Where lies the forum of appeal

Appeal will lie before the High Court.

With due respect to the view of Dr.Tripathi, let me also submit that, right of appeal being a creature of statue and being a right conferred by statue cannot be inferred by implication. An appeal is not a mere matter of procedure but is a substantive rights. As to the appellate forum of appeal against adjudication by courts other than principal Civil Court of Original jurisdiction, such subordinate courts being invested by notification to matrimonial proceedings under the HMA are not District Court proper and irrespective of valuation an appeal would not lie against the decrees of such Courts to the High Courts. From the view expressed by Dr.Tripathi, it appears that there are divergents of opinion among the various High Courts on this score.

Dear Mr Assumi, subject to correction in view of any local Law, I suggested for appeal to High Court on the basis that: 1. the subordinate judge in this case is in the capacity of District Judge and 2. the query refers to subordinate  judge therefore it appears that Family court has not been established in the concerned district . however, if it is order of family court under Family Courts Act, appeal will lie to high Court under s 19 of Family Courts Act.

Note: In our High Court we are accustomed to proceed in accordance with Family Courts Act

You are not correct in the light of the judgement  of the Gujarth High Court in the case of Ramjibhai Lalbhai Patel vs Shantaben on 25/4/1984 where the court has observed as

"

    Ramjibhai Lalbhai Patel vs Shantaben on 25/4/1984

JUDGMENT

   1. The appellant. Ramjibhai Lalbhai Patel of Talod Taluka Prantij. District
Sabarkantha. is the husband of the respondent Smt. Shantaben. daughter of
Manilal Kashkanbhai Patel; The appellant had filed H. M. P. No. 18/ 79 in the
Court of the Civil judge (S-D). Ahmedabad (Rural) at Nerol under: Sec 13(1)(b)
of the Hindu Marriage Act 1955 as amended by Act No. 68 of 1976. to obtain a
decree of divorce of his marriage with the respondent on the ground that she had
deserted him for a continuous period of not less than two years immediately
preceding the presentation of the petition. The perusal of the Rajnama discloses
that on 19-9-1980 the record and proceedings were transferred from the Court of
the Civil Judge (S. D.). Narol to the Extra Assistant Judge Narol under the
orders of the District Judge. The matter was there after conducted and decided
by the Extra Assistant Judge. Narol who by his judgment and order dated
17-8-1981 dismissed the petition with costs. Hence, the appellant has preferred
this appeal.)

   (Paras 2 to 8 * * * * * *)

   9. When I started delivering the judgment Mr, R. N. Shah interrupted to
submit that he wanted to raise a question about the jurisdiction of this Court
to entertain and hear this appeal. He submitted that in the circumstances of the
present case appeal from the judgment of the Extra Assistant Judge Narol will
not lie in the High Court but that it would lie in the District Court to which
appeals ordinarily lie from the decision of the Extra Assistant Judge in the
exercise of its original civil jurisdiction. Although the issue was raised
belatedly, I heard both the learned Advocates on the issue as it was a
jurisdictional issue.

   10. A similar issue was raised in First Appeal No. 1158/81 which I decided on
2-4-1984: (reported in AIR 1984 NOC 258 (Guj)). It was also a matrimonial matter
and divorce was sought on the ground of legal cruelty and desertion for a
continuous period exceeding two Years immediately preceding the presentation of
the Petition. It was also a petition which was decided by the Extra Assistant
Judge Narol. Mr. G. D. Bhatt. Advocate .appeared for the respondent in ,that
matter and he raised a preliminary issue about the jurisdiction of this Court to
entertain and hear the appeal from the judgment and order of the Extra Assistant
judge. The contention was that an appeal would lie to the District Judge at
Narol and not to the High Court It was also submitted that the appeal before the
High Court was not competent. It was submitted in that appeal that in paragraph
17 of the original application it was stated that for the purpose of court-fees,
advocate-fees and jurisdiction the valuation was made at Rs. 5/- and a fixed
court-fees stamp of Rs. 37-50 was utilised for the purpose of court-fees. My
attention was invited to Sees. 16. 24. 25 and 26 of the Bombay Civil CourtsAct.
1869. Section 16 reads as under:-

     "16. original Jurisdiction of Assistant Judge. - The District Judge may
refer to anv Assistant Judge subordinate to him original suits of which the
subject-matter (is of any) amount or value, (applications or references under
Special Acts) and miscellaneous applications.

