The learned trial Judge did not grant the relief of divorce to the respondents but instead granted him a decree of judicial separation from the appellant. Hence the present appeal is filed by the appellant. ( 2 ) WHEN the matter was taken up for hearing Mr. G. D. Bhatt the learned Advocate for the respondent herein raised a preliminary objection to the effect that the order of judicial separation was passed by the Extra Assistant Judge Narol and that an appeal from the judgment and order of the Extra Assistant Judge would lie to the District Judge at Narol and not to the High Court. Mr. Bhatt submitted that the present appeal before this Court is not competent. Since the contention raised by Mr. Bhatt related to the question of jurisdiction I heard it as a preliminary issue without going into the merits of the matter. ( 3 ) MR. G. D. Bhatt started his submission by inviting my notice to paragraph 17 of the original application wherein it is stated that for the purpose of court-fees advocate fees and jurisdiction the valuation was made at Rs. 5 and a fixed court-fee stamp of Rs. 37-50 was utilised for the purpose of court-fees. Mr. Bhatt then referred me to secs. 16 24 25 and 26 of the Bombay Civil Courts Act 1869 Sec. 16 reads as under :"16 Original Jurisdiction of Assistant Judge.- The District Judge may refer to any Assistant Judge subordinate to him original suits of which the subject matter is (of any) amount or value (applications or references under Special Acts) and miscellaneous applications. The Assistant Judge shall have jurisdiction to try such suits and to dispose of such applications (or references ). Where the Assistant Judges decrees and orders in such cases are appealable the appeal shall lie to the District Judge or to the High Court according as the amount or value of the subject-matter does not exceed or exceeds twenty thousand rupees". Where the Assistant Judges decrees and orders in such cases are appealable the appeal shall lie to the District Judge or to the High Court according as the amount or value of the subject-matter does not exceed or exceeds twenty thousand rupees". ( 4 ) SEC. 24 of the said Act refers to jurisdiction of the Civil Judge (Senior Division) and jurisdiction of Civil Judge (Junior Division ). It is prescribed that the jurisdiction of a Civil Judge (Senior Division) extends to all original suits and proceedings of a civil nature and the jurisdiction of a Civil Judge (Junior Division) extends to all original suits and proceedings of a civil nature wherein the subject-matter does not exceed in amount or value twenty thousand rupees. Sec. 25 refers to the jurisdiction of Civil Judge (Senior Division) and states that a Civil Judge (Senior Division) in addition to his ordinary jurisdiction shall exercise a special jurisdiction in respect of such suits and proceedings of a civil nature as may arise within the local jurisdiction of the Courts in the district presided over by Civil Judges (Junior Division) and wherein the subject matter exceeds pecuniary jurisdiction of the Civil Judge (Junior Division) as defined by sec. 24. Section 26 of the said Act refers to appeal from the decision of a Senior Division Judge and states that in all suits decided by a Civil Judge of which the amount or value of the Subject-matter exceeds twenty thousand rupees the appeal from his decision shall be direct to the High Court. ( 5 ) MR. Bhatt then referred me to secs. 8 and 9 of the Suit Valuation Act 1887 Section 8 relates to those cases wherein court-fee value and jurisdiction value are to be the same. Sec. 9 is relevant for our purpose. It runs as under :"9 When the subject-matter of suits of any class other than suits mentioned in the Court-fees Act 1870 sec. 8 and 9 of the Suit Valuation Act 1887 Section 8 relates to those cases wherein court-fee value and jurisdiction value are to be the same. Sec. 9 is relevant for our purpose. It runs as under :"9 When the subject-matter of suits of any class other than suits mentioned in the Court-fees Act 1870 sec. 7 paragraphs v and vi and paragraph x clause (d) is such that in the opinion of the High Court it does not admit of being satisfactorily valued the High Court may with the previous sanction of the State Government direct that suits of that class shall for the purposes of the Court- fees Act 1870 and of this Act and any other enactment for the time being in force be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf". ( 6 ) MR. Bhatt submitted that the High Court of