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2006 DIGILAW 257 (MP)

Aruna Kumari v. Ambrish Kumar Sengar

2006-02-15

A.P.SHRIVASTAVA, S.S.JHA

body2006
JUDGMENT Jha, J. -- 1. Appellant Arona Kumari was married to respondent Dr. Ambrish Kumar Sengar on 14.2.1993. A child. named Shashank was born within the wedlock on 26.9.1994. On account of some matrimonial dispute, appellant was living with her parents at Vasco de Gama, Goa, alongwith her son. Ex parte decree for divorce was passed in favour of the respondent by the Court at Udaipur in the State of Rajasthan. Respondent claimed that the Court of Udaipur has found that the husband and wife had last resided at Udaipur in the year 1998. After the said ex parte decree, respondent entered into second marriage. Respondent then submitted an application under section 25 of the Guardians and Wards Act read with S. 6 of the Hindu Minority and Guardianship Act for custody of the child Shashank in the Court of VII Additional District Judge, Gwalior. The then Seventh Additional District Judge, Gwalior passed an ex parte order dated 27.4.2002 and allowed the application under section 25 of the Guardians and Wards Act in favour of the respondent directing delivery of custody of the son to the respondent. Having learnt that said ex parte decree has been passed, appellant filed an application under Order IX Rule 13 CPC for setting aside the ex parte decree on 4.9.2002 before the Court of VII Additional District Judge, Gwalior. Said application was returned to the appellant for presentation before the Family Court on 7.10.2002. Then application was filed before the Family Court setting out the grounds for setting aside the ex parte decree specifically alleging that notices were not served upon the appellant. Said application has been dismissed by the Family Court on the ground that the provisions of Order IX Rule 13 CPC are not applicable to the proceedings under Guardians and Wards Act. After rejection of the application, appellant has preferred this appeal before this Court under section 19 of the Family Courts Act praying therein that the application under Order IX Rule 13 CPC before the Family Court was maintainable and order passed by the Family Court deserves to be set aside. 2. After rejection of the application, appellant has preferred this appeal before this Court under section 19 of the Family Courts Act praying therein that the application under Order IX Rule 13 CPC before the Family Court was maintainable and order passed by the Family Court deserves to be set aside. 2. Objections were reaised by the respondent that the order passed under section 25 of the Guardians and Wards Act is appeal able under section 47 of the Guardians and Wards Act and since the order is not a decree, therefore, application under Order IX Rule 13 CPC is not maintainable. Family Court dismissed the application holding therein that since no decree is passed, therefore, application under Order IX Rule 13 CPC is not maintainable. 3. Question involved in this case is when an ex parte order under the provisions of Guardians and Wards Act is passed; whether provisions of Order IX Rule 13 of the Code of Civil Procedure are applicable. 4. Various High Courts have taken a view that Court under the Court of Wards Act is a Court of Civil jurisdiction and, therefore, provisions of "Code of Civil Procedure will be applicable. Section 141 CPC specifically ways down that the Code will be applicable to every procedure and proceeding before the Court of Civil jurisdiction. 5. Section 141 CPC is reproduced below: "S. 141 -- Miscellaneous Proceedings -- The procedure provided in this Code in. regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction." Language of section 141 CPC is clear and specific. It provides that the procedure provided in this Code in regards to suits shall be followed as Jar as it can be made applicable in all proceedings in any Court of Civil jurisdiction. Thus, the Code will be applicable to any Court of Civil jurisdiction. 6. Section 4(4) of the Guardians and Wards Act, 1890 define District Court. Section 4(4) is reproduced below: '''District Court' .has the meaning assigned to that expression in the Code of Civil Procedure and includes a High Court in the exercise of its ordinary original civil jurisdiction." Thus, the District Court which includes the High Court has the meaning assigned to that expression in the Code of Civil Procedure in the exercise of its ordinary original civil jurisdiction. "Court" is defined under section 4(5). "Court" is defined under section 4(5). Thus, on bare reading of the definition, it is apparent that the Court which exercises the powers under Guardian and Wards Act is a Court of original civil jurisdiction. 7. While interpreting the scope of section 141 CPC Full Bench of this Court in the case of Nathu Prasad v. Kapurchand [ 1976 JLJ 340 = 1976 MPLJ 306 ] has held in para 8 as under: " ........There is no justification to read any such restrictive words in section 141. The section is in general terms and the expression 'as far as it can be made applicable' provides for the extent to which the section can be applied to a civil proceeding other than a suit. The expression 'all proceedings' is of a very wide connotation and to restrict it to a proceeding, which is original in nature and wholly independent of a suit will be doing violence to the language of the section ...." It has also been held that section 141 CPC will be applicable to a civil proceeding other than a suit; the expression "all proceedings" in the section is of wide connotation and to restrict it to a proceeding which is original in nature and wholly independent of a suit would be doing violence to the language of the section. Object and purpose of section 141 CPC is that for economy of words, it was unnecessary to repeat the whole of the procedure in providing for procedure for an application. 