     The Assistant Judge shall have jurisdiction to try such suits and to
dispose of such applications (or references).

     Where the Assistant Judge's decrees and orders in such cases are
appealable, the appeal shall lie to the District Judge or to the High Court
according as the amount or value of the subject-matter does not exceed or
exceeds twenty thousand rupees."

   11. Section 24 of the said Act refers to jurisdiction of the Civil Judge
(Senior Division and jurisdiction of Civil Judge (Junior Division). It is
prescribed that the jurisdiction of a Civil Judge (Senior Division) extends to
all original suits and proceedings of a civil nature and the jurisdiction of a
Civil judge (Junior Division) extends to all original suits and proceedings of a
civil nature where in the subject-matter does not exceed in amount or value
twenty thousand rupees. Section 25 refers to the jurisdiction of Civil Judge
(Senior division), and states that a Civil Judge (Senior Division) in addition,
to his ordinary jurisdiction shall exercise a special jurisdiction in respect of
such suits and proceedings of a civil nature as may arise within the local
jurisdiction of the Courts in the district presided over by Civil Judges (Junior
Division) and wherein the subject-matter exceeds the pecuniary jurisdiction of
the Civil judge (Junior Division) as defined by Section 24. Section 26 of the
said Act refers to appeal from the decision of a Senior Division Judge of which
the amount or value of the subject-matter exceeds twenty thousand rupees the
appeal from his decision shall lie direct to the High Court.

   12. So far as the appeals from the orders and decrees of the Assistant Judge
is concerned. I have ascertained that under Section 16 it is prescribed that the
appeal shall lie to the District Judge or to the High Court according as the
amount or value of the subject-matter does not exceed or exceeds twenty thousand
rupees. The appellate provisions with regard to the appeals from orders and
decrees of the Civil Judge (S. D.) and from the decrees and orders of the
Assistant Judge are in pari materia.

   13. My attention was then drawn to Sections 8 and 9 of the Suits Valuation
Act. 1887. Section 8 relates to those cases wherein court-fee value and
jurisdiction value are to be the same. Section 9 is relevant for our purpose.
Sec tion 9 runs as under:-

     "9. When the subject-matter of suits of any class other than suits
mentioned in the Court-fees Act 1870. Section 7, paragraphs v and vi and
paragraph x, clause (d) is such that in the opinion of the High Court it does
not admit of being satisfactorilv valued. the High Court may with the previous
sanction of the State Government. direct that suits of that class shall for the
purposes of the Court-fees Act. 1870 and of this Act and any other enactment for
the time being in force be treated as if their subject-matter. were of such
value as the High Court thinks fit to specify in this behalf."

   Reading Section 9. it becomes clear that the Plaintiff or the applicant as
the case may be is entitled to put his own valuation for the purpose of
determining the jurisdiction under Section 9 of the Suits valuation Act. 1887.
In the above stated appeal that was precisely what the applicant had done at
paragraph 17 of his application. He had valued the suit for the purpose of
jurisdiction at 5/-. Under Section 16 of the Bombay Civil Courts Act. 1869.
referred to above, the appeal from the decision of the Assistant Judge would lie
to the District Judge and not the High Court as the amount or value of the
subject-matter as fixed by the appellant in his application does not exceed Rs.
20,000/-. Under Section 3(b) of the Hindu Marriage Act, 1955. "District Court"
is defined as under :-

     "3. (b) "district court" means in any area for which there is a city civil
court that court and in any other area the principal civil court of original
jurisdiction and includes any other civil court which may be specified by the
State Government by notification in the official Gazette, as having jurisdiction
in respect of the matters dealt with in this Act:"

