Jawahar Lal Vs. Chand Dhawan - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it was clearly held in durga das v. in this respect, we follow the earlier judgment of this court in gurcharan kaur's case (supra), as well as the judgment of the delhi high court in sushma's case (supra) where it was held that if the petition succeeds, a decree for restitution of conjugal rights, judicial separation, nullity or divorce has to be passed.j.v. gupta, c.j.1. this order will also dispose of civil revision petition no. 2998 of 1990, as both of them have arisen out of the same order of the additional district judge, amritsar, whereby on an application under section 24 of the hindu marriage act (hereinafter called the act), the wife was allowed rs. 2,000 as maintenance pendente lite and rs. 6,000 as litigation expenses. 2. the controversy between the parties is with regard to the jurisdiction of the court to grant permanent alimony under section 25 of the act in the context of the dismissal of the petition under section 13b of the act, for divorce by mutual consent. on august 23, 1985, the petition for dissolution of the marriage by a decree of divorce under section 13b of the act was filed in the court of the additional district judge, amritsar: the said application was dismissed as withdrawn on august 9, 1987, which order reads as under :'the applicant and the counsel for the parties have made their statements. as per their statements recorded separately, the main application under section 13 of the hindu marriage act and also application under section 24 and under section 26 of the act are dismissed as withdrawn. the parties are left to bear their own costs. file be consigned'.3. it has been stated at the bar and not disputed that after the withdrawal of the said application under section 13b, the husband filed a petition for divorce against his wife which is pending in the court at ghaziabad where the parties are said to have last resided. meanwhile the wife smt. chand dhawan filed an application under section 25 of the act, for permanent alimony. there she also moved an application under section 24 of the act for maintenance pendente lite which was allowed as observed earlier. both the parties feeling aggrieved have filed these two separate petitions. the case has been referred to this bench by the learned single judge because of the divergent judicial opinion expressed by this court on the question whether an application under section 25 of the act, was maintainable when no decree for divorce as such was passed and the petition under section 13b of the act, for grant of divorce by mutual consent, was dismissed as withdrawn.4. the learned counsel for the petitioner submitted that the application under section 25 is only maintainable if a decree has been passed under the act. according to the learned counsel, a decree means either a decree for divorce or a decree for restitution of conjugal rights as contemplated from sections 9 to 13 of the act. if the petition for divorce etc. is dismissed then no application under section 25 of the act is maintainable, as no decree can be said to have been passed in support of the contention, reliance was placed on sushma v. satish chander, (1984) 86 punjab law reporter delhi 16; durga dass v. smt. tara rani, 1971 punjab and haryana 141 (f.b.); guriant singh v. nachhattar kaur; 1981 hindu law reporter 246 (f.b.); gurcharan kaur v. ram chand, a.i.r. 1979 punjab and haryana 206; sarda bai v. shabti lal, 1989 (1) hindu law reporter 110; ranganatham v. shyamala, 1990(1) hindu law reporter 474; vinod chandra sharma v. rajesh pathak, a.i.r. 1988 allahabad 150= ii (1287) dmc 72 and harcharan singh v. nachhattar singh, (1987) 2 hindu law reporter 184=11 (1987) dmc 305.5. on the other hand, the learned counsel for the respondent submitted that the word 'decree' in section 25 of the act, means the decree-whether dismissing the petition for divorce etc. as such or passing any other decree. according to the learned counsel, the term 'decree' has to be given the same meaning as provided udder the code of civil procedure, (hereinafter called the code). in support of the contention, the learned counsel relied upon smt. swaran lata v. sukhvinder kumar, 1986(1) hindu law reporter 363;= =ii (1986) dmc 181 silla jagannadha prashad alias ramu v. silla lalitha kumari, 1988(1) hindu law reporter 26=i (1988) dmc 319 (db) and manilal veltj ganger v. smt. bhanumati manjlal ganger, 1987 (1) hindu law reporter 229=i (1987) dmc 205.5. as regards this court, the matter just came up for consideration in gurcharan kaur's case (supra). in paragraph 7 of the judgment, it was observed therein:'as regards the claim of alimony under section 25 of the act, the plain reading of the section envisages a situation arising after the dissolution of marriage. it was clearly held in durga das v. smt. tara rani, air 1971 punjab and