8. While interpreting the words "proceedings in any Court of Civil jurisdiction", it has been held by the Privy Council that any Court of civil jurisdiction includes not only the "original matters' in the nature of suits, but proceedings in probate, guardianship and so forth or divorce, or insolvency proceedings in the case of Thakur Prasad v. Fakir-ullah [22IA 44] and Sarat Krishna Base v. Bisweswar Mitra [(1927) ILR Cal. 534], long back in the case of Fakirullah v. Thakur Prasad [(1890) 12 All 179], it was held that independently of the explanation, section 647 (now S. 141) did not apply to applications for execution, but only to original matters in the nature of suits, such as proceedings in probates, guardianship, and so forth, thus, overruling the Allahabad and Bombay cases. Apex Court held that section 141 CPC is not applicable to the execution proceedings in Bhushayya v. Ramakrishnayya [ AIR 1962 SC 1886 ]. At the same time, it had further held that though the section does not apply to the execution proceedings. but the procedure provided in the Code in regard to suit does not apply to applications for execution of decrees, but will be applicable to other proceedings in any Court of Civil jurisdiction. Judgment of Thatkur Prasad (supra) had laid down that the provision apply to original matters in the nature of suits such as proceedings in probate, guardianship and so forth. However, the apex Court in the case of Ram Chandra Aggarwal v. State of U.P. ( AIR 1966 SC 1888 ] considered the question whether the proceedings before civil Court arising out of reference under section 146(1) CrPC is a civil proceeding as contemplated by the section. In dealing with the question, the apex Court observed that the expression "civil proceeding" in this section is not necessarily confined to original proceedings like suits or application for appointment of guardian, etc. but that it applies to the proceeding which is not original proceeding. Thus, the apex Court has held that this procedure is not only applicable to the proceedings for appointment of guardian but also to the proceeding which is not the original proceeding. 9. In the case of M/s. Chandra Wati v. lagan Nath Singh [AIR 1925 Lahore 489] it is held that application under section 12 of the Guardian and Wards Act. 1890 is a proceeding in a Court of civil jurisdiction, hence, receiver may be appointed in such a proceeding under Order XL Rule 1 CPC. 10. Apex Court in the case of Munhi Ram v. Banwari Lal [ AIR 1962 SC 903 ] has held that the' Code of Civil Procedure is applicable to the proceedings under Arbitration Act, 1940. . 11. In the case of Virbala and others v. Shah Harichand Ratanchand [AIR 1973 Gujarat 1] it is held that proceedings under Guardian and Wards Act are miscellaneous proceedings in a Court of civil jurisdiction within the meaning of section 141 of the Code so as to attract the procedure provided in that Code as far as it can be made applicable. It is further held that where a Court having no territorial jurisdiction to entertain an application under section 25 of the Act passes an order for the custody of the minor, the order can be set aside in appeal under section 47 (c) of the Act and the trial Court can be directed to return the application for presentation to the proper Court. 12. Division Bench of Calcutta High Court in the case of Ahmadar Rahaman Chaudhari v. Jaminiranjan Barua and others [AIR 1930 Calcutta 185] has held that section 12 of the Guardian and Wards Act empowers the court to make such orders for the protection of property of a minor as it thinks fit. Discretion which is conferred upon the Court by this Act is wide one and there can be no doubt that it has power to appoint a receiver and the receiver when appointed must having regard to the provisions of section 141 CPC be deemed to have all the powers of a receiver under the Code. Those powers would include the power to sell where the adoption of such a course is deemed to be necessary for the protection of the interests of the minor. 13. In the case of Dwarka Das v. Pyare Lal [AIR 1930 Allahabad 873] it is held that principle underlying S. 21 CPC applies also to an application for setting aside an ex parte decree, by virtue of the provisions of section 141 CPC. 14. In the case of Munshi Ram (supra) the apex Court while considering the scope of section 141 and applicability of the provisions of Order XXIII Rule 3 CPC in a proceedings under Arbitration Act, 1940 has held that the provisions of section 141 CPC are applicable to the proceedings under the Arbitration Act, 1940 and parties have power to compromise under Order XXIII Rule 3 CPC. 15. In the case of Jairam Gurnani v. Smt. Shanta Gurnani [ILR (1979) I Delhi 99] it was held that Code of Civil Procedure is applicable to the provisions under Hindu Minority and Guardianship Act, 1956 and Guardians and Wards Act, 1890. It is held that Guardians and Wards Act makes some provisions which are procedural in nature but in all other matters on which it is silent. It is held that Guardians and Wards Act makes some provisions which are procedural in nature but in all other matters on which it is silent. procedure provided in the Code has to be followed in consequence of section 4 and 141 of the Code of Civil Procedure, following the judgment of this Court in Deokishan and others v. Asaram [AIR 1933 Nag. 62]. 