   It is true that so far as the provisions of the Hindu Marriage Act and the
proceedings thereunder are concerned, an Assistant Judge would indeed be a
District Judge under Section 3(b) of the Hindu Marriage Act but he would not be
a District Judge for the purpose Of determining the forum of appeal as that
question does not fall within the ambit of the Hindu Marriage Act. 1955. Section
28 of the Hindu Marriage Act is very clear on this point. Section 28 runs as
under :-

     "28. Appeals from decrees and orders.(1) All decrees made by the court in
any proceeding under this Act shall subject to the provisions of sub-section
(3). be appealable as decrees of the Court made in the exercise of its original
civil jurisdiction. and every such appeal shall lie to the Court to which
appeals ordinarily lie from the decisions of the Court given in the exercise of
its original civil jurisdiction.

     (2) Orders made by the Court in any proceeding under this Act under See. 25
or Section 26 shall. subject to the Provisions of sub-section (3). be appealable
if they are not interim orders. and every such appeal shall lie to the Court to
which appeals ordinarily lie from the decisions of the Court given in the
exercise of its original civil jurisdiction." Under Section 28(1). the appeal
lies to the Court to which appeals ordinarily lie from the decision of the Court
given in the exercise Of its original civil jurisdiction. The forum of appeal is
prescribed under Section 16 of the Bombay Civil Courts Act and therefore for
determining the forum of appeal we must make a reference to Section 28 of the
Hindu Marriage Act. 1955 read with Section 16 of the Bombay Civil Courts Act.
1869 and that the forum would not be determined by the definition of "district
Court" under Section 3(b) of the Hindu Marriage Act, 1955.

   14. The above-stated Proposition finds support from the decision of the
Bombay High Court in the case of Gangadhar Rakhamaji v. Manjulal Gangadhar, AIR
1960 Bom 42 wherein this question has been considered fully. The decision of the
Division Bench in Appeal No. 234/ 58 was decided on 29-10-1958 and therefore the
ratio of the above judgment is binding on me. In Gangadhar's case (supra). the
Division Bench considered the submission placed before it that the Court of the
Civil Judge (S. D.) was a District Court under the definition of the "district
Court" as given in Section 3(b) of the Hindu Marriage Act, 1955 and that the
appeal would lie directly to the High Court. but that submission was negatived
by the Division Bench.

   15. In First Appeal No. 11581/81 upheld the preliminary objection raised by
Mr. G. D. Bhatt and I decided that the appeal which was filed in this Court was
not maintainable. Accordingly the direction was given that the appeal memo and
the papers filed with it be returned to the appellant for presentation to the
proper Court and the memo of the cross-objections be returned to the respondent.

   16. Mr. R. N. Shah submitted that my decision in First Appeal No. 1158 of
1981 applied to the present appeal also. He submitted that the appeal could have
been Preferred only to the District Court at Narol and that appeal in the High
Court was not competent.

   17. Mr. R. N. Shah referred me to several judgments besides my own in First
Appeal No. 1158/81 to elaborate the point. He referred me to Gangadhar
Rakhamaji's case (AIR 1960 Bom 42 (supra). The head-notes therein run as under
:_

     "Where in a Petition under the Hindu Marriage Act a decree is Passed by the
Court of the Civil Judge, Senior Division of Ahmednagar which Court was notified
by the State Govt. as having jurisdiction in respect of matters dealt with in
the Act the appeal lies to the District Court of Ahmednagar and not to the High
Court.

     The Court of the Civil judge. Senior Division which is notified by the
State Government as having jurisdiction in matters dealt with under the Hindu
Marriage Act is a "district Court" within the definition of Section 3(b) of the
Hindu Marriage Act but it is not principal Civil Court of original jurisdiction
nor does it exercise its jurisdiction as such principal Civil Court of original
jurisdiction. Section 28 of the Hindu Marriage Act leaves the forum of appeal to
be determined under the law for the time being in force, which in the present
case is the Bombay Civil Courts Act. The forum of appeal from the order or
decree of the Court of the Civil Judge, Senior Division under the Bombay Civil
Courts Act is the Court of the District Judge of the District. In the present
case therefore, which was decided by Civil Judge. Senior Division appeal lies to
the Judge and not to the High Court."

