P. Mohanasundaram vs M.S. Priya

R. Banumathi, J.—Being aggrieved by the judgment and decree in O.S. No. 12 of 2002 ordering a sum of Rs. 3,000/- per month towards

maintenance and also ordering the Appellant to pay the arrears of maintenance of Rs. 1,08,000/- and also to pay Rs. 5,00,000/- towards marriage

expenses, the unsuccessful Defendant/father of the Respondent has come forward with this Appeal.

There had been number of litigations between the Appellant and his wife which are not germane for this appeal. The Respondent who is none

other than the daughter of the Appellant, has filed the Suit in O.S. No. 12 of 2002 before the I Additional Family Court, Chennai, claiming

maintenance of Rs. 5,500/- per month and also claiming the amount for her marriage expenses. Initially, the Respondent has filed Pauper Original

Petition in O.P. No. 984 of 1998. In and by the order dated 18.06.2001 of the I Additional Family Court, the said Pauper Original Petition was

ordered to be converted as Suit in O.S. No. 12 of 2002. The Appellant has stoutly resisted the Suit contending that the Respondent/Plaintiff''s

mother is employed and that she herself is in a position to maintain the Respondent. The Appellant inter alias contended that the Respondent

cannot claim maintenance only from the Appellant and that the mother of the Respondent who is employed as a Lecturer, should also contribute

towards the maintenance and also the marriage expenses.

After framing relevant issues and after full trial, the learned I Additional Judge, Family Court, Chennai, has passed the judgment dated

19.11.2010, directing the Appellant to pay a sum of Rs. 1,08,000/- towards arrears of maintenance and a sum of Rs. 3,000/- per month towards

maintenance from the date of plaint till her marriage and also directing the Appellant to pay Rs. 5,00,000/- towards marriage expenses. Being

aggrieved by the judgment and decree in O.S. No. 12 of 2002 dated 19.11.2010, the Appellant has come forward with this Appeal and instead of

filing the regular Appeal, the Appellant has filed Civil Miscellaneous Appeal without paying the Court Fee.

The learned Counsel for the Respondent has raised strong objection as to the maintainability of the Civil Miscellaneous Appeal. According to

the learned Counsel for the Respondent, as against the judgment and decree passed by the Family Court, as per Section 19 of the Family Courts

Act, 1894, only a regular Appeal has to be filed. In view of the objection raised by the learned Counsel for the Respondent, we have asked the

learned Counsel for the Appellant to advance arguments on the question of maintainability of the Civil Miscellaneous Appeal.

The learned Counsel for the Appellant Mr. N. Rajan has submitted that the judgment and decree passed by the Family Court cannot be

construed as a judgment and decree passed by a Civil Court, as the Family Court has got only trappings of the Civil Court and therefore, the Civil

Miscellaneous Appeal preferred by the Appellant is well maintainable. The learned Counsel for the Appellant would further contend that in so far

as the appeals arising from judgments passed by the Family Court, no separate provision is made under Tamil Nadu Court Fees Act.

We have considered the submissions of the learned Counsel for the Appellant as well as the learned Counsel for the Respondent.

There is no force in the contention that the Family Court has got only the trappings of the Civil Court and that the judgment and decree passed

by the Family Court, cannot be construed as a judgment passed by the Civil Court. As per Section 7 of the Family Courts Act, a Family Court

shall:

(i) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in

respect of suits and proceedings of the nature referred to in the Explanation; and

(ii) for the purpose of exercising such jurisdiction under such law be deemed, to be a district court or, as the case may be, such subordinate civil

court for the area to which the jurisdiction of the Family Court extends.

In the explanation to Section 7 Sub-clause (f), the Family Court is vested with the jurisdiction to entertain a suit or proceeding for maintenance.

Exercising its power u/s 7, the learned I Additional Family Court Judge, converted the Pauper O.P. No. 984 of 1998 into the Suit and on being

satisfied that the Respondent has got no means, the learned Family Court Judge has converted the Pauper O.P. No. 984 of 1998 into the Suit. As

per Section 19 of the Family Courts Act, an appeal shall lie from every judgment or order, not being an interlocutory order of a Family Court to

the High Court, both on facts and on law. The judgment and decree passed by the Family Court in a maintenance Suit, is a regular decree as per

Section 19 of the Family Courts Act and hence, only an appeal could be filed and the Civil Miscellaneous Appeal cannot be filed.

In so far as the contention regarding the payment of Court Fee, the learned Counsel for the Appellant has submitted that Section 50 of the Court

Fees Act, provides for Court-Fee payable on suits for which, no provision has been made in the Tamil Nadu Court-fees and Suits Valuation Act,

1955. The said Act does not provide to any specific provision regarding payment of Court Fee on filing of the appeal arising from the judgment or

order of the Family Court and therefore, no Court Fee is payable on the appeal preferred by the Appellant.

In our considered view, the above contention cannot be countenanced. Section 22 of the Court Fees Act, deals with suits for money including

a suit for damages or compensation, or arrears of maintenance or annuities, or of other sums payable periodically, fee shall be computed on the

amount claimed. Section 52 of the Tamil Nadu Court Fees Act deals with appeals. As per this Section, the fee payable in an appeal shall be the

same as the fee that would be payable in the Court of first instance on the subject matter of the appeal. Since the appeal has been filed as against

the judgment passed in the maintenance Suit as per Section 52 of the Tamil Nadu Court Fees Act, the contention of the Appellant that no court fee

is payable or that the suit classified as the one for which no provision has been made in the Court Fees Act, cannot be countenanced. That apart,

such a contention cannot be raised for the first time in the appeal, when the Appellant has not chosen to challenge the order dated 18.06.2001, in

and by which the Family Court has converted the Pauper Original Petition in O.P. No. 984 of 1998 to the regular suit for maintenance.

For the foregoing reasons, the Civil Miscellaneous Appeal filed by the Appellant cannot be entertained. However, the learned Counsel for the

Appellant requested time for paying the requisite Court Fee on the regular appeal. The Appellant is granted four (4) weeks time to pay the Court

Fee, on such payment, the Civil Miscellaneous Appeal is ordered to be converted as a regular Appeal. No costs. Consequently, connected

miscellaneous petition is closed.