16. In the case of Bastar Transport and Trading Co. v. Court of Wards [AIR 1955 Nagpur 78] it is held that the procedure provided in the Code of Civil Procedure has to be followed so far as it can be made applicable in all proceedings in any Court of civil jurisdiction which includes the proceedings under the Companies Act. 17. In the case of Chandra Wati (supra) it is held that a Judge before whom an application for the appointment of a guardian is pending has power to appoint a receiver but said power is to be exercised under the Code of Civil Procedure. It is held that by reason of S. 141 CPC provisions of Order XL Rule 1 CPC could be utilised for the purpose of appointing a receiver. 18. In Ram Chandra Aggarwal [supra) scope of section 141 CPC has been considered. The contention was that a proceeding upon a reference under S. 146(1) entertained by a civil Court not being an original proceeding the provisions of S. 141 CPC are not attracted and that, therefore, those provisions of the Civil Procedure Code which relates to suits are not applicable to proceeding undertaken by a civil Court upon a reference to it under section 146(1) Code of Criminal procedure. Who adverting to the expression 'civil proceeding' in section 141 it is held the is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian, etc., but that it applies also to a proceeding which is not an original proceeding. 19. Who adverting to the expression 'civil proceeding' in section 141 it is held the is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian, etc., but that it applies also to a proceeding which is not an original proceeding. 19. In the case of Rabubhai Muljibhai Patel v. Nandlal Khodidas Barot [ AIR 1974 SC 2105 ] words "as far as it can be made applicable" occurring in S, 141 CPC have been considered and it is held that S. 141 CPC makes it clear that in applying the various provisions of the Code to proceedings other than those of a suit, the Court must take into account the nature of the proceedings and the relief sought. Thus, if the nature of the proceedings is civil proceeding, then provisions of the Code of Civil Procedure can be applied by virtue of section 141 CPC. 20. In the case of Mst, Kiran Devi v. Abdul Wahid and another [AIR 1966 Allahabad 105] it is held that application for setting aside ex parte order under section 25 of the Guardian and Wards Act, under Order IX Rule 13 read with S. 141 CPC will be maintainable and will be governed by Article 181 of the Limitation Act, 1908 and will not be governed by Article 164. While considering the question, it is held that there is a difference between the decree and order and by virtue of 'section 141 application for setting aside ex parte order in a Court of civil jurisdiction in civil proceeding is maintainable. 21. In the case of Timan Lal Sahu v. Shivcharan Lal Sahu [2001(2) BLJ 81=2002(1) MPHT 64 CG] Chhattisgarh High Court had held that section 141 CPC refers to the miscellaneous proceedings. It provides that the procedure provided in the Code of Civil Procedure in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. The explanation appended to section 141 further clarifies the provisions by saying that in section 141 the expression "proceedings includes proceedings under Order IX of the Code of Civil Procedure but does not include any proceeding under Article 226 of the Constitution of India. 22. Counsel for the appellant further submitted that the order was passed without considering the welfare of the minor. 22. Counsel for the appellant further submitted that the order was passed without considering the welfare of the minor. He submitted that the order so passed was against the principles laid down by the apex Court in the case of Jai Prakash Khadria v. Shyam Sunder Agrawal [ (2000)6 SCC 598 ]. 23. As discussed above, it is apparent and clear that the Family Court committed a grave error in rejecting the application under Order IX Rule 13 CPC holding therein that the order passed under section 25 of the Guardians and Wards Act is not a decree as such application under Order IX Rule 13 CPC is not maintainable. 24. Therefore, in our considered view, as discussed above. Family Court was not justified in holding that the said application was not maintainable. Family Court has not considered the import of section 141 CPC, It, is therefore, held that application under Order IX Rule 13 read with Section 141 CPC is maintainable before the Family Court. Family Court has committed a grave error in rejecting the application summarily. 25. It may further be mentioned that section 10 of the Family Courts Act, 1984 provides that subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings, other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purpose of the said provisions of the Code, a Family Court shall be deemed to be a civil Court and shall have all the powers of such Court. Therefore, under section 10 of the Family Courts Act, said application was maintainable and the Family Court was bound to decide the application in accordance with law. 26. Now the next question which requires our attention is whether application for setting aside the order passed by the Court, other than a Family Court is maintainable before the Family Court Normally, the Court which has passed the order should have declared the application for setting aside the ex parte order and in case the order is set aside, orders for transferring the original case should have been passed. Family Court shall also examine whether the Court which has passed the order had jurisdiction to pass such orders. 27. In the result, impugned order passed by the Family Court is set aside. Appeal succeeds with costs. Counsel's fee as per schedule. ......................