   18. Mr. Shah then referred me to another Division Bench ruling of the Bombay
High Court in the case of Ambi Pundalik v. Pundalik Shankar. AIR 1960 Bom 521.
It is observed that when there is no notification under S. 3(b), Hindu Marriage
Act specifying any other Civil Court as a District Court for the purpose of that
Act and the petition for restitution of conjugal rights under the Act is decided
by the Additional District Judge who is part and parcel of the District Court
then under clause (c) of S. 20 C. P. and Berar Courts Act the appeal from such a
decision will lie to the High Court and not to the District Court. It is to be
noted that in that case the decision was by the Additional District Judge who is
considered as part and parcel of the District Court. It was further observed
therein that Section 20 (b) (i) and (ii) of C. P. and Berar Courts Act read with
R. 311 framed under S. 9 of the Suits Valuation Act will not apply to such a
case because while those provisions speak of suits the proceeding under the
Hindu Marriage Act is not a suit. It was also observed that a special Court
having been created as the Court having exclusive jurisdiction under Hindu
Marriage Act it is not necessary to put a pecuniary valuation on the relief
clamed under that Act and the Proceedings do not fall under Section 20. C. P.
and Berar Courts Act. It is clear that I am not required to go into the
discussion of this reported case since the original decision was by the
Additional District Judge which was considered as part and parcel of the
District Court whereas in the present case the original decision is by the Extra
Assistant Judge. I may in passing note that the conclusion reached by the
Division Bench that the provisions of the Suits Valuation Act will not apply to
such matters because the matter was initiated by an application and not a suit
and that a Special Court was created as the Court having exclusive jurisdiction
under the Hindu Marriage Act is not followed by other Courts as per example the
Full Bench decision reported in AIR 1961 All 395 and the Division Bench decision
of the Orissa High Court reported in AIR 1978 Orissa. 163. A similar view was
also taken in the case of Mallappa v. Mallava,

   AIR 1960 Mys 292. It was observed therein as under (at p. 293):-

     "Though the Court of the Civil Judge, Senior Division, which is notified by
the State Government as having jurisdiction in matters dealt with under the
Hindu Marriage Act, is a District Court within the definition of Sec. 3(b) of
the Hindu Marriage Act. it is not principal Civil Court of original jurisdiction
nor does it exercise its jurisdiction as such principal Civil Court of original
jurisdiction. Where therefore. a Civil Judge. Senior Division dismisses a
petition under Section 12 of the Act. under Section 28. the forum of appeal has
to be determined under 'the law for the time being in force, which in the
present case is the Bombay Civil Courts Act and under Section 8 of the Bombay
Act an appeal from the order of that Court lies to the District Judge of the
District and not to the High Court."

   The Division Bench followed the principle laid down by the judgment of the
Division Bench of the Bombay High Court in Gangadhar's case (AIR 1960 Bom 42)
(supra):--

   19. A subsequent decision of a single Judge in the case of Dhulappa Shivaraj
Molke v. Krishnabai. AIR 1962 Mys 172. has followed the judgment of the Division
Bench in Mallappa's case (AIR 1960 Mys 292) (supra).

   20. Similar is the effect also of a decision of a single Judge in the case of
B. Balaji Singh v. B. Raj Kumari. AIR 1972 Mad 278. Maharajan. J. observed
therein as under.-

     "If the Petition under Section 25 or 26 of Hindu Marriage Act is disposed
of either by the principal Judge of the City Civil Court- or by the Additional
Judge thereof an appeal would lie straightway to the High Court if on the other
hand, it is, disposed of by an Assistant Judge of the City Civil Court an appeal
shall lie only to the Principal Judge especially in a proceeding where the
amount or value of the subject-matter does not exceed

     Rs. 5.000/-."

