Sayeed Khan Faujdar Khan Vs. Zaheba Begum - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - the petitioner and the respondent could not pull on well and on 11th september, 1996 the petitioner divorced the respondent. according to him the respondent had already received jahej articles as well as the amount of mehar as per the settlement arrived at between them.orderk.j. rohee, j.1. by this petition under article 226 and 227 of the constitution of india read with section 482 of the code of criminal procedure, the petitioner seeks to quash and set aside common judgment dated 31st december, 2003 passed by 2nd additional sessions judge, amravati in criminal revision no. 233/2002 and 258/2002 and judgment dated 1st october, 2002, passed by judicial magistrate, first class, court no. 5, amravati in misc. criminal application no. 18/2002.2. the petitioner is serving as senior clerk in maharashtra state road transport corporation, amravati. he owns a house and agricultural land. he is having grown up children from his first wife. after the death of his first wife, the petitioner married the respondent on 27th january, 1995. the respondent is m. a. b. ed. and was serving as a part-time teacher. the petitioner and the respondent could not pull on well and on 11th september, 1996 the petitioner divorced the respondent. after the divorce, he married third wife.3. the respondent filed an application for grant of maintenance under section 125 of the code of criminal procedure against the petitioner bearing misc. criminal case no. 87/ 97 on the ground of desertion. the said application was disposed of for want of prosecution in view of the joint pursis dated 17th july, 1999 filed by both the parties. by said pursis, the parties informed the court that the respondent (wife) received the articles of jahej as per list submitted and also the amount of mehar of rs. 15000/- and as such the respondent (wife) was not interested in prosecuting the application for grant of maintenance.4. the things did not rest there. the respondent (wife) filed an application under section 3 of the muslim women (protection of rights on divorce) act (25 of 1986) for reasonable and fair provision of rs. 25000/-, maintenance of rs. 15000/- for iddat period and return of remaining articles of jahej worth rs. 50000/-.5. the petitioner (former husband) opposed the application. according to him the respondent had already received jahej articles as well as the amount of mehar as per the settlement arrived at between them. according to the petitioner (former husband) it is for the wakf board to make reasonable and fair provision and for maintenance of the respondent (wife) who is a divorcee. hence, the petitioner (former husband) is not liable to pay maintenance to the respondent.6. the learned magistrate rejected the respondents' claim for jahej articles and maintenance for iddat period and allowed the respondents' claim for reasonable and fair provision to the extent of rs. 100000/-, both the parties challenged the said order by preferring separate revision application under section 397 of the code of criminal procedure. the revisional court confirmed the order passed by the learned magistrate, hence, this petition.7. i have heard shri b.m. khan, advocate for the petitioner (former husband). none appeared for the respondent (wife) though served.8. shri b.m. khan submitted that the earlier application viz. misc. crl. case no. 87/ 97 under section 125 of the code of criminal procedure was withdrawn by the respondent because of settlement. in view of the said withdrawal, the present application viz. misc. crl. case no. 18/2001 under section 3 of muslim women (protection of rights on divorce) act (25 of 1986) is barred by the principles of res judicata. in support of this submission shri b.m. khan relied on the following cases:i) daryao v. state of u.p. : [1962]1scr574 ii) state of u.p. v. nawab husain : [1977]3scr428 iii) sarguja transport service v. state transport appellate (tribunal m.p., gwalior) : [1987]1scr200 iv) suresh sakharam chaugule v. patel cotton press factory : (1994)iillj525sc v) shyam lal v. ch. charan singh haryana agrl. university 1999 air scw 4931 : 1999 s c c (l&s;) 10739. i have gone through these cases. they relate to the principle of res judicata and some of them have considered as to whether the said principle applies to the petitions under article 32 and 226 of constitution of india.10. in my humble view those cases would have no application to the present case because in the present case, there was no judgment on merits. the matter was settled between and joint pursis (exh. 20) was filed on the basis of which the application under section 125 of the code of criminal procedure was disposed of. though an order by consent does not operate as res judicata, such order is binding upon the parties thereto. a judgment by consent or otherwise is as effective as estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. thus, an order of compromise creates an estoppel by judgment.11. it may be noted that the muslim women (protection of rights on divorce) act (25 of 1986) came into operation on 29th may, 1986. the respondent moved application under section 125 of the code of criminal procedure in the year 1997. by the said application, the respondent claimed maintenance allowance of rs. 500/- per month. the said application was withdrawn by the respondent by joint pursis dated 17th september, 1999 which shows that the respondent (wife) has received articles of jahej as per the list submitted and also amount of mehar of rs. 15000/-. in view of the settlement, the respondent was not interested in prosecuting the case for grant of maintenance. the respondent, however, moved application under section 3 of the muslim women (protection of rights on divorce) act (25 of 1986) in the year 2001 for reasonable and fair provision of rs. 250000/- and maintenance of rs. 15000/- for iddat period. in view of the joint pursis dated 17th july, 1999, the settlement arrived at between the petitioner (former husband) and the respondent (wife), which resulted in withdrawal of the application under section 125 of the code of criminal procedure created an estoppel against the respondent to move application under section 3 of the muslim women (protection of rights on divorce) act (25 of 1986). the courts below committed an error in entertaining and allowing the application of the respondent under section 3 of the muslim women (protection of rights on divorce) act (25 of 1986). in the circumstances of the case, the respondent's application under section 3 of the muslim women (protection of rights on divorce) act (25 of 1986) is nothing but an abuse of the process of the court which necessitates invoking the inherent powers of this court under section 482 of the code of criminal procedure. the orders passed by both the courts below are without jurisdiction and cannot be sustained. hence, the order.

