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2013 DIGILAW 399 (ORI)

Kiran Sadangi v. Tapan Kumar Khadenga

2013-09-20

S.K.MISHRA

body2013
Order S.K. Mishra, J. 1. The order passed by the learned Civil Judge (Senior Division), Berhampur on 23.04.2010 in O.S. No. 27 of 2001 refusing to exercise his jurisdiction under Section 152 of the Code of Civil Procedure, 1908, hereinafter referred as the "Code" for brevity, is in question in this case. The present petitioner being the plaintiff filed the suit for decree of divorce, permanent alimony, litigation expenses etc. The defendant (husband) appeared and filed his written statement. He agreed for decree of divorce but disputed the permanent alimony. After hearing, the judgment was passed on 20.02.2009 decreeing the suit in part on contest against the defendant. So far as permanent alimony is concerned, the Court instead of granting one time payment, granted relief on a quarterly basis at the rate of Rs. 7,500/- per quarter to the plaintiff and the relief of maintenance to her daughter also on a quarterly basis at the rate of Rs. 2000/- per quarter, but refused cost and expenses of litigation. Such judgment and decree was challenged by the petitioner before the learned District Judge, Berhampur, which has been registered as Mat. Appeal No. 1 of 2009. The petitioner filed certified copy of the judgment and decree and on perusal of the same she found that a clerical error had crept in the decree prepared by the office relating to jurisdictional value of the aforesaid suit by erroneously mentioning Rs. 15,00,000/- instead of putting the actual value given by the plaintiff in the plaint filed under Section 13 of the Hindu Marriage Act, hereinafter referred to as the "Act" for brevity, at Rs. 11,000/- as against the word "value of the suit" in the certified copy of the decree. 2. In order to correct the decree as aforesaid, she filed a petition on 03.08.2009 in the aforesaid Mat. Appeal. However, the learned District Judge, by his order dated 17.02.2010 observed that the petition for correction of the decree may be made before the lower court and the petitioner, if so advised, may make a prayer before the lower court for correction of the decree thereby disposed of the said petition. It is further stated that the appellate court further observed that the plaintiff-appellant's prayer that the documents may be submitted in the appeal, may be returned to her for correction. 3. It is further stated that the appellate court further observed that the plaintiff-appellant's prayer that the documents may be submitted in the appeal, may be returned to her for correction. 3. The plaintiff accordingly filed an application before the learned Civil Judge (Senior Division). She has stated at paragraph 22 of the plaint that she had valued the suit at Rs. 11,000/- and the defendant in his written statement has never objected to the said valuation put by the plaintiff and that the defendant never pleaded that the same is erroneous. Also by way of amendment, she claimed Rs. 15,00,000/- in place of Rs. 5,00,000/- towards permanent alimony and the same was allowed by the Court and at that stage also the defendant did not file any objection to the aforesaid jurisdictional value of Rs. 11,000/- of the suit. On such argument, the petitioner prayed for correcting the valuation of the suit in the decree and for necessary correction of the certified copy. 4. The respondent (opposite party in this case) has filed his written counter affidavit and prayed that the petition filed by the petitioner be rejected. As per the respondent, the petitioner has prayed for decree of divorce and permanent alimony of Rs. 15,00,000/-, hence, she claimed two reliefs in the suit. The plaintiff filed a separate petition before the appellate Court to amend the decree to which he filed his counter stating that there is no clerical or arithmetical mistake so as to be corrected. According to him, such petition of the plaintiff before the appellate court was rejected. The respondent further objected that since the suit is for decree of divorce and permanent alimony and the plaintiff has to value his suit of the decree for divorce and also for the valuation of the permanent alimony separately and therefore no mistake was committed by the original court in mentioning the valuation of the suit at Rs. 15,00,000/- and valuation of Rs. 11,000/- can never be considered to be the valuation of the suit. He further states that as far as the same is between the petitioner and the court and the respondent has no role to play in this case at all. It is his further objection that any order passed by the original court is subject to the provision of Section 28(3) of the Act is appealable and the claim of permanent alimony of Rs. It is his further objection that any order passed by the original court is subject to the provision of Section 28(3) of