   21. A Division Bench of the Orissa High Court considered the question fully
in the case of Nrusingh Charan Nayak v. Smt. Hemant Kumari Nayak. AIR 1978
Orissa. 163. The observations are pertinent. The Division Bench observed as
under:-

     "Courts other than the principal Civil Court of original jurisdiction which
by notification made under Section 3(b) of the Act are conferred with
jurisdiction to entertain proceedings under the Act are not "District Court
proper" and irrespective of valuation an appeal would not lie against decrees of
such Courts to the High Court. The appellate forum has to be determined in
accordance, with the provisions of the local Civil Courts statute in the instant
case the Bengal, Agra and Assam Civil Courts Act. Therefore an appeal, valued at
Rs. 100/- against the decision in a suit for restitution of conjugal rights
would lie in the Court of District Judge. The first appeal in the High Court
would not be maintainable."

   Thus the Division Bench therein has taken a view on the question of valuation
for the jurisdictional, purpose different from the view taken by the Division
Bench in Ambi Pundelik's case (AIR 1960 Bom 521) (supra). The Division Bench in
Nrusingh Charan's case (supra) held as under:-

     "(1) Courts other than the Principal Civil Court of original jurisdiction
which by notification made under Section 3(b) of the Hindu Marriage Act are
conferred with jurisdiction to entertain proceedings under the Act are not
"District Court proper" and irrespective of valuation an appeal would not lie
against, decrees of such courts to the High Court.

     (2) The appellate forum has to be determined in accordance with the
provisions of the Bengal, Agra and Assam Civil. Courts Act. Where the dispute is
valued up to Rs. 5000/-, the appeal would lie to the District Judge when the
impugned decree is of a Court other than the Principal Civil Court of original
Jurisdiction. In a case where the valuation is above Rs. 5,000/- and the decree
is by a Court other than the Principal Civil Court of original jurisdiction the
appeal would lie to the High Court and

     (3) Where no valuation has been put in the proceeding and there is no
material to indicate that the appeal is valued at more than Rs. 5,000/- the
appeal would also lie to the District Court and not to the High Court because
under the provisions of the Bengal, Agra and Assam Civil Courts Act only on a
stated valuation. first appeals lie to the High Court."

   22. Thus the view taken by me in First Appeal No. 1158/81 stands supported by
the judgments of the other High Courts as well.

   23. However, there is a pertinent point of distinction between the facts of
First Appeal No. 1158/81 and the facts of the present case. In First Appeal No.
1158/81. the applicant had valued the application for the purpose of
jurisdiction at Rs. 5/- and a fixed court-fees of Rs. 37-50 was utilized for the
purpose of court-fees whereas in the present case the applicant has stated at
paragraph 16 of the application that "the court-fees stamp of Rs. 37.50 is
affixed on this petition and Vakalatnama and copy of the petition are filed
herewith." Thus the applicant has not put his own valuation on this application
for the purpose of Jurisdiction. A view was sought to be canvassed before me
that in such a case the appeal would lie to the High Court and not to the
District Court. A reference was made to a Full Bench judgment of the Allahabad
High Court in the case of Paras Ram v. Janki Bai, AIR 1961 All .395. Delivering
the decision of the, Full. Bench Desai. Acting C. J. Observed at page 396 as
under:-

     "A proceeding under See. 10 of the Hindu Marriage Act is to. be treated as
an, original. suit. Consequently an appeal from an order of a civil judge Passed
in such a proceeding lies to the District Judge if a certain condition is
fulfilled and to the High Court if it is not. The residuary power is thus vested
in the High Court and an appeal lies to the District Judge only if the condition
if, fulfilled. The value placed on the memorandum of appeal is of no consequence
.Every plaint must bear the value of the object matter of the suit for the
purposes of jurisdiction and of court-fees.