Judgment:
ORDER

K.J. Rohee, J.

1. By this petition under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner seeks to quash and set aside common judgment dated 31st December, 2003 passed by 2nd Additional Sessions Judge, Amravati in Criminal Revision No. 233/2002 and 258/2002 and judgment dated 1st October, 2002, passed by Judicial Magistrate, First Class, Court No. 5, Amravati in Misc. Criminal Application No. 18/2002.

2. The petitioner is serving as Senior Clerk in Maharashtra State Road Transport Corporation, Amravati. He owns a house and agricultural land. He is having grown up children from his first wife. After the death of his first wife, the petitioner married the respondent on 27th January, 1995. The respondent is M. A. B. Ed. and was serving as a part-time teacher. The petitioner and the respondent could not pull on well and on 11th September, 1996 the petitioner divorced the respondent. After the divorce, he married third wife.

3. The respondent filed an application for grant of maintenance under Section 125 of the Code of Criminal Procedure against the petitioner bearing Misc. Criminal Case No. 87/ 97 on the ground of desertion. The said application was disposed of for want of prosecution in view of the joint pursis dated 17th July, 1999 filed by both the parties. By said pursis, the parties informed the Court that the respondent (wife) received the articles of Jahej as per list submitted and also the amount of Mehar of Rs. 15000/- and as such the respondent (wife) was not interested in prosecuting the application for grant of maintenance.

4. The things did not rest there. The respondent (wife) filed an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) for reasonable and fair provision of Rs. 25000/-, maintenance of Rs. 15000/- for Iddat period and return of remaining articles of Jahej worth Rs. 50000/-.

5. The petitioner (former husband) opposed the application. According to him the respondent had already received Jahej articles as well as the amount of Mehar as per the settlement arrived at between them. According to the petitioner (former husband) it is for the Wakf Board to make reasonable and fair provision and for maintenance of the respondent (wife) who is a divorcee. Hence, the petitioner (former husband) is not liable to pay maintenance to the respondent.

6. The learned Magistrate rejected the respondents' claim for Jahej articles and maintenance for Iddat period and allowed the respondents' claim for reasonable and fair provision to the extent of Rs. 100000/-, Both the parties challenged the said order by preferring separate revision application under Section 397 of the Code of Criminal Procedure. The Revisional Court confirmed the order passed by the learned Magistrate, Hence, this petition.

7. I have heard Shri B.M. Khan, Advocate for the petitioner (Former husband). None appeared for the respondent (wife) though served.

8. Shri B.M. Khan submitted that the earlier application viz. Misc. Crl. Case No. 87/ 97 under Section 125 of the Code of Criminal Procedure was withdrawn by the respondent because of settlement. In view of the said withdrawal, the present application viz. Misc. Crl. Case No. 18/2001 under Section 3 of Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) is barred by the principles of res judicata. In support of this submission Shri B.M. Khan relied on the following cases:

i) Daryao v. State of U.P. : [1962]1SCR574

ii) State of U.P. v. Nawab Husain : [1977]3SCR428

iii) Sarguja Transport Service v. State Transport Appellate (Tribunal M.P., Gwalior) : [1987]1SCR200

iv) Suresh Sakharam Chaugule v. Patel Cotton Press Factory : (1994)IILLJ525SC

v) Shyam Lal v. Ch. Charan Singh Haryana Agrl. University 1999 AIR SCW 4931 : 1999 S C C (L&S;) 1073

9. I have gone through these cases. They relate to the principle of res judicata and some of them have considered as to whether the said principle applies to the petitions under Article 32 and 226 of Constitution of India.

10. In my humble view those cases would have no application to the present case because in the present case, there was no Judgment on merits. The matter was settled between and Joint Pursis (Exh. 20) was filed on the basis of which the application under Section 125 of the Code of Criminal Procedure was disposed of. Though an order by consent does not operate as res judicata, such order is binding upon the parties thereto. A Judgment by consent or otherwise is as effective as estoppel between the parties as a Judgment whereby the Court exercises its mind on a contested case. Thus, an order of compromise creates an estoppel by judgment.

11. It may be noted that the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) came into operation on 29th May, 1986. The respondent moved application under Section 125 of the Code of Criminal Procedure in the year 1997. By the said application, the respondent claimed maintenance allowance of Rs. 500/- per month. The said application was withdrawn by the respondent by joint pursis dated 17th September, 1999 which shows that the respondent (wife) has received articles of Jahej as per the list submitted and also amount of Mehar of Rs. 15000/-. In view of the settlement, the respondent was not interested in prosecuting the case for grant of maintenance. The respondent, however, moved application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) in the year 2001 for reasonable and fair provision of Rs. 250000/- and maintenance of Rs. 15000/- for Iddat period. In view of the joint pursis dated 17th July, 1999, the settlement arrived at between the petitioner (former husband) and the respondent (wife), which resulted in withdrawal of the application under Section 125 of the Code of Criminal Procedure created an estoppel against the respondent to move application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). The Courts below committed an error in entertaining and allowing the application of the respondent under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). In the circumstances of the case, the respondent's application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) is nothing but an abuse of the process of the Court which necessitates invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure. The orders passed by both the Courts below are without jurisdiction and cannot be sustained. Hence, the order.