Janki Amma Rajamma vs Krishna Pillai Narayana Pillai

Vithayathil, J.—The counter-Petitioner in Nair Act Petition No. 8/1124 of the District Munsiff''s Court, Krishnapuram, is the Appellant in this case. The Respondent who was her husband filed a petition u/s 5 of the Travancore Nair Act (Act 2 of 1100) for dissolution of the marriage. The Court below passed an ex parte order on 28-2-1123 dissolving the marriage. On 9-2-1950 the Appellant filed a petition to set aside the ex parte order on the ground that the notice of the petition for dissolution of marriage was not served on her. The Court below held that notice of the petition was properly served on the Appellant and dismissed her petition. The appeal is from that order.

A preliminary objection was taken on behalf of the Respondent that no appeal lies from the order of the Court below. Sub-Section 4 of Section 7 of the Nair Act provides for appeal from a decision of the District Munsiff relating to dissolution of marriage. That Sub-section reads thus:

Subject to the provisions of the Code of Civil Procedure, the Rules framed by Government under Sub-Section 8 of this section, and the provisions of the Limitation Regulation applicable to appeals from original decrees, an appeal shall lie to the High Court at the instance of any aggrieved party from any decision of the District Munsiff relating to dissolution, or award, or both, except when it relates exclusively to costs; and when an appeal is preferred, Court-fee shall be levied on the value of the subject-matter in appeal under the Court-fees -Regulation:

Provided that no appeal shall lie against a decision of the District Munsiff relating to the dissolution of marriage except on the ground of the decision being contrary to some law or usage having the force of law, or some substantial error or defect in the procedure or investigation of the case, which may have produced error or defect in the decision of the case.

This prevision applies only to a decision relating to dissolution of marriage or award of compensation. In the present case the order appealed from does not amount to a decision relating to dissolution of marriage or award of compensation. The order only refused to reopen a decision reining to dissolution of marriage. We are, therefore, of opinion that the order of the Court below does not come within the ambit of Sub-Section 4 of Section 7 of the Nair Act.

It was, however, argued on behalf of the Appellant that even if Sub-Section 4 of Section 7 of the Act would not apply to the case the provisions of the CPC relating to appeals will apply and that, therefore, the appeal is maintainable. Reliance was placed on Sub-Section 6 of Section 7 of the Act and Section 14l of the Code of Civil Procedure. Sub-Section 6 reads thus:

Save in so far as they may be inconsistent with anything contained in this section or with Rules framed by Government under Sub-section (8) of this Section, the provisions of the CPC relating to the trial of a suit shall apply to all proceedings under this Section.

Sub-Section 8 authorises the Government to frame rules for giving effect to the provisions of the Act. Rule 18 of the Rules made by Government is to the following effect:

Save in so far as it may be inconsistent with anything contained in the Regulation or these Rules, the law relating to the procedure of Civil Courts in the trial of civil suits shall apply to all proceedings in an enquiry." Section 141 of the CPC reads thus:

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.

Taking together the provisions in Sub-Section 6 of Section 7 of the Nair Act. Rule 18 and Section 141 of the CPC it is contended that the provisions of the Code relating to appeals apply to the order in question and that, therefore, the order is appealable as one passed under Order 9, Rule 13 of the Code. In such a case the appeal should be filed as a Civil Miscellaneous Appeal under Order 43, Rule 1 (d). It was argued for the Respondent that the provisions of the CPC relating to appeals do not apply to an order refusing to set aside an order passed under the Nair Act dissolving a marriage.

This question came up for consideration before a Full Bench of the erstwhile Travancore High Court in - ''Narayana Pillai v. Gouri Kutty Amma'' 28 TLJ 1 (FB). In that case the wife applied for dissolution of marriage and for compensation. The husband was in Colombo and notice of the petition was returned unclaimed from Colombo. The notice was subsequently published in the Government Gazette and the Munsiff passed an order ex parte dissolving the marriage and awarding compensation. Within 30 days the husband applied under Order 9, Rule 13 of the CPC to set aside the order. In the meanwhile, the wife married a second time and during the pendency of the petition had a child by the second husband.

