Aruna Kumari vs Dr. Ambrish Kumar Sengar

S.S. Jha, J.

Appellant-Aruna Kumari was married to respondent-Dr. Ambrish Kumar Sengar on 14-2-1993. A child named Shashank was born within the wedlock on 26-9-1994. On account of some matrimonial dispute, appellant was living with her parents at Vasco-de-Gama, Goa along with her son. Ex parte decree for divorce was passed in favour of the respondent by the Court at Udaipur in the State of Rajasthan. Respondent claimed that the Court at Udaipur has found that the husband and wife had last resided at Udaipur in the year 1998. After the said ex parte decree, respondent entered into second marriage. Respondent then submitted an application u/s 25 of the Guardian and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act for custody of the child Shashank in the Court of VIIth Additional District Judge. Gwalior. The then Seventh Additional District Judge. Gwalior passed an ex parte order dated 27-4-2002 and allowed the application u/s 25 of the Guardian and Wards Act in favour of the respondent directing delivery of custody of the son to the respondent. Having learnt that said ex parte decree has been passed, appellant filed an application under Order IX, Rule 13, C.P.C. for writing aside the ex parte decree on 4 9-2002 before the Court of VIIth Additional District Judge, Gwalior. Said application was returned to the appellant for presentation before the Family Court on 7-10-2002. Then application was filed before the Family Court setting out the grounds for setting aside the ex parte decree specifically alleging that notices were not served upon the appellant. Said application has been dismissed by the Family Court on the ground that the provisions of Order 9, Rule 13, C.P.C. are not applicable to the proceedings under Guardians and Wards Act. After rejection of the application, appellant has preferred this appeal before this Court u/s 19 of the Family Courts Act praying therein that the application under Order IX, Rule 13, C.P.C. before the Family Court was maintainable and order passed by the Family Court deserves to be set aside.

Objections were raised by the respondent that the order passed u/s 25 of the Guardian and Wards Act is appealable u/s 47 of the Guardian and Wards Act and since the order is not a decree, therefore, application under Order IX, Rule 13, C.P.C. is not maintainable. Family Court dismissed the application holding therein that since no decree is passed, therefore, application under Order IX, Rule 13, C.P.C. is riot maintainable.

Question involved in this case is when an ex parte order under the provisions of Guardian and Wards Act, whether provisions of Order IX, Rule 13 of the CPC are applicable?

Various High Courts have taken a view that Court under the Court of Wards Act is a Court of civil jurisdiction and therefore, provisions of CPC will be applicable. Section 141, C.P.C. specifically lays down that the Code will be applicable to every procedure and proceeding before the Court of civil jurisdiction.

Section 141, C.P.C. is reproduced below:

Section 141. Miscellaneous proceedings.- The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

Language of Section 141, C.P.C. is clear and specific. It provides that the procedure provided in this Code in regards to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. Thus, the Code will be applicable to any Court of civil jurisdiction.

Section 4(4) of the Guardian and Wards Act, 1890 defines District Court. Section 4(4) is reproduced below:

"District Court" has the meaning assigned to that expression in the CPC and includes a High Court in the exercise of its ordinary original civil jurisdiction.

Thus, the District Court while includes the High Court has the meaning assigned to that expression in the CPC in the exercise of its ordinary original civil jurisdiction. "Court" is defined u/s 4(5). Thus on bare reading of the definition, it is apparent that the Court which exercises the powers under Guardian and Wards Act is a Court of original civil jurisdiction.

While interpreting the scope of Section 141, C.P.C. Full Bench of this Court in the case of Nathu Prasad Vs. Singhai Kapurchand, has held in para 8 as under:

...There is no justification to read any such restrictive words in Section 141. The section is in general terms and the expression "as far as it can be made applicable" provides for the extent to which the section can be applied to a civil proceeding other than a suit. The expression "all proceedings" is of a very wide connotation and to restrict it to a proceeding, which is original in nature and wholly independent of a suit will be doing violence to the language of the section...

It has also been held that Section 141, C.P.C. will be applicable to a civil proceeding other than a suit; the expression "all proceedings" in the section is of wide connotation and to restrict it to a proceeding which is original in nature and wholly independent of a suit would be doing violence to the language of the section. Objection and purpose of Section 141, C.P.C. is that for economy of words, it was unnecessary to repeat the whole of the procedure in providing for procedure for an application.