the Act is appealable and the claim of permanent alimony of Rs. 15,00,000/- being appealable before the High Court and not in the District Court, Ganjam. He further states that under Section 17 of the Court Fees Act where two reliefs are prayed, court fee is to be paid on the relief requiring higher court fee and in the facts and circumstances of this case, the valuation put by the plaintiff at Rs. 11,000/- is for value of the divorce and the valuation of Rs. 15,00,000/- is the value of the permanent alimony. It is apparent that the petitioner being a lady was exempted from payment of court fee, but she cannot take advantage of non-objection of the valuation either by the court or by herself. Accordingly, the respondent claimed that the valuation has been correctly given in the decree and it requires no interference. 5. Having considered the rival statement and after perusing the materials on record, the learned Civil Judge (Senior Division) held that Section 17 of the Court Fees Act in essence speaks that where two reliefs are prayed, the court fee to be paid is for the relief requiring higher court fee and, therefore, the plaintiff having enhanced the permanent alimony amount to Rs. 15,00,000/-, the valuation in higher side i.e. Rs. 15,00,000/- is to be accepted as the valuation of the suit. Even though the plaintiff did not amend the original valuation of Rs. 11,000/-, the valuation given by her is not binding on the Court. It was further held that even though the plaintiff did not amend the original valuation and the same was allowed to continue till conclusion of the suit, she cannot take advantage of saying that since she has not changed the valuation although she changed the permanent alimony amount, the earlier valuation has to be accepted. Therefore, it was further held that in terms of Section 17 of Court Fees Act, the higher amount of relief i.e. higher claim of permanent alimony has to be taken to be the valuation of the suit. 6. Therefore, it was further held that in terms of Section 17 of Court Fees Act, the higher amount of relief i.e. higher claim of permanent alimony has to be taken to be the valuation of the suit. 6. The learned Civil Judge further held that the ratio decided in Chhala Banchhar v. Rajan Banchhar and others, 1984 (I) OLR 650 : (AIR 1985 (NOC) 28 (Ori)) is not applicable to the present case as the figure mentioned in the decree against the valuation of the suit represents the intention of the Judge. Thus, it was held that there was no clerical or arithmetical error on the face of it. The petition under Section 152 read with Section 151 of the Code was rejected by the learned Civil Judge (Senior Division). 7. It is not disputed that the suit was for a decree of divorce. In the said petition, the petitioner (wife) also prayed for permanent alimony and maintenance as provided under Section 25 of the Act. It is stated that the prayer to grant permanent alimony is not an independent relief and it is consequential and ancillary relief to the main relief of divorce. Therefore, it is not necessary to separately and independently value the relief, apart from the valuation of the suit as stated in the plaint. 8. In the reported case of Baby Sagarika Jena (Rosy) and another v. Bishnu Charan Jena, AIR 1984 Orissa 151; this Court held that a petition under Section 26 of the Act was filed by mother (divorced) for maintenance and education of two minor children against father (divorced) after passing of the decree for divorce by mutual consent by the Sub Judge and the earlier divorce proceeding under Section 13B was valued at Rs. 250/-, the petition under Section 26 need not be registered as suit. Section 7(ii) of the Court-fees Act is not attracted. The valuation in divorce proceeding shall govern the valuation of petition under Section 26. In view of the provisions of Sections 26, 23(2) of the Act and Section 21(I) of the Bengal, Agra and Assam Civil Courts Act, the appeal against order under Section 26 lies to the District Judge and not to the High Court. The valuation in divorce proceeding shall govern the valuation of petition under Section 26. In view of the provisions of Sections 26, 23(2) of the Act and Section 21(I) of the Bengal, Agra and Assam Civil Courts Act, the appeal against order under Section 26 lies to the District Judge and not to the High Court. This Court further held that even if an order with respect to the custody, maintenance and education of children has not been made either by an interim order or by incorporation in the decree in the main proceeding, such an order can be made subsequently in the same manner as if the main proceeding for obtaining such decree were still pending. When the court's jurisdiction under that section is invoked after the passing of the decree in the main proceeding, the court may make an order which might have been incorporated in the decree as if the