     When See. 8 does not apply. See. 9 applies and the value of the subjct
matter of the suit is to be fixed in accordance with the Rules made by the High
Court. No rules made by this court in, exercise of the Power conferred by
Section 9 -have been brought to our notice. Consequenty there is no law
directing how the value of the subject matter of a petition under See. 10 for
the Purpose of jurisdiction is to be fixed. The appellant, though by See. 21 of
the Act read with 0. 7. R. 1 (i) Civil P. C. to state the value of the subject
matter. did not state it. Presumably because be did not know how it was to be
fixed."

   24. This judgment runs counter to the view taken by the Division Bench of
this Court consisting of P. N. Bhagwati C. J. (as be then was) and D. A. Desai.
J. (as he then was) in the case of Chhagin Karsan v. Bhagwanji Punjab reported
in (1972) 13 Guj LR 835: (AIR 1973 Guj 165). It is, necessary for me to discuss
this judgment at length because I am required to follow the view taken of this
question in it.

   25. The appellant (the original plaintiff) filed Civil Suit No. 168/68 in the
Court of the Civil Judge (C. D.) Jamnagar claiming permanent injunction res-
training the respondents from obstructing the appellant in the exercise of his
right of way of his fields bearing Survey Nos. 719 and 732 through the Sbedba,
that is the boundary line of the field's of the respondent. Since the field of
the respondents over which the right of way was claimed by the appellant was
situate in the sir (sic) of Jamnagar. but outside its municipal limits, the suit
fell within Clause (c) of See. 6(iv)(c). of the Bombay Court-fees Act. , 1959
and a fixed court-fee of Rs. 15/- was accordingly paid by the appellant On the
plaint. The Civil Judge (Senior Division). Jamnagar referred the suit for
disposal to the second Joint Civil Judge (Junior Division). Jamnagar and after
the suit was transferred to him, written statements were filed on behalf of the
respondents in answer to the suit. Though several contentions were taken in the
written statement. none of them challenged the jurisdiction of the Second Joint
Civil Judge (Junior Division). Jamnagar to try and dispose of the suit. The
Second Joint Civil Judge (Junior Division). Jamnagar heard the suit on merits
and taking the view that on the evidence. the appellant had failed to establish
the right of wav claimed by him dismissed the suit. The appellant there upon
preferred Civil Appeal No. 18 of 1969 in the District Court. Jamnagar against
the decision of the Second Joint Civil Judge (Junior Division). Jamnagar. In the
appeal also no contention was raised on behalf of any of the Parties that the
Second Joint Civil Judge (Junior Division) Jamnagar, had no jurisdiction to try
and dispose of the suit and the decree passed by him was. therefore a nullity
and must be set aside. The appeal was heard by the District Judge on merits and
after considering the evidence on record. the District Judge came to the
conclusion that the right of way claimed by the appellant was not etablished and
he accordingly dismissed the appeal. This led to the filing of the Second Appeal
in this Court. When the Second appeal came up for hearing before M. U. Shah. J.
a new contention was sought to be advanced on behalf of The appellant that -the
subiect'- matter of the suit was not -susceptible of monetary evaluation and
therefore it could not be predicated that the suit was one wherein the subject
matter did not exceed in amount or value Rs. 10,000/-and consequently the Second
Joint Civil judge (junior Division). Jamnagar had no jurisdiction to try and
dispose of the suit. The suit could be, tried and disposed of only by the Civil
Judge (Senior Division), Jamnagar. This contention was supported by a decision
given by S. H. Sheth. J. sitting as a single Judge in Khimji Jiva v.
Narendrakumar (1972) 13 Gui LR 23: (AIR 1972 Cuj 280) M. U. Shah. J. framed two
questions and referred them for decision to a Division Bench. Those questions
were

     "(1) Whether the Civil Judge, Junior Division has power to deal with and
decide the suit. wherein the subject matter is incapable of monetary evaluation
having regard to the provisions contained in See. 24 of the Bombay Civil Courts
Act. - 1869 (Act No. XIV of 1869) ?

