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IN THE HIGH COURT OF ALLAHABAD
K. N. Seth and N. N. Mithal, JJ.
CHANDRA SWAROOP SINHA - Appellant
Versus
MANORAMA SINHA - Respondents
First Appeal 80 Of 1978
Decided On : 01/15/1981
HINDU MARRIAGE ACT - JURISDICTION - COURT OF SMALL CAUSES - APPEAL - DISTRICT COURT - CIVIL JUDGE - POWERS - INTERPRETATION OF STATUTES - BENGAL, AGRA AND ASSAM CIVIL COURTS ACT, 1887 - PROVINCIAL SMALL CAUSE COURTS ACT, 1887 - HINDU MARRIAGE ACT, 1955 - SECTIONS 3(B), 18, 19, 20, 21, 25, 28, 95, 96 - RULES 5.
Fact of the Case:
A petition for divorce was filed under the Hindu Marriage Act, 1955, in the Court of Small Causes, Varanasi, which had been invested with the powers of a "district court" under Section 3(b) of the Act. The petition was dismissed by the trial court and an appeal against it was also dismissed by the lower appellate court, holding that the appeal was not competent as the proceeding had been decided by the Judge, Small Cause Court, Varanasi and only a revision lies against such a decree.
Finding of the Court:
The court held that the Judge of the Court of Small Causes had no jurisdiction to entertain any petition under the Act for divorce, etc., and that the Judge could not have exercised jurisdiction as the Court of Small Cause Judge and must necessarily have exercised the jurisdiction only as a Civil Judge having powers of the "district Court under the Act. Therefore, an appeal from the decree passed by the Court of Small Causes at Varanasi while deciding any proceeding on a petition under the Act must have been decided as a district Court and not as a Court of Small Causes and, therefore, instead of revision an appeal would lie under Section 28 of the Act.
Issues: 1. Whether an appeal lies against the decision of a petition under the provisions of the Hindu Marriage Act when such a proceeding was decided by the court of Judge, Small Causes or whether a revision only will lie? 2. Whether the Court of Small Causes, Varanasi, while deciding the proceedings under the Act, was exercising the jurisdiction both as a court small causes under the Provincial Small Cause Courts Act and also of the Dowers of the "district court" conferred under Section 3 (b) of the Act? 3. Whether the Judge of the Court of Small Causes had jurisdiction to entertain any petition under the Act for divorce etc.? 4. Whether the Judge could have exercised jurisdiction as the Court of Small Cause Judge and must necessarily have exercised the jurisdiction only as a Civil Judge having powers of the "district Court under the Act? 5. Whether an appeal from the decree passed by the Court of Small Causes at Varanasi while deciding any proceeding on a petition under the Act must have been decided as a district Court and not as a Court of Small Causes? 6. Whether instead of revision an appeal would lie under Section 28 of the Act? 7. Whether there is a conflict between Section 28 of the Act and Section 96, C. P. C.? 8. Whether an appeal shall lie to the District Judge or to the High Court in the instant case?
Ratio Decidendi: 1. The court interpreted the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887, the Provincial Small Cause Courts Act, 1887, and the Hindu Marriage Act, 1955, to determine the jurisdiction of the Court of Small Causes, Varanasi, in deciding the petition for divorce under the Act. 2. The court held that the Court of Small Causes, Varanasi, while deciding the proceedings under the Act, was exercising the jurisdiction both as a court small causes under the Provincial Small Cause Courts Act and also of the Dowers of the "district court" conferred under Section 3 (b) of the Act. 3. The court held that the Judge of the Court of Small Causes had no jurisdiction to entertain any petition under the Act for divorce etc. 4. The court held that the Judge could not have exercised jurisdiction as the Court of Small Cause Judge and must necessarily have exercised the jurisdiction only as a Civil Judge having powers of the "district Court under the Act. 5. The court held that an appeal from the decree passed by the Court of Small Causes at Varanasi while deciding any proceeding on a petition under the Act must have been decided as a district Court and not as a Court of Small Causes. 6. The court held that instead of revision an appeal would lie under Section 28 of the Act. 7. The court held that there is no conflict between Section 28 of the Act and Section 96, C. P. C. 8. The court held that an appeal shall lie to the District Judge in the instant case.
