Back
2022 Supreme(P&H) 1696
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Arun Monga, J.
Surindera Devi – Appellant
Versus
State Of Punjab & Ors. – Respondents
CWP No. 25148 of 2018
Decided On : 14-07-2022
Mr. Avnish Mittal, Advocate, for the Appellant; Ms. Simran Grewal, AAG, Punjab., Mr. R.S. Sidhu, Advocate for, Mr. G.S. Nahel, Advocate, for the Respondent.
The appellate Tribunal under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is not conferred with the power of remand and must either reject or accept the appeal.
Headnote:
Maintenance Tribunal - Maintenance and Welfare of Parents and Senior Citizens Act, 2007 - Section 16
Fact of the Case:
The petitioner, a mother, filed an application under Sections 4, 5, 22 & 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 before the Maintenance Tribunal. The Maintenance Tribunal annulled a document of transfer, and the appeal filed by the respondent was remanded back for deciding it again. The petitioner challenged the maintainability of the appeal before the Maintenance Appellate Tribunal, citing the summary nature of the inquiry under Section 8 of the Act.
Finding of the Court:
The appellate Tribunal is not conferred with the power of remand under Section 16 of the statute and must either reject or accept the appeal, wholly or partly as the case may be. The impugned appellate order is not sustainable and is accordingly set-aside. The matter is remanded back to the appellate Tribunal for fresh consideration and adjudication.
Issues: The main issue was whether the appellate authority had the power to remand the appeals or was mandatorily required to be decided on merits instead of de novo reconsideration of the same by the Tribunal below, in case of irregularity committed by the Tribunal below.
Ratio Decidendi: The court interpreted Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and held that the appellate Tribunal is not conferred with the power of remand and must either reject or accept the appeal. The court also referred to similar special statutes to support its interpretation.
Final Decision: The impugned appellate order is set aside, and the matter is remanded back to the appellate Tribunal for fresh consideration and adjudication.
JUDGMENT
Arun Monga, J. (Oral) - Petitioner herein, inter alia, seeks issuance of a writ in the nature of certiorari for quashing impugned appellate order dated 08.08.2018 (Annexure P-6) passed by respondent No.3, being illegal, nonspeaking and contrary to provisions of Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act'). Further prayer has been made for implementation of order dated 06.12.2016 (Annexure P-3) passed by the Maintenance Tribunal.
2. The controversy involved herein is summed up succinctly in an order dated 01.10.2018 passed by my learned brother R. K. Jain, J. (as he then was in this Court) which is reproduced as under :
'Petitioner is the mother of respondent No.5. She filed an application under Sections 4, 5, 22 & 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 [for short 'the Act'] before the Maintenance Tribunal which was allowed. The Maintenance Tribunal has annulled the document of transfer. The appeal was filed by respondent No.5 before the Maintenance Appellate Tribunal in which the order of the Maintenance Tribunal has been set aside and the matter has been remanded back for deciding it again. Although, learned counsel for the petitioner has initiated his submission challenging the maintainability of appeal before the Maintenance Appellate Tribunal filed by respondent No.5 but in view of a decision rendered by the Division Bench of this Court in the case of 'Paramjit Kumar Saroya Vs. The Union of India and another'2016 (3) RCR (Civil) 146, the said argument is hereby rejected.
Learned counsel for the petitioner has then submitted that the order of remand is not maintainable. In this regard, it is submitted that firstly, there is no provision in the Act to involve all the provisions of the Code of Civil Procedure, 1908 [for short 'the CPC'] because the procedure of inquiry is summary in nature in view of Section 8 of the Act as per which the Tribunal shall have the powers of the Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents but it would not have the power to remand the case in terms of Order 41 Rules 23 & 25 of the CPC. In this regard, he has relied upon the decisions rendered by this Court in the cases of 'Mohd.Hussain Vs. Mohd. Ashgar' 2017(2) RCR (Rent) 3, 'Krishan Lal SethVs. Pritam Kumari' 1961 PLR 865 and 'Om Parkash and others Vs.The Joint Director of Rural Development and Panchayat Punjab,Chandigarh and another' 1987 RRR 12.
Notice of motion for 02.11.2018.
In the meantime, operation of the impugned order shall remain stayed.'
3. In the aforesaid background, it would be apposite to reproduce the relevant Sections 8 and 16 of the Act under which appeal is filed to determine whether the appellate authority has the power to remand the appeals or is mandatorily required to be decided on merits instead of de novo reconsideration of the same by the Tribunal below, in case even if admittedly there is some irregularity committed by the Tribunal below:
'Section 8 Summary procedure in case of inquiry.
(1) In holding any inquiry under section 5, the Tribunal may, subject to any rules that may be prescribed by the State Government in this behalf, follow such summary procedure as it deems fit.
(2) The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of1974).
(3) Subject to any rule that may be made in this behalf, the Tribunal may, for the purpose of adjudicating and deciding upon any claim for maintenance, choose one or more persons possessing speci