The Munsiff rejected the petition of the husband holding that an application for setting aside an order passed u/s 7 of the Nair Act and for restoration of the petition to file did not lie. From this order. the husband preferred an appeal to the High Court. Chief Justice A. Varghese observed that since the wife had a child born in lawful wedlock by her second marriage it was impossible to place her in the position in which she was before the order for dissolution of marriage was passed and that, therefore, the order dissolving the marriage could not be set aside. The learned Judge gave the following reason for his conclusion:

Rule 18 of the Rules framed under the Nair Regulation provides that the CPC shall apply to all proceedings under the Nair Regulation except in so far as it may be inconsistent with anything contained in the Regulation or in the Rules. The Legislature evidently did not anticipate a grave possibility of the present kind and did not, therefore, formulate any rules with regard to such a contingency. But the whole conception of the Nair Act, with regard to marriage and divorce, clearly did not contemplate that any person should be forcibly deprived of his wife or that any child should be bastardised by setting aside a decree for dissolution of marriage. Under the circumstances the application of the Code of CPC in respect of this prayer must be regarded as coming within the exception contemplated in Rule 18.

It was, however, held that a petition under Order 9, Rule 13, Code of Civil Procedure, would lie as regards the award of compensation and the original petition was restored to file in so far as it related to claim for compensation. Joseph Thaliath J. while agreeing to the order allowing restoration of the original petition in so far as it related to compensation did not express any opinion regarding the larger question whether a petition under Order 9, Rule 13, would lie for setting aside an order of dissolution of marriage. Kumaran J. agreed to the order proposed by the learned Chief Justice without giving any reasons of his own. A reading of the report of this decision shows that the only question that was considered by the learned Chief Justice was whether a petition under order 9, Rule 13 would lie for setting aside an order of dissolution of marriage under the Nair Act. The question whether an appeal would lie from an order rejecting a petition for setting aside an order of dissolution of marriage was not considered by the learned Chief Justice.

The question for consideration in this appeal so tar as the preliminary objection is concerned is whether Sub-Section 6 of Section 7 of the Nair Act and Rule 18 read along with Section 141 of the Code of Civil, Procedure make an order refusing to set aside an order passed ex parte dissolving a marriage appealable, or in other words, whether the provisions of the CPC relating to appeals apply to an order passed under the Nair Act for which no special provision is made in that Act for appeal. We are of opinion that those provisions do not apply to an order passed under the Nair Act. In the first place, if the idea of the Legislature was to make all decisions and orders passed under the Nair Act appealable as decisions or orders passed under the Code of Civil Procedure, there was no necessity to make a special provision in Sub-Section 4 of Section 7 for appeal to the High Court from a decision relating to dissolution or award.

Ordinarily, when the subject-matter of the suit is less than Rs. 1000 appeal from the decision of the District Munsiff would lie not to the High Court bur to the District Court. But under Sub-Section 4 of Section 7 appeals from all decisions of the District Munsiff relating to dissolution of marriage or award of compensation under the Nair Act would lie to the High Court. In view of this special provision in the Nair Act relating to appeals it has to be taken that the Legislature did not intend that the provisions of the CPC relating to appeals should apply as such to decisions and orders passed under the Nair Act.

Sub-Section 6 and Rule 18 only make the provisions of the CPC relating to the trial of a suit applicable to proceedings under the Nair Act in so far as they are not inconsistent with the provisions of that Act. But the right of appeal is a substantive right which has to be conferred by the statute and it cannot be said that such a right is conferred by Sub-Section 6 of Section 7 or Rule 18. Neither can it be said that Section 141 of the CPC confers such a right on a party to a proceeding under the Nair Act. We may also refer to Section 4(1) of the Code of Civil Procedure. It reads thus:

In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

The Nair Art being a special law and there being a special provision in that Act relating to appeals it should be taken that the provisions of the CPC relating to appeal will not apply to that Act.

Reference may be made in this connection to the decision of the Madras High Court in - Neelam Suryanarayanamurti Naidu and Others Vs. Boggavarapu Satyanarayanamurti and Others, That was an appeal from an order dismissing an application for setting aside an ex parte order passed on a creditor''s application under "Section 19(A) of the Madras Agriculturists'' Relief Act. It was held in that case that Sub-Section 8 of Section 19(A) of the Agriculturists'' Relief Act made only the procedural provisions of the CPC applicable to the provisions of that Act and that it would not attract the substantive right of appeal conferred under Order 43, Rule 1(d) of the Code and that, therefore, no appeal would lie from an order dismissing an application for setting aside an ex parte order passed under the Act and asking for the re-hearing of the original petition of the creditor u/s 19 of the Act and that Section 26(a) of the Act which contained the provisions relating to appeals would not apply to such an order. Patanjali Sastri J. (as he then was) made the following observation:

It is contended for the debtors that Section 141, CPC which provides that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable to all proceedings in any Court of civil jurisdiction attracts the application of Order 43, Rule 1 to proceedings u/s 19(A). We fail to appreciate this argument. Before the amending Act of 1943, Section 141 was no doubt held to make the provisions of Order 9 applicable to proceedings under the rules framed under Act 4 of 1938 (Madras Agriculturists'' Relief Act). Sub-Section 8 of Section 19(A) of the Amended Act, however, now makes provision for the application of the procedure provided in the Code to proceedings u/s 19(A) and it is no longer necessary to invoke Section 141 for the purpose.

