Madhumati Suresh Raut and anr. Vs. Namdeo Tukaram Yadav Since Deceased Through His Lrs. Ramchandra Namdeo Yadav 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 17/b/1989 was fixed for hearing on 29-1-1991. however, as the petitioners failed to appear before the court, nor were represented by any advocate, the said application came to be dismissed for default on the said day i. once it is apparent that the provisions of section 141 are applicable to the proceedings under order ix, it obviously would mean that it would apply to all miscellaneous proceedings arising in as well as pending in relation to the suit filed in the civil court. it is well-settled law that resort to powers under section 151 cannot be had when there are specific provisions dealing for particular circumstances arising in civil proceedings, may be either before the court of original jurisdiction or appellate jurisdiction. obviously therefore the article 122 which applies to the applications under order ix, rule 9 would also apply to proceedings in relation to the application for restoration of the application for condonation of delay, filed either in the suit as well as in the appeal. 15. besides, once it is clear that the legislature in its wisdom has provided a period of 30 days for filing the application for condonation of delay in filing appeal, it would lead to absurd result to interpret article 122 to exclude the application for restoration from condonation of delay from its ambit and to presume that it would enjoy the period of 3 years under article 137. 16. evidently, therefore even in case of application for restoration of the application for condition of delay, the provisions of article 122 of the said act would be attracted and on that count the lower appellate court having exercised its discretion in dismissing the application by the impugned order, there is no scope for contending that the court has failed to exercise its power or has improperly exercised its power while dealing with the application which was filed by the petitioners much beyond the period of limitation prescribed under the said article. the court below has clearly arrived at the finding that the provisions of article 122 of the limitation act are attracted in the matter and yet the petitioners failed to file even an application for condonation of delay, though the application for restoration of the application for condonation of delay was filed beyond the period of 30 days and the petitioners had failed to show any sufficient cause for such delay, the application was liable to be dismissed and accordingly has been dismissed.r.m.s. khandeparkar, j.1. the petitioners challenge the order dated 19-3-1991 passed by the additional district judge, baramati in civil miscellaneous application no. 16 of 1991. by the impugned order, the lower appellate court has rejected the application filed by the petitioners for setting aside the order of dismissal of the application for condonation of delay in filing the appeal by the petitioners.2. the respondents herein filed suit no. 149 of 1979 for specific performance of an agreement which was decreed on 7-10-1985 against the petitioners. the petitioners preferred an appeal in the lower appellate court and as there was delay in filing the appeal, it was accompanied by a miscellaneous civil application no. 809 of 1986 being an application for condonation of delay. originally the said application with the appeal was lodged in the district court at pune but subsequently it was transferred to the lower appellate court at baramati and registered as no. 17/b/1989. the said application for condonation of delay bearing no. 17/b/1989 was fixed for hearing on 29-1-1991. however, as the petitioners failed to appear before the court, nor were represented by any advocate, the said application came to be dismissed for default on the said day i.e. on 29-1-1991. the petitioners thereafter filed miscellaneous application no. 16 of 1991 for restoration of the miscellaneous application no. 17/b/1989. the same was filed on 11-3-1991. upon hearing the said application, the lower appellate court by its order dated 13-7-1991 dismissed the said application holding that the same was filed beyond the period of limitation and also that it was not accompanied by any application for condonation of delay, nor the petitioners had shown any sufficient cause for the delay. hence, the present petition.3. the learned advocate appearing for the petitioners, while challenging the impugned order, submitted that the lower appellate court erred in dismissing the application filed by the petitioners for restoration of the application for condonation of delay solely on the ground that the same was beyond the period of limitation, ignoring the fact that the application was under section 151 of the code of civil procedure, 1908, hereinafter called as 'the c.p.c.' and not under any other provisions of the civil procedure code and therefore the court below could not have held that the provisions of article 122 of the limitation act, 1963, hereinafter called as 'the said act' were applicable, but ought to have considered that the provisions of law of limitation which are attracted are comprised under article 137 thereof. drawing attention to article 122 of the said act, it was sought to be contended that it applies only in case of application for restoration of suit or appeal or an application for review or