     (2) If the objection as to jurisdiction of the Civil Judge junior Division.
under Section 24 of the Bombay Civil Courts Act 1869 is not taken at an earlier
stage in the Court below then whether a plea of want of jurisdiction can be
allowed to be raised for the first time in appeal?" The Division Bench. speaking
through Bhagwati C. J., has observed that having regard to the provisions of the
Bombay Civil Courts Act. so far as valuation for the Purpose of jurisdiction is
concerned, there is no such thing as subject matter being incapab7e of monetary
evaluation. as in every case whatever be the nature of the suit the subject
matter has to be valued in terms of money for the purpose of jurisdiction. A
short reference was made to the scheme of the Bombay Civil Court's Act and in
the light of the provisions of that Act it was observed that if the subject
matter of the suit or proceedings does not exceed in amount or value 10,000/-
rupees the Civil judge, Junior Division, would have jurisdiction to try and
dispose of the suit or Proceedings and on the other hand if the subJect-matter
(of the suits) or proceeding is exceeds in amount or value Rs. 10.000/-, the
Civil Judge (junior Division) would have no jurisdiction and the suit or
proceedings would be triable only by the Civil Judge (Senior Division). The
difficulty would arise where the subject matter of the suit or Proceedings is
not capable of monetary evaluation. An argument was advanced before the Division
Bench that the second paragraph of Section 24 confers jurisdiction on a Civil
Judge (Senior Division) to try and dispose of all original suits and proceedings
of a civil nature without any limit or restriction and. therefore. every suit or
proceeding of a Civil nature would be within the jurisdiction of a Civil Judge
(Senior Division) irrespective of whether the value of its subject-matter
exceeds or does not exceed ten thousand rupees. It was further argued that where
the subject matter of the suit or proceedings is not capable of monetary
evaluation. it cannot be Predicated that the subject-matter of the suit or
proceedings does not exceed in amount or value Rs. 10.000/and in that event the
condition defining the jurisdiction of the Civil Judqe (Junior Division) would
not be satisfied and the suit or proceeding would be outside the jurisdiction of
the Civil judge (Junior Division),. It was further contended that a suit or
proceeding in which the subject matter is not susceptible of monetary evaluation
would not fall within the jurisdiction of the Civil Judge (junior Division)
under the third paragraph of Section 24 and would consequently be triable only
by the Civil Judge (Senior Division) who exercises full and unrestricted
jurisdiction to try and dispose of all suits and proceedings of a civil nature
by virtue of the second paragraph of Section 24. The Division Bench negatived
this argument after referring to the relevant Provisions of the Bombav Civil
Courts Act. particularly Sees. 22A to 25. The Division Bench observed as under
--

     "The combined effect of Secs. 24 and 25. therefore. is that the second
Paragraph of See. 24 confers ordinarv jurisdiction and Section 25 confers
special Jurisdiction on a Civil judge (Senior Division). The ordinary
jurisdiction extends to all original suits and proceedings of a civil nature.
arising within the local limits of his ordinary jurisdiction fixed bv the State
Government under See. 22A. It makes no difference for the purpose of ,his
ordinarv jurisdiction whether the subject matter of the suit or proceedings
exceeds or does not exceed in amount or value ten thousand rupees- The special
jurisdiction extends to such suits and Proceedings of a civil nature as may
arise within the local jurisdiction of the Courts in the district presided over
by Civil Judges (junior Division) that is, outside the local limits of the
ordinary jurisdiction and in which the subject matter exceeds in amount or value
ten thousand rupees. that being the limit of the peculiarly jurisdiction of the
Civil Judge (Junior Division). The third Paragraph of See. 24 provides for the
ordinary jurisdiction of a Civil Judge (junior Division). whether he is
presiding over a Civil Court in the district or is a joint Civil Judge appointed
or deputed to assist in the court of another Civil Judge. If a Civil judge
(Junior Division) is presiding over a Court in the district, his ordinary
jurisdiction would be confined to the local limits specified by the State
Government under See. 22A. But if he is appointed or deputed to assist in the
Court of another Civil Judge he would have no separate territorial jurisdiction
specified for him but he would dispose of such civil business within the limits
of his pecuniary jurisdiction as may, subject to the control of the District
Judge be referred to him by the Judge of the Court to which he is appointed or
deputed to assist. The pecuniarv jurisdiction of a Civil judge (Junior
Division), in neither case would be limited to suits and proceedings in which
the subject matter does not exceed in amount or value ten thousand rupees."

