P. Krishna Murthy Vs. Monika Sidhu - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 3. it is undisputed that the averments made in the petition clearly make out a case only under section 13(1)(ia). the learned counsel appearing for the respondent after going through the marriage petition concedes that the averments made in the petition are touching the ground of cruelty only, set out in section 13(1)(ia) of the hindu marriage act, 1955. with a view to correct the said typographical error, an application was moved seeking amendment of the petition and the rejection on the said application has given rise to the filing of the present writ petition.deshpande a.p., j.1. heard. rule. by consent of parties, petition taken up for final hearing forthwith.2. the petitioner and the respondent are husband and wife respectively, their marriage having been legally solemnized. the petitioner filed the petition for divorce in the family court at hyderabad. the petition came to be filed on the ground of cruelty. however, the title of the petition was shown thus:petition filed under section 13(1)(ib) of the hindu marriage act.3. it is undisputed that the averments made in the petition clearly make out a case only under section 13(1)(ia). the learned counsel appearing for the respondent after going through the marriage petition concedes that the averments made in the petition are touching the ground of cruelty only, set out in section 13(1)(ia) of the hindu marriage act, 1955. with a view to correct the said typographical error, an application was moved seeking amendment of the petition and the rejection on the said application has given rise to the filing of the present writ petition. it would not be out of place to mention at this stage that the present divorce petition was earlier filed in family court at hyderabad wherein an ex parte decree was passed and the respondent had moved an application for setting aside the ex parte decree before the family court at hyderabad. the respondent had also approached the supreme court with a request to transfer the marriage petition from hyderabad to goa as respondent is residing at goa along with her daughters and is gainfully employed at goa. the supreme court partly allowing the petition had directed transfer of the hindu marriage petition to goa from hyderabad. after the petition was transferred to goa, the trial court had rejected the application filed by the respondent for setting aside the ex parte decree and hence the respondent herein was constrained to approach this court pressing the prayer for setting aside the ex parte decree. this court set aside the ex parte decree of divorce passed in favour of the petitioner and directed the trial court to decide the marriage petition within a period of three months from the date of the order. after passing of the said order, the present petitioner had moved an application for amendment and the same was granted. however, at that time, the petitioner had not realised the typographical error appearing in the petition which wrongfully makes a mention to section 13(1)(ib) of the hindu marriage act and the said error remained to be corrected which prompted the petitioner to take out yet another application for amendment of the marriage petition. the error is obvious for two reasons, (1) that the entire petition is based on allegations in relation to cruelty and (2) what is mentioned is that the petition has been filed under section 13(i)(ib). clause (i) of sub-section (1) refers to a situation where the other party after the solemnization of marriage, had voluntary sexual intercourse with any person other than his or her spouse. whereas (ib) relates to desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. the marriage petition is pending since the year 2005 and no useful purpose would be served by denying the proposed amendment as i have no iota of doubt that the petition in fact has been filed for divorce on the ground of cruelty. the incorrect mention of the provision in relation to the sub-section cannot be permitted to defeat the cause of justice. moreso, by allowing the said amendment, no prejudice is to be caused to the respondent as she is aware of the ground on which the marriage petition has been filed. written statement refutes the allegations touching cruelty. the trial court has rejected the amendment application by placing reliance on the provide to order 6, rule 17 of the civil procedure code. in my view, the approach of the trial court is pedantic as the proposed amendment only relates correction of typographical error in the title of the petition. taking a pragmatic view of the matter the amendment deserves to be allowed.4. in the result, writ petition is allowed. the impugned order passed by the civil judge, senior division, panaji, in matrimonial petition no. 44/7/a, rejecting the amendment application dated 24-09-2008, is quashed and set aside and the amendment application stands allowed. the amendment shall be carried out within a period of two weeks from the date of receipt of the writ from this court. it has been brought to the notice of this court that the petitioner is instrumental in causing delay in the decision of the petition. there is substance in the said grievance made by the learned counsel for the respondent.5. in the result, without stipulating any time frame for disposal of the hindu marriage petition, i hope and trust the trial court will dispose off the marriage petition in accordance with law as expeditiously as possible. the petitioners shall pay a sum of rs. 5000/- by way of costs to the respondent. rule is made absolute in the above terms.