Anita Vs. State of Maharashtra and anr. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 8. t the best evidence available, therefore, was the income tax returns. the assessment orders are the perfect proof of the income. 108 that it should be from the date of application and in exceptional cases from the date of order.c.l. pangarkar, j.1. rule, heard finally with consent of parties.these two applications can be conveniently decided together, since they arise out of same order passed by the judge of the family court on an application under section 125 of criminal procedure code.2. application no. 294 of 2006 is filed by wife anita for enhancement of the maintenance granted and also for an order that it should be granted from the date of application, while the husband has filed application no. 31 of 2007 for reduction of the maintenance granted.3. a few facts may be stated thus-anita, the applicant, in criminal revision no. 294 of 2006 was married to non-applicant anand on 28.8.1979. soon after the marriage, the relations between them got strained. it resulted into filing of divorce petition which came to be decided in the year 1987 and decree for divorce was passed. thereafter, an application no. 452 of 2001 came to be filed in the family court for grant of maintenance. the wife claims maintenance at the rate of rs. 3,000 per month alleging that non-applicant's monthly income is rs. 10,000. it is her case that the n.a. has large property and agricultural land and his income is more than rs. 10,000 per month.4. the non-applicant resisted the application. he denied that his income is rs. 10,000 per month. on the other hand, he contended that he has agricultural land from which he was getting less income and there is no other source of income. he owns only small piece of dry crop land.5. the learned judge of the family court, upon consideration of the evidence found that the applicant was entitled to maintenance at the rate of rs. 2,500 per month from the date of order. being aggrieved by that order, these two revision applications have been preferred.6. i have heard the learned counsel for the applicants and the non-applicants.the scope of revision is very limited. the court can only look into the propriety and legality of the order. both the learned counsel restricted their argument only with regard to the quantum of maintenance and the date of award of maintenance.7. the wife has led evidence about the sale of the property etc. but has not given the exact source of income of the non-applicant except agricultural land. sale of property cannot have nexus with the determination of question of maintenance. what is to be seen is regular source of income. it is observed by the learned judge of the lower court in para no. 12 of the judgment that the agricultural land to the extent of 41.50 acres, the non-applicant is not the owner but the land is owned by the maternal uncle and aunts of the non-applicant. obviously the land does not exclusively belong to the non-applicant but is owned by his maternal uncle and aunts. if it is a land owned by his maternal uncle and aunts, it can certainly be said that he has no interest in that land at all. it is stated by the non-applicant on oath that the said land is also sold and he does not get any income from it. there is no reason to dispute this fact.8. t the best evidence available, therefore, was the income tax returns. those income tax returns are filed on record. the learned judge very strangely observed with regard to the returns that normally less income is shown in income tax returns. this is a wrong and unwarranted observation, unnecessarily attributing dishonesty to non-applicant. the assessment orders are the perfect proof of the income. for the year 2005-06 the income is shown to be rs. 67,000. the other returns prior to 2005 show that the income was around rs. 48,000 to rs. 27,000. in any case average income was not more than rs. 50,000 per annum. considering this aspect, award of rs. 2,500 per month is certainly excessive. normally the maintenance should not exceed 1/3rd of the total income. hence, it errs on hire side. to my mind, rs. 2,000 per month would be the most appropriate sum, considering the average income during last five years, as can be seen from the income tax returns (exhs. 69 to 72).9. the learned judge has awarded maintenance from the date of order. section 125 of criminal procedure code does say that it should be awarded from the date of order but while interpreting the provision, the court has held in 1990 m. l.j. 108 that it should be from the date of application and in exceptional cases from the date of order. i concur with what has been observed in this ruling. the applicant is certainly entitled to maintenance from the date of order. hence, the following order.10. the criminal revision application no. 294/2006 is partly allowed. the applicant is entitled to claim maintenance from the date of application but only to the extent of rs. 2,000 per month.the criminal revision application no. 31 of 2007 is partly allowed. instead of rs. 2,500 the applicant do pay to the non-applicant rs. 2,000 per month from the date of application.