haryana 141 (fb) cited by learned counsel for gurcharan kaur that an alimony application under section 25(1) of the hindu marriage act can be made after grant of a divorce decree'.6. however, similar point was raised in smt. swaran lata's case (supra). the above said judgment was not brought to the notice of the learned single judge. according to the said judgment, the words 'pass any decree' would not mean acceptance of an application under sections 9 to 13 of the act but it would also include dismissal of an application under those sections of the act. according to the learned judge some courts have taken decision under the law as it stood before the amendment of 1976, that the dismissal of an application is not a decree and therefore, on dismissal of an application relief under section 25 of the act could not be granted to an unprovided spouse. at that time section 28 of the act which provided for appeals from decrees and orders was differently worded. all decrees and orders were made appealable and if dismissal of an application was not to be treated as a decree it could be treated as an order and appeal lay therefrom and thus some distinction on that basis could be made. but after the amendment of 1976 while all decrees have been made appealable under section 28(1) of the act, the appealable orders are only those which are passed under section 25 or 26 of the act. if dismissal of an application under section 9 to 13 of the act is not to be treated as a decree then it won't be appealable at all under the act. this anomaly, if any, has been removed by the amendment of 1976 with the result that even dismissal of application under sections 9 to 13 of the act are decrees. according to the learned judge, the amendment has brought the proceedings under sections 9 to 13 of the act pari materia with the proceedings before the civil court because whether a suit is decreed or dismissed, decree is framed and is appealable as such.7. we have heard the learned counsel for the parties and have also gone through the case law cited at the bar.8. the view taken by the learned judge in smt. swaran lata's case (supra), is to be overruled. in this respect, we follow the earlier judgment of this court in gurcharan kaur's case (supra), as well as the judgment of the delhi high court in sushma's case (supra) where it was held that if the petition succeeds, a decree for restitution of conjugal rights, judicial separation, nullity or divorce has to be passed. but if the petition fails then no decree is passed i.e. the decree is denied to the applicant. accordingly the words in section 25 to the effect alimony can be granted when a decree is passed do not operate. that alimony can be granted on a proper construction of the act only when a decree has been passed. if a decree is refused, then no order for alimony can be passed. the word 'decree' is used in matrimonial cases in a special sense different from that in which it is used in the code. the amendment made in section 28 of the act in the year 1976 is of no consequence as regards the interpretation of the words 'passing any decree' occurring in section 25 of the act. the matter has been discussed in detail in the above-said judgment by the delhi high court. in paragraph 11 there of it has been held :'having examined the position before the court from all possible angles, we have no doubt that the power to grant alimony contained in section 25 of the act can only be exercised when the court is faced with the problem of settling the mutual rights of the parties after the matrimonial ties have been determined or varied by the passing of the kind of decrees mentioned in sections 9, 10, 11 and 13 of the act, and not in other cases'.9. a part from the above, in the present case, the petition under section 13b of the act, seeking divorce by mutual consent, was dismissed as withdrawn. the effect of that would be that there was no petition for divorce by mutual consent as such as the same was dismissing as withdrawn. the seeking of divorce by mutual consent is altogether different from claiming divorce otherwise under section 13 of the act. talking this view, we respectfully differ with the view taken by the andhra pradesh high court in silla jagannadha prasad alias ramu's case (supra). as a result, it is held that since the petition under section 13b of the act, seeking divorce by mutual consent was dismissed as withdrawn and no final order was passed, the application under section 25 of the act, as such was not maintainable. if the application under section 25 of the act as such was not maintainable, the question of grant of maintenance under section 24 of the act, did not arise. consequently, this revision petition succeeds. the impugned order is set aside and the application under section 24 of the act, is dismissed. civil revision petition no. 2998 of 1990 also fails and is dismissed. no costs.