main proceedings were still pending before it. 9. Somewhat similar question was answered by a Division Bench of this Court in Rama Kumari Meher v. Meenaketan Meher, AIR 1976 Orissa 32. The matter was referred to the Division Bench regarding payment of court fee while deciding the said issue the Court at paragraph 11 has held that there is provision for passing of orders under the Act which are not decrees. Orders of the Court granting pendente lite maintenance and expenses of proceedings under Section 24, granting of permanent alimony and maintenance subsequent to the decree under Section 25 and giving direction of interim custody of children under Section 26 are orders and not decrees. If orders are passed under Sections 25 and 26 relating to permanent alimony and maintenance or custody of children in the decrees itself, then such orders constitute component part of the decree and are assailable in the appeal against the decree itself. After discussing several cases, at paragraph 13, the Court further held that the relief granting alimony appears to be ancillary to the main relief for judicial separation or divorce as the case may be. Thus, when an appeal is preferred against a decree for judicial separation challenging with it an order passed by the trial Judge granting alimony, then no ad valorem court-fee is payable on the said relief as the amount was granted by way of alimony. Thus, when an appeal is preferred against a decree for judicial separation challenging with it an order passed by the trial Judge granting alimony, then no ad valorem court-fee is payable on the said relief as the amount was granted by way of alimony. A similar question arose before this Court in Nrusingh Charan Nayak v. Smt. Hemant Kumari Nayak, AIR 1978 Orissa 163; wherein the Division Bench has come to the conclusion that the Courts other than the principal Civil Court of original jurisdiction which by notification made under Section 3(b) of the 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. 10. In applying the aforesaid principles to the present case, this Court comes to the conclusion that any application under Section 13 of the Hindu Marriage Act to the prayer for decree of divorce is the main relief sought and grant of permanent alimony is not a main relief, rather it is an ancillary and consequential relief to the main relief. For example, without an application for judicial separation or divorce, an application of permanent alimony is not maintainable independently. As decided in the afore-cited case, an application for permanent alimony can be filed during the pendency of the case as well as after the passing of the decree of divorce. So the valuation made in the plaint regarding the relief claimed will not be guided by the quantum of alimony prayed for. Thus, the learned Civil Judge (Senior Division) has erred in holding that the value of the suit should be Rs. 15,00,000/- and not Rs. 11,000/-. 11. Learned Civil Judge (Senior Division) has held that the valuation made in the decree represents the intention of the Judge at the time he made it. This is erroneous, firstly because; the valuation of the suit was not challenged by the defendant. No issue regarding valuation was cast by the learned trial Judge. Consequently, no finding has been given on the valuation of the suit by the trial Judge in the judgment. Therefore, the valuation as mentioned in the decree itself has been done by the ministerial staff and it has been counter-signed by the learned trial Judge. Thus, it cannot be said that it stands to represent the intention of the Judge. Consequently, no finding has been given on the valuation of the suit by the trial Judge in the judgment. Therefore, the valuation as mentioned in the decree itself has been done by the ministerial staff and it has been counter-signed by the learned trial Judge. Thus, it cannot be said that it stands to represent the intention of the Judge. Accordingly, it is held that such an error is clerical error, which has been suggested by the chief ministerial officer of the Court. In that view of the matter, the learned Civil Judge has failed to exercise the jurisdiction conferred upon him, thereby a great miscarriage of justice has resulted for which the petitioner is running from pillar to post to get her appeal adjudicated by the competent court. Accordingly, the writ application succeeds. The order dated 23.04.2010 passed by the learned Civil Judge (Senior Division), Berhampur in O.S. No. 27 of 2001 is hereby quashed. It is ordered that the valuation of the suit be changed to Rs. 11,000/- and accordingly, the correction be made thereof and on the certified copies given to the petitioner. The same be done within a period of 21 days from today. The learned District Judge is also directed to dispose of the appeal as early as possible. The writ application is accordingly disposed of. Petition allowed.