revision but it does not apply to the proceedings relating to the application for restoration of application for condonation of delay. in fact, according to the learned advocate, there is no specific provision prescribing the period of limitation for any such application and therefore the residuary provision under article 137 would apply to such proceedings. it was also further submitted that the legislature in its wisdom has made a specific provision under order 41, rule 19 for a situation arising out of dismissal of the appeal under rules 17 of order 41 of the civil procedure code but has not made any similar provision in relation to application for condonation of delay filed along with the appeal filed beyond the period of limitation and therefore such an application is required to be considered as one under section 151 and not under order ix of the civil procedure code.4. the learned advocate appearing for the respondents, on the other hand, has submitted that the application in question could not have been dealt with under section 151 of the civil procedure code in view of specific provision under section 141 read with order ix, rule 9 of the civil procedure code being available to deal with such applications and the same is also attracted at the stage of the appellate proceedings. being so, the provisions of article 122 would obviously apply to the application for restoration of the application for condonation of delay having been read along with the provisions of law comprised under section 141 of the civil procedure code read with order ix, rule 9 thereof. according to the learned advocate, therefore, no fault can be found with the impugned order.5. it is not in dispute that the order dated 29-1-1991, which was passed by the lower appellate court, was in relation to the application for condonation of delay in filing the appeal. undisputedly, therefore, the dismissal of the application was at the appellate stage and the provisions of order 41 of the civil procedure code were, therefore, attracted.6. in terms of rule 3-a of order 41 of the civil procedure code, when there is a delay in filing an appeal, same has to be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within the prescribed period of limitation. the sub-rule (2) of rule 3-a provides that if the court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal either under rule 11 or rule 13, as the case may be. evidently, therefore, the order which was passed on 29-1-1991 was in exercise of powers under order 41, rule 3-a of the civil procedure code.7. the rules 17 and 19 of order 41, to which reference is made on behalf of the petitioners, deal with the procedure for dismissal of appeal for appellant's default and for re-admission of appeal dismissed for default, respectively. the sub-rule (1) of rule 17 provides that where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called for hearing, the court may make an order that the appeal is dismissed and the rule 19 provides that where an appeal is dismissed under rule 11, sub-rule (2) or rule 17, the appellant may apply to the appellate court for re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called out for hearing or from depositing the sum so required, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. undisputedly, these provisions deal with the matters relating to the appeal itself and not in relation to any miscellaneous application filed either in the appeal or the application for condonation for delay in filing the appeal.8. the order ix, rule 8 of the civil procedure code provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. the rule 9(1) thereof provides that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. but he may apply for an order to set the dismissal aside and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. obviously therefore, when the suit is dismissed for default, the plaintiff may apply for setting aside of the dismissal order provided he is able to satisfy the court that there was sufficient cause for his non-appearance when the suit was called out for hearing.9. the section 141 of the civil procedure code provides that the procedure provided in the civil procedure code in regard to the suit shall be followed as far as it can be made applicable in all the proceedings in any court of civil jurisdiction and its explanation clause provides that the expression 'proceedings' includes proceedings under order ix of the civil procedure code. it was sought to be argued that the provisions of section 141 would apply to any proceedings other than the proceedings under the civil procedure code and therefore it would not apply to the proceedings in appeal which arises under order 41 of the civil procedure code and since there is no specific provision made as regards the restoration for the application for condonation of delay under order 41 and resort to the provision under order ix, rule 9 cannot be had to and such an application will have to be dealt with under section 151 of the civil procedure code and therefore the provisions of section 141 would not apply to such proceedings.10. the issue as to whether the provisions under section 141 apply only to the proceedings other than those arising under the civil procedure code or not need not be dealt with in the case in hand. suffice to observe that the explanation under section 141 specifically provides that in case of proceedings under order