Raghunath Rajaram Patil and ors. Vs. Harishchandra Pandurang Gaikwad and ors. - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act.ranjana desai, j. 1. rule. by consent of the parties taken up for hearing forthwith.2. the petitioners are opponents in civil miscellaneous application no. 102/03. the said application is filed by respondents 1 to 3 under section 276 of the indian succession act, 1925 ('the said act' for short) praying for grant of probate of the will of deceased anandibai kashinath patil dated 23rd july, 1997. the petitioners filed their written statement contesting the claim of respondents 1 to 3. it is the petitioner's case that the said anandibai died intestate and she had never executed any will.3.on 6th august, 2004 the petitioners filed an application under section 295 of the said act, praying that necessary orders be passed for treating the probate proceedings as a suit and for necessary inquiry regarding the alleged will and the question of title of the property in view of the written statement filed by the petitioners. the petitioners also prayed for transferring the said proceedings to the civil judge (s.d.) panvel.4. on 5-4-2005 the petitioners filed application under section 295 of the said act read with section 9 of the code of civil procedure praying that point of jurisdiction may be framed and decided first. the district judge alibag by his order dated 22-7-2005 rejected the said application and hence this writ petition.5. i have heard the learned counsel appearing for the petitioner at some length. she has drawn my attention to sections 276, 286 and 295 of the said act and section 28a of the bombay civil courts act, 1869. she submitted that in view of the fact that the petitioners have disputed the claim of the respondents the proceedings have become contentious and will have to be treated as a suit and in view of section 28a of the civil courts act, 1869 it would be necessary to ascertain in which court the proceedings would lie and that will depend upon the pecuniary jurisdiction of the court. she submitted that though there is no inherent lack of jurisdiction in the district court, if it entertains the probate proceedings the petitioners would lose their right of appeal. it was, therefore, necessary for the district court to frame necessary issue as regards jurisdiction.6. in support of her submissions the learned counsel relied on three judgments of this court. they are mrs. vera d. thackersey v. bai manekbai annasaheb thackersey, : air1977bom419 , manohar son of bapurao sapre v. bhaurao son of tukaramji shirbhate and anr., : air1996bom29 and shri shridhar and baba keshav phadke and ors. v. shri shivram and bal keshav, 1997 blr 744.7. i have also heard learned counsel for the respondents. he submitted that since there is no inherent lack of jurisdiction in the district court it is not necessary to interfere with the impugned order.8. section 276 of the said act provides for petition for probate. section 286 thereof states that the district judge shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his court. explanation to the said section state what 'contention' means it states that contention means the appearance of any one in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding.9. section 295 of the said act says that in any case before the district judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the code of civil procedure, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.10. it is clear, therefore, that the moment the probate proceedings become contentious they partake the character of a suit. section 28a of the bombay civil courts act, 1869 which provides for power to invest civil judges with jurisdiction under certain acts reads thus :28a. ''power to invest (civil judges) with jurisdiction under certain acts.-- (1) the high court may by general or special order invest any (civil judge), within such local limits and subject to such pecuniary limitation as may be prescribed in such order, with all or any of the powers of a district judge or a district court as the case may be under the indian succession act, 1865, the probate and administration act, 1881, or paragraph 3 of schedule iii to the code of civil procedure, 1908.(2) every order made by a (civil judge) by virtue of the powers conferred upon him under sub-section (1) shall be subject to appeal to the high court or the district court according as the amount or value of the subject-matter exceeds or does not exceed (fifty thousand rupees).(3) every order of the district judge passed an appeal under sub-section (2) from the order of a (civil judge) shall be subject to an appeal to the high court under the rules contained in the code of civil procedure applicable to appeals from appellate decrees.11. there is no dispute about the fact that the civil judge, senior division has been delegated the powers. in view of the fact that the petitioners have disputed the claim of the respondents, the proceedings are contentious and have to be treated as a suit and in view of section 28a of the civil courts act it would be necessary to ascertain in which court the proceeding would lie and that may depend upon the pecuniary jurisdiction of the court. though there is no inherent lack of jurisdiction in the district court prima facie i find substance in the contention of ms. godse that in case it is found that the civil judge, senior division has