It is also difficult to see how either Section 141 or Sub-Section 8 of Section 19(A) which only makes the procedural provisions of the Code applicable to proceedings under the Act can also attract the substantive right of appeal conferred under Order 43 Rule 1(d). It has been repeatedly pointed out that a right of appeal is a creature of statute and is not in the nature of things. The provisions relating to rights of appeal under the Act are contained in Section 25(A), and they confer no right of appeal against orders of the kind here in question.

Reference may also be made to the decision in - Birendra Nath Biswas Vs. Monorama Devi and Others, That was a case in which an application for pre-emption u/s 26P of the Bengal Tenancy Act was dismissed for default. An application was then made for setting aside the dismissal and restoration of the application. That application was dismissed and the applicant appealed to the District Court. That Court held that no appeal lay from the order. In revision filed in the High Court it was contended that an appeal would lie from the order by reason of Section 141 and order 43. Rule 1 of the Code of Civil Procedure. Harries C.J. repelled this contention and observed thus:

Order 9 Rule 9 in terms is confined to suits and on the face of it the Order would have no application to a proceeding u/s 26P, Bengal Tenancy Act. as such proceeding is not a suit. Section 141 of the Code, however, provides that 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 a Court of civil jurisdiction. That being so, the procedure laid down by Order 9 Rule 9 though in terms applicable only to suits is also applicable to applications in a civil Court by reason of Section 141. It is then argued that if Order 9 Rule 9 applies to applications there is no reason at all why an appeal would not lie, because Order 43, Rule 1(c) provides that an appeal shall lie from an order under Order 9, Rule 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit.

The argument is that by reason of Section 141 Order 43, Rule 1 is made applicable to applications as well as suits. It is to be observed that Section 141 speaks of procedure. What is made applicable to all proceedings in a Court of civil jurisdiction is the procedure provided in the Code with regard to suits. Now, a right of appeal is admittedly a substantive right and not a procedural right. Section 141 does not deal with substantive rights and, therefore, Courts have held that though Order 9 Rule 9 is made applicable to applications other than suits, no appeal would lie from a dismissal of such an application under Order 43, Rule 1.

His Lordship referred to the decision of the Madras High Court in - ''Sadaya Padayachi v. Chinnaswarni Naidu'' 58 Mad 814. In that case an ex parte decree was passed against the Appellants and they applied under order 9 Rule 13 of the CPC to have it set aside. This application was dismissed for default. They then applied to have that order set aside and this was dismissed upon the merits. An appeal was filed from this latter order and it was contended that it would lie under Order 43, Rule 1(c) of the CPC by force of the application of Section 141 of the Code. It was held that Section 141 deals only with procedure whereas a right of appeal is a substantive right. To the same effect is the decision in - ''Hara Kumar v. Murari Mohan'', 69 Ind Cas 1003 (Cal). A similar view was taken in - ''Chander Sahai v. Durgha Prasad'' 46 All 538 , - Gajadhar Vs. Megha and Another, and - ''Jagdish Narain v. Harbans Narain Singh'' 43 Ind Cas 54 (Pat.).

Learned Counsel for the Appellant relied on a ruling of the Nagpur High Court in - AIR 1929 273 (Nagpur) . That was a decision by a1 single Judge In that case action was taken against the Appellant under order 39 Rule 2 of the CPC for disobedience of an order of injunction issued by the Court and he was ordered to be detained in the civil prison for one month. The order of injunction was passed in proceedings under the Guardians and Wards Act. It was contended for the Respondent that it was only by virtue of Section 141, CPC that the Court could act under Order 39, Rule 2, CPC and that that section did not confer a right of appeal. The learned Judge rejected that contention with the following observation:

When the CPC specifically gives a right of appeal against orders passed under Order 39 Rule 2, I am unable to hold that the Appellant is deprived of his right of appeal marely because the lower Court has acted under Order 39 Rule 2 by virtue of Section 141.