ix, the provisions of section 141 are applicable. once it is apparent that the provisions of section 141 are applicable to the proceedings under order ix, it obviously would mean that it would apply to all miscellaneous proceedings arising in as well as pending in relation to the suit filed in the civil court. obviously therefore the provision of section 141 would apply to the proceedings relating to an application for condonation of delay in filing the application for restoration of the suit filed under order ix, rule 9 of the civil procedure code.11. it is to be noted that under section 107(2) of the civil procedure code, it is provided that subject to what is provided in the sub-rule (1) of section 107, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the civil procedure code on the courts of original jurisdiction in respect of suits instituted therein. in other words, the appellate court is expected to exercise all the powers of the courts of original jurisdiction in relation to the proceedings at the appellate stage depending upon the facts and circumstances in each case.12. once it is apparent that the provisions of section 141 are attracted in case of proceedings for application for condonation of delay in filing the application for restoration of suit in exercise of powers under order ix, rule 9 of the civil procedure code, it would also apply to similar proceedings filed at the appellate stage in view of the provisions under section 107(2) of the civil procedure code. mere absence of specific provision in that regard in order 41 will not be sufficient to enable the court to invoke the powers under section 151 of the civil procedure code. it is well-settled law that resort to powers under section 151 cannot be had when there are specific provisions dealing for particular circumstances arising in civil proceedings, may be either before the court of original jurisdiction or appellate jurisdiction.13. undoubtedly, article 122 of the said act specifically relates to a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution. however, as already seen above, the proceedings under order ix, rule 9 includes the proceedings at the appellate stage also in view of the provision under section 107(2) of the civil procedure code. now, section 141 of the civil procedure code provides that the procedure applicable to suits also applies to the miscellaneous proceedings which include the proceedings under order ix, rule 9 of the civil procedure code. therefore, it would also apply to the application for restoration of the miscellaneous proceedings including the one filed for restoration of the application for condonation of delay. obviously therefore the article 122 which applies to the applications under order ix, rule 9 would also apply to proceedings in relation to the application for restoration of the application for condonation of delay, filed either in the suit as well as in the appeal. evidently, the provision of article 122 of the said act would be attracted even in cases of an application for restoration of the application for condonation of delay filed at the appellate stage.14. the article 137 of the said act deals with any other application for which no period of limitation is provided elsewhere in the said act. the expression 'any other application' would not include an application which is specifically or impliedly covered by any other article under the said act. as already seen above, the application for restoration of the application for condonation of delay filed under order ix, rule 9 of the civil procedure code either in the court of original jurisdiction or in the court of the appellate jurisdiction having been covered by the provision under article 122 of the said act, the provision of article 137 thereof will not be attracted.15. besides, once it is clear that the legislature in its wisdom has provided a period of 30 days for filing the application for condonation of delay in filing appeal, it would lead to absurd result to interpret article 122 to exclude the application for restoration from condonation of delay from its ambit and to presume that it would enjoy the period of 3 years under article 137.16. evidently, therefore even in case of application for restoration of the application for condition of delay, the provisions of article 122 of the said act would be attracted and on that count the lower appellate court having exercised its discretion in dismissing the application by the impugned order, there is no scope for contending that the court has failed to exercise its power or has improperly exercised its power while dealing with the application which was filed by the petitioners much beyond the period of limitation prescribed under the said article. the court below has clearly arrived at the finding that the provisions of article 122 of the limitation act are attracted in the matter and yet the petitioners failed to file even an application for condonation of delay, though the application for restoration of the application for condonation of delay was filed beyond the period of 30 days and the petitioners had failed to show any sufficient cause for such delay, the application was liable to be dismissed and accordingly has been dismissed.17. there is no case for interference in the writ jurisdiction in the impugned order and therefore the petition fails and is hereby dismissed. the rule is discharged with no order as to costs.