Bhagwan Sahebrao Sonawane and ors. Vs. Ranjanabai Sahebrao Sonawane 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - explanation to section 20 mentions clearly that the 'parents' includes a childless step-mother. an aged man'.he has also :referred to the meaning of 'infirm' to mean, physically weak, especially through age; weak, irresolute (infirm of purpose). from the above, it is clear that the context in which the word 'aged' is used in section 20(1) of the said act, would obviously mean a very old person.s. radhakrishnan, j.1. heard learned counsel for the respective parties.2. rule. by consent. rule is made returnable forthwith and the revision is taken up for final hearing.3. the petitioners have challenged the order dated 6.7.1998 passed by the learned civil judge j.d. bhokardan, whereby the petitioners have been directed to pay the interim maintenance of rs. 150/- per month to respondent no. 1 and rs. 100/- per month to respondent no. 2 herein.4. mr. chatterji, learned counsel for the petitioners, at the outset, made it clear that he is not challenging this order with regard to the liability of such payment by sahebrao being the father of petitioner no. 1 bhagwan and father-in-law of petitioner no. 2 laxmibai to ranjana-respondent no. 1 being his second wife and minor son ram-respondent no. 2. mr. chatterji drew my attention to the provisions of section 18 and section 20 of the hindu adoptions and maintenance act, 1956 (for the sake of brevity, hereinafter, the said act). as per section 18 of the said act, it is the obligation of the husband to maintain the wife during her life-time. as far as petitioner nos. 1 and 2, namely, bhagwan and laxmibai are concerned, relevant s provision finds place in section 20 of the said act, which obliges that the children should maintain their 'aged' or 'infirm' parents. explanation to section 20 mentions clearly that the 'parents' includes a childless step-mother. the main thrust of the argument of mr. chatterji's argument is that bhagwan being the step-son is not liable to maintain respondent no. 1 ranjanabai, who is aged 40 years and she is not 'aged' and/or 'infirm'. he contends that section 20 imposes an obligation on children to maintain their aged and/or infirm parents and not as in the case of ranjanabai, who is neither aged nor infirm. he fairly concedes the liability of his father sahebrao to pay the aforesaid maintenance to his wife i ranjanabai and son ram.5. learned counsel for the petitioners submits that the petitioners are only challenging the aforesaid impugned order to the effect that petitioners, namely, bhagan, laxmibai and their minor son dadasaheb, are not liable to pay in law, as per section 20 of the said act, the interim maintenance of rs. 150/- per month to ranjanabai and rs. 100/- per month to minor son ram.6. mr. chatterji also referred to concise oxford dictionary, with regard to the meaning of 'aged' to mean, of the age of; aged very old; an aged man'. he has also : referred to the meaning of 'infirm' to mean, physically weak, especially through age; weak, irresolute (infirm of purpose). from the above, it is clear that the context in which the word 'aged' is used in section 20(1) of the said act, would obviously mean a very old person. this is clear from the words used in said section 'his or her i aged or infirm parent.........' that is to say, if the parents are very old or infirm, such a person would be included therein. obviously, in this case respondent no. 1 ranjanabai is not aged in the sense very old inasmuch as only 40 years old and admittedly, she is not infirm, in the sense bed-ridden or unable to move etc.7. mr. shirufkar, learned counsel contends that petitioner no. 1 being the step-son is liable to maintain his step-mother as per the explanation to section 20 of the act. he also contended that said sahebrao has manipulated the land record so as to avoid paying maintenance.8. the short point involved in this revision is that, whether a step-son, step-daughter-in-law and step-grandson could be directed to pay maintenance for step-mother, who is aged only 40 years. the provisions of section 20 of the said act are very clear to the effect that liability of children to maintain arises only in case of 'aged' or 'infirm' parents. in this case, there is no dispute that ranjana-respondent no. 1 is only 40 years of age which cannot be considered as an 'aged' person and she is not also an 'infirm' person. therefore, ex-facie, the petitioner no 1 step-son, step-daughter-in-law and step-grandson are not liable to maintain a step-mother, who is neither 'aged' nor 'infirm' which is a prerequisite.9. obviously, petitioner no. 2 is concerned, she is only step-daughter-in-law and petitioner no. 3 is only a step-grandson are not in any way concerned and liable to maintain said ranjanabai or her minor son.10. in the aforesaid facts and circumstances, the impugned order dated 6.7.1998 is quashed and set aside qua the petitioner nos. 1, 2 and 3, namely, bhagwan, laxmibai and dadasaheb are concerned. it is made clear that the order will subsist with regard to sahebrao who is the husband of the said ranjanabai respondent no. 1.11. accordingly the civil revision application is partly allowed. rule is made absolute partly. no order as to costs.office to issue writ forthwith. hamdast allowed.