Gujarat has not framed any directions under sec. 9 and therefore the plaintiff or the applicant as the case may be is entitled to put his own valuation for the purpose of determining the jurisdiction under sec. 9 of the. Suits Valuation Act 1887 and this is precisely what the applicant has done in this case at paragraph 17 of his application. Mr. Bhatt submitted that under sec. 16 of the Bombay Civil Courts Act 1869 the appeal from the decision of the Assistant Judge would lie to the District Judge and not the High Court as the amount or value of the subject-matter as fixed by the applicant in his application does not exceed Rs. 20 0 Under sec. 3 (b) of the Hindu Marriage Act 1955 District Court is defined as under:"3 (b) 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 ) MR. Bhatt submitted that so far as the provisions of Hindu Marriage Act and the proceedings thereunder are concerned an Assistant Judge would indeed be a District Judge under sec. ( 7 ) MR. Bhatt submitted that so far as the provisions of Hindu Marriage Act and the proceedings thereunder are concerned an Assistant Judge would indeed be a District Judge under sec. 3 (b) of the Hindu Marriage Act but he would not be a District Judge for the purpose of determining the forum of appeal as that question does not fall within the ambit of the Hindu Marriage Act 1955 Sec. 28 of the Hindu Marriage Act is very clear on this point. Sec. 28 runs as under:"28 Appeals from decrees and orders- (1) All decrees made by the Court in any proceeding under this Act shall subject to the provisions of sub-sec. (3) be appealable as decrees of the Court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction. (2) Orders made by the Court in any proceeding under this Act under sec. 25 or sec. 26 shall subject to the provisions of sub-sec. (3) be appealable if they are not interim orders and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction". ( 8 ) UNDER sec. 28 (1) the appeal lies to the Court to which appeals ordinarily lie from the decision of the Court given in the exercise of its original civil jurisdiction. The forum of appeal is prescribed under sec. 16 of the Bombay Civil Courts Act 1869 and therefore for determining the forum of appeal we must make a reference to sec. 28 of the Hindu Marriage Act 1955 read with sec. 16 of the Bombay Civil Courts Act 1869 and that the forum would not be determined by the definition of district court under sec. 3 (b) of the Hindu Marriage Act 1955 ( 9 ) CONSIDERING the provisions of different Acts to which my attention was drawn by Mr. Bhatt it cannot be gainsaid that there is considerable merit in Mr. Bhatts submission. However I am not required to consider Mr. 3 (b) of the Hindu Marriage Act 1955 ( 9 ) CONSIDERING the provisions of different Acts to which my attention was drawn by Mr. Bhatt it cannot be gainsaid that there is considerable merit in Mr. Bhatts submission. However I am not required to consider Mr. Bhatts submission in greater details because this question has been fully considered and decided by a Division Bench in the case of GANGADHAR RAKHAMJI V. MANJULAL GANGADHAR A. I. R. 1960 BOMBAY 42 The appeal bearing No. 234 of 1958 was decided on 29 and therefore the ratio of the above judgment is binding to this Court. Gangadhar Rakhamjis case (supra) applies to the present case. The Division Bench has considered the submission placed before it that the Court of the Civil Judge (S. D.) was a District Court under the definition of the district court as given in sec. 3 (b) of the Hindu Marriage Act 1955 and that therefore the appeal would lie directly to the High Court but that argument was negatived by the Division Bench. ( 10 ) MR. D. G. Karia endeavoured to submit the same argument before me namely that the Court of the Assistant Judge is the District Court within the meaning of district court as given in sec. 3 (b) of the Hindu Marriage Act. But this argument has been fully considered in Gangadhar Rakhamjis case (supra) and it is not now necessary for me to repel the same argument by the same process of reasoning. ( 11 ) THE result therefore the preliminary objection raised by Mr. G. D. Bhatt is sustained. The present appeal filed in this Court is not maintainable and therefore I direct that the appeal memo and the papers filed with it be returned to the appellant for presentation to the proper Court and the memo of the Cross Objections be returned to the respondent. There shall be no order for costs of this appeal. Orders accordingly. .