Vivek Damodar Malvi (Dr.) Vs. Vaidehi Vivek Malvi - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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 judgment of the first appellate court which is narrative in nature and is not adjudicative, since the appellate court has failed to formulate the questions which fell for determination, which exercise is a mandate of law under rule 31 of order xxxxi of the civil procedure code. 4. failure to comply with rule 31 of order xxxxi c. 13. it shall be within the powers as well the duty of the high court under section 103 of c. cannot be overlooked, even while entertaining and deciding a second appeal, it needs to be effectively enforced, as an unescapable rule and doctrine of law and dictate for justice.joshi a.h., j.1. this is an appeal by father who has suffered a decree for payment of maintenance. operative part of the decree reads as follows:in terms of prayer clauses (ii) and (in) below plaint para 13, it is ordered that defendant shall pay rs. 6,000/p.m. to the plaintiff from the date of filing of the suit i.e. 4/7/2003 till she attains majority.2. father's appeal against this decree has been dismissed by the first appellate court. the father is before this court in the present second appeal.3. the question agitated before this court as substantial question of law is as follows:the judgment of the first appellate court which is narrative in nature and is not adjudicative, since the appellate court has failed to formulate the questions which fell for determination, which exercise is a mandate of law under rule 31 of order xxxxi of the civil procedure code.4. failure to comply with rule 31 of order xxxxi c.p.c. is undoubtedly a substantial question of law.5. the question which this court has to inevitably consider is:whether the judgment and decree upheld by the first appellate court, is likely to be reversed if the appeal is admitted on the said substantial question of law indicated by the appellant?6. the background that the judgment of the appellate court is not happily formatted would ordinarily warrant scrutiny in the second appeal.7. pivotal-question of fact which arises in this appeal without which the point framed by this court in paragraph no. 5 cannot be answered is as to:whether the respondent daughter is entitled for maintenance?8. this court, however, cannot be oblivious to certain glaring facts namely:(a) due to death of mother of applicant in 1999, the applicant ku. vaidehi was in custody and care of her maternal grandfather, in the background of the allegation that the appellant had contracted second marriage and begot children in said 2nd wedlock.(b) the appellant-father has disputed the story of 2nd marriage and children etc., however his version did not find favour with the trial court.(c) for considerable time i.e. almost until filing of suit by the daughter for maintenance, the father did not file petition for her custody.(d) though later on he filed petition for custody, it was not seriously pursued and is reported to be dismissed in default.(e) in the petition for custody, father did not make attempts to secure visiting facility and rights.9. the above narrated facts and circumstances do go to show that right of maintenance of the daughter has crystallized.10. any glaring error in appreciation of evidence and fact finding is not shown. therefore it cannot be reasonably visualised seen that fact finding or any other illegality going to the root of the case has crept in. the decree for payment of maintenance therefore is not be seen to be likely to be reversed, as no other question arises in present appeal either of fact or of law.11. therefore, if at all the appeal is to be admitted, it is solely on limited question of compliance of rule 31 of order xxxxi, and even slightest possibility reversal of decree under appeal is not seen.12. in the aforesaid background this court has to consider the collective effect of section 103 and section 99 of the c.p.c.13. it shall be within the powers as well the duty of the high court under section 103 of c.p.c. to decide some undecided questions of facts if those arc shown arising. no questions of fact are shown undecided while passing impugned judgment and decree. therefore, there are no reasons coming forward as to why the high court should admit/entertain a second appeal under section 100 c.p.c. for scrutiny and adjudication of undecided facts.14. the decree under appeal otherwise results in doing justice between the parties. in this situation a second appeal need not, rather ought not to be admitted just because an error of procedural nature as to. manner of rendering a judgment has crept in which however does not result in doing injustice. the spirit of section 99 c.p.c. cannot be overlooked, even while entertaining and deciding a second appeal, it needs to be effectively enforced, as an unescapable rule and doctrine of law and dictate for justice.15. therefore, appellant has no case for admission too. in the result, this court finds that the appeal has no merit, and the same is dismissed at the stage of admission hearing.