Final Decision: The court answered the reference accordingly and directed that F. A. No. 80 of 1978 filed in this Court is not competent and the appeal could be only before the District Judge, Varanasi. The memorandum of appeal shall be returned for presentation to the proper court. As regards S. A. No. 1167 of 1968 it shall now be listed before the learned single Judge who has made the reference for decision on merits.
( 1 ) FIRST Appeal No. 80 of 1978 and Second Appeal No. 1167 of 1968 have both come up before this Court on a reference made by Honble Deoki Nandan, J. , vide his order of reference dated 23rd August, 1979.
( 2 ) IN First Appeal No. 80 of 1978 the point before the learned single Judge was about the maintainability of the appeal as it was directed against a decree passed by the Judge, Small cause Court, Varanasi, while deciding the proceedings under the Hindu Marriage Act. Since the learned single Judge had already referred Second Appeal No. 1167 of 1968 Smt. Mithilesh kumari v. Ambika Prasad Tiwari for re-consideration by the Division Bench of the decision of honble Oak, J. in Shesh Narain Dixit v. Smt. Savitri (1966 All LJ 833) : (AIR 1967 All 156) the question involved in First Appeal No. 80 of 1978 was also referred to this Bench.
( 3 ) IN Second Appeal No. 1167 of 1968 the appellant had filed a petition against her husband in the District Court. Varanasi, for annulment of her marriage by a decree of nullity and in the alternative for a decree of divorce or judicial separation under the Hindu Marriage Act, 1955. After the matter had remained pending for some time before the District Judge, Varanasi, it was transferred to the court, Judge, Small Causes, Varanasi for decision. The petition was dismissed by the trial court and an appeal against it was also dismissed by the II Addl. District Judge, varanasi against which Second Appeal No. 1167 of 1968 has been filed by the wife,
( 4 ) IN appeal before the lower appellate court it was argued on behalf of the respondent that the appeal was not competent as the proceeding had been decided by the Judge, Small Cause Court, varanasi and only a revision lies against such a decree. The lower appellate court relying upon the decision of Honble Oak, J. in the case of Shesh Narain Dixit v. Smt. Savitri (AIR 1967 All 156) (supra) dismissed the appeal as not maintainable. When the Second Appeal came up for hearing before Honble Deoki Nandan, J. , he, for the reasons re corded in the reference order, disagreed with the view. According to him the Judge, Small Cause Court could not decide the proceedings under the Hindu Marriage Act, as a Judge of the Small Cause Court and had decided the same in his capacity as a Civil Judge and, therefore, an appeal before the lower appellate court was legally maintainable. The question that arises before this Bench, therefore, is as to whether an appeal lies against the decision of a petition under the provisions of the Hindu marriage Act when such a proceeding was decided by the court of Judge, Small Causes or whether a revision only will lie.
( 5 ) CIVIL courts were re-organised in British India by the Bengal, Agra and Assam Civil Courts act, 1887. The preamble of this Act says as under:
"whereas it is expedient to consolidate and amend laws relating to Civil Courts in Bengal, north Western Provinces and Assam. . . . . . . . .
"north Western Provinces of British India at that time included Uttar Pradesh also. This Act was enforced w. e. f. July 1, 1887. With the expansion of the British rule in India the administration of civil law had to be entrusted to the various courts which were then functioning in Bengal, Assam and North-Western provinces, i. e. , U. P. etc. In order to consolidate and to lay down the uniform system it was thought necessary that the administration of civil law may be controlled under a common Act and for this reason the Act in question was passed in 1887, as Act 12 of 1887. Under this Act four kinds of civil courts were recognised namely, 1, the court of District Judge,
2. the court of Additional District Judge; 3. the court of the Subordinate Judge (Civil Judges in u. P.); and 4, the court of the Munsif. Section 18 of this Act lays down the extent of the jurisdiction of the District Judge and the Civil Judge. Similarly Section 19 prescribes the extent of the jurisdiction of the Munsif. Section 20 provided for appeals from
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