Bhola Prasad Singh vs Smt. Usha Devi and Another

S.N. Pathak, J.—This Miscellaneous appeal has been filed against an order dated 4th October 2001, rejecting the prayer of the Appellant for restitution of conjugal right u/s 9 of the Hindu Marriage Act (hereinafter, in short, to be referred to as the ''Act''). There is objection of the Stamp Reporter that since the impugned order was a decree u/s 28 of the Act, First Appeal should have been filed, instead of Miscellaneous Appeal.

Heard on the objection of the Stamp Reporter.

It was submitted by the Appellant''s lawyer that Hindu Marriage Act is a special Act and therefore, decree passed on an application u/s 9 of the Act, shall not be a decree u/s 2(2) CPC and, therefore, Misc. Appeal shall lie and not the First Appeal. He relied on a decision passed by High Court of Andhra Pradesh reported in AIR 1961 AP 359. However, in this connection, I am to refer to Section 28 of the Act where it has been laid down that the orders passed on application under Sections 9, 12 and 13 of the Act, shall be decree. Section 21 of the Act laid down as under:

Subject to other provisions contained in this Act, and to such. Rules as the High Court may make in this behalf all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure, 1908.

The Civil Court Rules framed by the Patna High Court under Part-II, Rule 214 has laid down that for reliefs claimed under Sections 9, 11, 12 and 13, applications shall be filed. Rule 214(8) has stipulated that such petitions shall contain the particulars as listed therein besides the particulars mentioned under Order VII Rule 1 of the Code of Civil Procedure, which has listed particulars to be contained in a plaint to be presented before the civil court seeking relief. Rule 214(19) has stated that the Respondents of the application filed under the Act seeking a relief shall answer the petition and the particulars mentioned in Order VIII CPC shall be contained in W.S. to be filed against a petition filed under the Act. The aforesaid provisions of CPC and the Civil Court Rules clearly indicate that the application of divorce and restitution of conjugal rights etc. shall be in the form of a plaint and the answer to the petition shall be in the form of W.S. and the decisions rendered by the competent court shall be deemed to be a decree u/s 28 of the Act. ''Decree'' has been defined u/s 2(2) of the CPC as under:

''decree'' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question u/s 47 or Section144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Thus the prerequisite of a decree is that the proceedings is an adjudication should start in a suit. Section 26 CPC relates to Institution of suits which is as under:

Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

The High Court rules which I have mentioned above, clearly indicate that applications seeking relief under the Act shall contain the particulars of plaint and the answer shall also contain the particulars of a W.S. under the Code of Civil Procedure. So the petitions filed under the Act and the objections to the aforesaid petition have to contain all the particulars of a plaint and W.S. under the CPC and therefore, I am of the opinion that the application filed under the Act shall be deemed to be a suit and the decisions therein shall be deemed to be decrees under the Act. So it is clear that u/s 97 CPC appeal shall lie from the orders passed by the court having original jurisdiction to the Court to which appeal ordinarily lies. In this view of the matter, I am of the opinion that first appeal shall lie against the order passed u/s 9 of the Act and not simply Misc. Appeal.

The objection of the Stamp Reporter is, accordingly, sustained and the contention of the Appellant''s lawyer in this connection is held to be untenable. The Appellant shall be free to convert this Misc. appeal into one of First Appeal within 20 days.