We do not think that we can accept this ruling as an authority for the position that a right of appeal is conferred on a party in all cases in which Section 141 of the CPC is made applicable to proceedings under a Special Act. Reference was also made to a decision of the Calcutta High Court in - ''Asad Ali v. Mohammed Hussain'' 43 Cal 986. That was a case of an application for appointment of a Common Manager u/s 93 of the Bengal Tenancy Act. The District Judge appointed a receiver pending disposal of the application. It was contended that the order made by the District Judge was without jurisdiction. The High Court held that the proceedings were in the nature of a suit and would attract the application of Order 40, Rule 1. This ruling also has no application to the present case.

Two other decisions referred to by learned Counsel for the Appellant are - ''Manohar Lal v. Rup Lal'' AIR 1936 Lah 712 and - ''Rup Lal v. Manohar Lal'' AIR 1936 Lah 863. The second case is a Letters Patent Appeal from the decision in the first case. In these cases the question that arose for consideration was whether an appeal from an order dismissing an application to set aside an order of dismissal for default of an application for probate was maintainable or not. It was contended that the provisions of Order 9, Rule 9 of the CPC would not apply to probate proceedings. This contention was overruled and the learned Judge observed thus:

Under Section 141, CPC the provisions of the Code are made applicable to all proceedings of a civil nature pending before the Courts and consequently Order 9 Rule 9 appears to be applicable because the proceedings relating to grant of probate are proceedings of a civil nature pending before a Court. u/s 299, Indian Succession Act, the proceedings relating to grant of probate have to take the form of a civil suit in which the applicant is a Plaintiff and the opponent is the Defendant. Section 299 of the Act provides that an appeal shall lie to the High Court from all orders passed by the District Judge in connection with proceedings pending before him for grant of probate. Therefore, so far as the statutory provisions of the Indian Succession Act read with the CPC are concerned there does not appear to be any prohibition to an appeal from an order refusing to set aside the dismissal of an application in default. In fact, I should say that Section 299 seems to permit an appeal from such an order.

This view was upheld by the Division Bench in the Letters Patent Appeal. It will be seen that this decision is based mainly on Section 299 of the Indian Succession Act. We, therefore, do not think that it applies to the present case.

For the above reasons we accept the preliminary objection raised by the Respondent and hold that no appeal lies from the order of the Court below.

Learned Counsel for the Appellant, however, prayed that the appeal may be treated as a revision petition and disposed of as such. Even if it is to be treated as a revision petition we do not think we shall be justified in interfering with the order of the Court below in so far as it refused to set aside the order dissolving the marriage. The Court below appreciated the evidence relating to the validity of the service of notice of the petition for dissolution of marriage and came to the conclusion that the notice was properly served on the Appellant. "The learned Munsiff has discussed the evidence of the witnesses examined on behalf of the Appellant. He had the opportunity of observing the demeanour of those witnesses and we do not think that we shall be justified in interfering in revision with the finding of fact based on appreciation of evidence. It has, however, to be noted that in this case the learned Munsiff has omitted to pass an order u/s 7, Sub-Section 3 of the Nair Act white dissolving the marriage. Sub-Section 3 of Section 7 relates to the passing of an order either allowing the petition for dissolution of the marriage or dismissing the same. While parsing such an order the Court is bound to pass Anr. order under Sub-Section 3 which reads thus:

At the time of passing the order referred to in Sub-Section 2:

(a) if the Petitioner is the husband and his prayer is granted the Court shall, except where the Respondent lives in adultery or has changed her religion, award to the wife such compensation not exceeding Rs. 5000 or such monthly allowance till her re-marriage as would be proper under the circumstances, having regard to the position, means and circumstances of the parties;

(b) if the Petitioner is the wife and her prayer is granted on the ground of adultery, habitual cruelty, or change of religion, the Court shall also decree in her favour such compensation not exceeding Rs. 5000 or such monthly allowance till her re-marriage as would be proper under the circumstances, having regard to the position, means and circumstances of the parties.

Since the Petitioner in this case is the husband it is Sub-clause (a) that applies to this case. According to this sub-clause, so long as it is not made out that the wife lives in adultery or has changed her religion the Court is bound to award compensation to the wife while dissolving the marriage. Since this is a mandatory provision of law the Court is bound to award such compensation even if the wife does not appear and contest the petition. It is clearly an omission on the part of the Court below not to have adverted to this provision of law while passing the order of dissolution of marriage.

We, therefore, direct the Court below in the exercise of our inherent powers to pass an order under Sub-Section 3 of Section 7 of the Nair Act awarding compensation to the Appellant according to law after taking such evidence as may be deemed necessary. The original petition will be restored to file for that purpose. The order of the Court below refusing to set aside the order dissolving the marriage will stand. Subject to this direction the appeal is dismissed. There will, however, be no order as to costs.