While interpreting the words "proceedings in any Court of civil jurisdiction," it has been held by the Privy Council that any Court of civil jurisdiction includes not only the "original matters" in the nature of suits, but proceedings in probate, guardianship and so forth or divorce, or insolvency proceedings in the case of Thakur Prasad v. Fakir-ullah 22 IA 44 and Sarat Krishna Bose Vs. Bisweswar Mitra and Others, As long back in the case of Fakirullah v. Thakur Prasad (1890) 12 All 179, it was held that independently of the explanation, Section 647 (now Section 141) did not apply to applications for execution, but only to original matters in the nature of suits, such as proceedings in probates, guardianship, and so forth, thus overruling the Allahabad and Bombay cases. Apex Court held that Section 141, C.P.C. is not applicable to the execution proceedings in Dokku Bhushayya Vs. Katragadda Ramakrishnayya, . At the same time, it had further held that though the section does not apply to the execution proceedings, but the procedure provided in the Code in regard to suit does not apply to applications for execution of decrees, but will be applicable to other proceedings in any Court of civil jurisdiction. Judgment of Thakur Prasad (supra) had laid down that the provision apply to original matters in the nature of suits such as proceedings in probate, guardianship and so forth. However, the Apex Court in the case of Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and Another, considered the question whether the proceedings before Civil Court arising out of reference u/s 146(1), Cr. P.C. is a civil proceeding as contemplated by the section. In dealing with the question, the Apex Court observed that the expression "civil proceeding" in this section is not necessarily confined to original proceedings like suits or application for appointment of guardian etc., but that it applies to the proceeding which is not original proceeding. Thus, the Apex Court has held that this procedure is not applicable to the proceedings for appointment of guardian but also to the proceeding which is not the original proceeding.

In the case of Chandra Wati v. Jagan Nath Singh AIR 1925 Lah 489 it is held that application u/s 12 of the Guardian and Wards Act, 1890 is a proceeding in a Court of civil jurisdiction, hence, receiver may be appointed in such a proceeding under Order XL, Rule 1, C.P.C.

Apex Court in the case of Munshi Ram Vs. Banwari Lal, has held that the CPC is applicable to the proceedings under Arbitration Act, 1940.

In the case of Virabala and Others Vs. Shah Harichand Ratanchand, it is held that proceedings under Guardian and Wards Act are miscellaneous proceedings in a Court of civil jurisdiction within the meaning of Section 141 of the Code so as to attract the procedure provided in that Code as far as it can be made applicable. It is further held that where a Court having no territorial jurisdiction to entertain an application u/s 25 of the Act passes an order for the custody of the minor, the order can be set aside in appeal u/s 47(c) of the Act and the trial Court can be directed to return the application for presentation to the proper Court.

Division Bench of Calcutta High Court in the case of Ahmadar Rahaman Chaudhari v. Jaminiranjan Barna AIR 1950 Cal 385 has held that Section 12 of the Guardian and Wards Act empowers the Court to make such orders for the protection of property of a minor as it thinks fit. Discretion which is conferred upon the Court by this Court is wide one and there can be no doubt that it has power to appoint a receiver and the receiver when appointed must having regard to the provisions of Section 141, C.P.C. be deemed to have all the powers of a receiver under the Code. Those powers would include the power to sell where the adoption of such a course is deemed to be necessary for the protection of the interests of the minor.

In the case of Dwarka Das v. Pyare Lal AIR 1930 All 873 it is held that principle underlying Section 21, C.P.C. applies also to an application for setting aside an ex parte decree, by virtue of the provisions of Section 141, C.P.C.

In the case of Munshi Ram Vs. Banwari Lal, the Apex Court while considering the scope of Section 141 and applicability of the provisions of Order XXIII, Rule 3, C.P.C. in a proceeding under Arbitration Act, 1940 has held that the provisions of Section 141, C.P.C. are applicable to the proceedings under the Arbitration Act, 1940 and parties have power to compromise under Order XXIII, Rule 3, C.P.C.