jurisdiction, the parties would lose their right of appeal.12. in vera thackersey's case application for letters of administration was made by the widow of the deceased in the district court, pune. the district judge transferred the application to the civil judge, senior division, pune. the mother of the deceased challenged the jurisdiction of the civil judge, senior division, pune on the ground that he was merely a delegate of the district judge and since the matter had become contentious the application should be returned to the applicant for presentation to the court of the district judge under section 288 of the said act which provides for procedure to be followed by district delegate for return of the application, if he feels that the petition filed before him should be return to district court. this court held that reading section 28-a of the bombay civil courts act, 1869 and rule 55(ii)of the bombay high court rules (civil manual vol. 1, 1960) there can be no doubt that the civil judge, senior division has been invested with all the powers of a district judge to take cognizance of any contested proceeding under the said act, which may be transferred to him by the district judge and the civil judge, senior division, to whom the application for grant of letters of administration is so transferred by the district judge, could dispose of the same on merits irrespective of the fact that a caveat had been entered and the matter has become contentious.13. in shridhar phadke's case (supra) the respondent therein filed a petition for probate in the court of civil judge, senior division, pune, against the appellants therein. the appellants contested the proceedings and hence the civil judge, senior, division treated them as a suit. parties adduced evidence. the suit was decreed by the civil judge, senior division, by granting letters of administration. being aggrieved by the said decree, the original defendants filed appeal before this court. the appellant contended that civil judge, senior division had no jurisdiction to try the case since there was no transfer of proceedings by the district court as required by law. this court referred to section 28(a) of the bombay city civil courts act, 1869 and rule 305(ii) of the civil manual vol. i of 1986 under which the high court empowers all the courts of civil judge, senior division with all the powers of a district judge, to take cognizance of any contested proceeding under the said act that may be transferred to them by the district judges. it was argued that there was no transfer of the application by the district judge to the civil judge, senior division. it was held, in the facts of the case, that the plea of jurisdiction ought to have been raised at the earliest when the suit was registered and not 16 years after the proceedings were initiated. the court observed that since there was no inherent lack of jurisdiction and since only a procedural conferment of jurisdiction was not done, no interference was necessary. what needs to be noted from this judgment is that plea of jurisdiction has to be agitated at the earliest. in my opinion, therefore, the question of jurisdiction raised by the petitioners ought to be decided by the district court, lest it would crop up at a later stage.14. there is also some substance in the submission of ms. godse, that though there is no inherent lack of jurisdiction in the district court, depending on pecuniary jurisdiction, the petitioners may lose their right of appeal.15. in manohar sapre's case (supra) the applicant had filed a petition for probate under section 276 of the said act in the court of civil judge, senior division, amravati. the petition was contested by respondent no. 1. the civil judge, senior division granted probate of the will. the respondents before the high court preferred an appeal before the district judge amravati. objection raised to the maintainability was repelled by the district judge. the district judge reversed the order passed by the civil judge, senior division, amravati.16. this court considered the relevant provisions of the civil manual, the said act and section 28(a)(i) of the bombay civil courts act, 1869 and observed that under the said act, the said matters may be adjudicated by the district judge or the civil judge, senior division to whom such proceedings have been transferred. once the civil judge, senior division has exercised the jurisdiction over the application filed by the petitioner for grant of probate of the will having valuation of rs. 10,000/- in view of the provisions contained in section 29-a of the bombay city civil courts act, 1869, the appeal lay against such order passed by the civil judge, senior division, to the court of the district judge.17. in my opinion, in view of the above it was necessary for the district court to frame the issue as regards jurisdiction and decide it. hence the following order :(a) the impugned order dated 22nd july, 2005 passed below exhibit 31 in civil misc. application no. 102/03 is set aside. application exh. 31 stands allowed.(b) the district judge is directed to frame the issue of jurisdiction and decide it in accordance with law after hearing the parties.(c) it is clarified that the district judge should decide the issue independently. anything said by me in this order may not be treated as final expression of opinion, on the question of jurisdiction.(d) petition is disposed of.