In the case of Jairam Gurnani v. Smt. Shanta Gurnani ILR (1979) Delhi 99 it was held that CPC is applicable to the provisions under Hindu Minority and Guardianship Act, 1956 and Guardians and Wards Act, 1890. It is held that Guardian and Wards Act makes some provisions which are procedural in nature but in all other matters on which it is silent, procedure provided in the Code has to be followed in consequence of Sections 4 and 141 of the Code of Civil Procedure, following the judgment of this Court in AIR 1933 62 (Nagpur)

In the case of Bastar Transport and Trading Co. v. Court of Wards AIR 1955 Nag 78 it is held that the procedure provided in the CPC has to be followed so far as it can be made applicable in all proceedings in any Court of civil jurisdiction which includes the proceedings under the Companies Act.

In the case of Chandra Wati AIR 1925 Lah 489 (supra) it is held that a Judge before whom an application for the appointment of a guardian is pending has power to appoint a receiver but said power is to be exercised under the Code of Civil Procedure. It is held that by reason of Section 141, C.P.C. provisions of Order XL, Rule 1, C.P.C. could be utilised for the purpose of appointing a receiver.

In Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and Another, scope of Section 141, C.P.C. has been considered. The contention was that a proceeding upon a reference u/s 146(1) entertained by a Civil Court not being an original proceeding the provisions of Section 141, C.P.C. are not attracted and that, therefore, those provisions of the CPC which relates to suits are not applicable to proceeding undertaken by a Civil Court upon a reference to it u/s 146(1), Code of Criminal Procedure. While adverting to the expression "civil proceeding" in Section 141 it is held that it is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian etc., but that it applies also to a proceeding which is not an original proceeding.

In the case of Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot and Others, words "as far as it can be made applicable" occurring in Section 141, C.P.C. have been considered and it is held that Section 141, C.P.C. makes it clear that in applying the various provisions of the Code to proceedings other than those of a suit, the Court must take into account the nature of the proceedings and the relief sought. Thus if the nature of the proceedings is civil proceeding, then provisions of the CPC can be applied by virtue of Section 141, C.P.C.

In the case of Mst. Kiran Devi Vs. Abdul Wahid and Another, it is held that application for setting aside ex parte order u/s 25 of the Guardians and Wards Act, under Order IX, Rule 13 read with Section 141, C.P.C. will be maintainable and will be governed by Article 181 of the Limitation Act, 1908 and will not be governed by Article 164. While considering the question, it is held that there is a difference between the decree and order and by virtue of Section 141 application for setting aside ex parte order in a Court of civil jurisdiction in civil proceeding is maintainable.

In the case of Timan Lal Sahu v. Shivcharan Lal Sahu 2002 (1) MPLJ 64 CG Chhattisgarh High Court has held that Section 141, C.P.C. refers to the miscellaneous proceedings. It provides that the procedure provided in the CPC in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. The explanation appended to Section 141 further clarifies the provisions by saying that in Section 141 the expression "proceedings" includes proceedings under Order IX of the CPC but does not include any proceeding under Article 226 of the Constitution of India.

Counsel for the appellant further submitted that the order was passed without considering the welfare of the minor. He submitted that the order so passed was against the principles laid down by the Apex Court in the case of Jai Prakash Khadria Vs. Shyam Sunder Agarwalla and Another, .

As discussed above, it is apparent and clear that the Family Court committed a grave error in rejecting the application under Order IX, Rule 13, C.P.C. holding therein that the order passed u/s 25 of the Guardians and Wards Act is not a decree as such application under Order IX, Rule 13, C.P.C. is not maintainable.

Therefore, in our considered view, as discussed above, Family Court was not justified in holding that the said application was not maintainable. Family Court has not considered the import of Section 141, C.P.C. It is therefore, held that application under Order IX, Rule 13 read with Section 141, C.P.C. is maintainable before the Family Court. Family Court has committed a grave error in rejecting the application summarily.

It may further be mentioned that Section 10 of the Family Courts Act, 1984 provides that subject to the other provisions of this Act and the Rules, the provisions of the CPC 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings, other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. Therefore, u/s 10 of the Family Courts Act, said application was maintainable and the Family Court was bound to decide the application in accordance with law.

Now the next question which requires our attention is whether application for setting aside the order passed by the Court, other than a Family Court is maintainable before the Family Court. Normally, the Court which has passed the order should have decided the application for setting aside the ex parte order and in case the order is set aside, orders for transferring the original case should have been passed. Family Court shall also examine whether the Court which has passed the order had jurisdiction to pass such orders.

In the result, impugned order passed by the Family Court is set aside. Appeal succeeds with costs. Counsel''s fee as per schedule.