     In the background of the above said framework of the constitution of the
Court of Civil Judge (Senior Division) and the Court of the Civil Judge (junior
Division). the Division Bench considered the question as to what would happen if
the subject-matter of the suit or proceeding is not susceptible to monetary
evaluation. If the argument is correct that where the subject matter of the suit
or proceeding is not capable of monetary evaluation it cannot be predicated that
the subject matter does not exceed in amount or value ten thousand rupees and
,therefore, the suit or proceeding would not fall within the jurisdiction of
account of the Civil Judge (junior Division) under the third paragraph of
Section 24. The same argument must equally apply to negative the special
jurisdiction of the Civil Judge (Senior Division) in respect of the suit or
proceeding under See. 25. The special jurisdiction of the Civil Judge (Senior
Division) under Section 25 is attracted only where the subject matter of the
suit or proceeding exceeds the pecuniary jurisdiction of the Civil Judge (Junior
Division) that is ten thousand rupees, and if the subject matter of the Suit or
proceeding is incapable of monetary evaluation how can it be predicated that the
subject matter exceeds in amount or value ten thousand rupees and if it cannot
be so predicated. The condition defining the special jurisdiction of the Civil
Judge (Senior Division) would not be satisfied and the Civil Judge (Senior
Division) would have no jurisdiction to try and dispose of the suit or
proceeding. This would create an anomalous situation as neither the Civil judge
(Senior Division) nor the Civil Judge (junior Division) would have jurisdiction
to try such a matter. The Division Bench stated that the answer to such a
situation was clear. All suits and proceedings of civil nature are divisible
only into two classes one class of those where the subject-matter does not
exceed in amount or value ten thousand rupees and the other, of those where the
subject-matter exceeds in amount or value ten thousand rupees. The reason is
that in every suit or proceeding of a civil nature. the subject matter has to be
valued in terms of money for the purpose of jurisdiction. So far as the
valuation for the purpose of jurisdiction is concerned there has to be an
evaluation of the subject matter. The Suits Valuation Act.1887 lays down the
principle for valuation of the subject-matter of a suit for the purpose of
jurisdiction .But there may be suit where the subject matter may be capable of
being satisfactorily valued in terms of money and rules having been made by the
High court under sec.9 no guidance may be furnished by the Suits Valuation Act.
1887, as to how the subject matter such valuation may be accepted by the Court
as prime facie true unless the Court is satisfied that it is defective on
account of some improper motive in which case the court would always consider
what should be regarded to be the proper value. So, either the suit may be
valued for the purpose of jurisdiction as subject matter of the suit exceeding
Rs.10,000/- or below 10,000/- Where the subject -matter is incapable of
evaluation. The principle is clear that the plaintiff may put his own valuation
of the subject matter in the plaint and that would normally be accepted unless
the valuation is a male fide one. So,. in either case the suit cab be valued and
it is not correct to say that " the subject matter is incapable of monetary
evaluation." The result is that if valuation does not exceed ten thousand
rupees. The suit or proceeding would be within the jurisdiction of the Civil
Judge (Junior Division) if it exceeds ten thousand rupees , the suit or
proceedings would be within the special jurisdiction of the Civil Judge(Senior
division) . The same position would also obtain in case of a suit arising within
the local limits of the ordinary jurisdiction of the Civil Judge (Senior
Division). Having been discussed thus for the Division Bench observed: "The real
question therefore. Which have to be answered for the purpose of determining
which is the Court having jurisdiction to try a suit or proceeding is whether
the subject matter of the suit or preceding is beyond the limit of the pecuniary
jurisdiction the Civil judge not exceed the limit of the pecuniary
jurisdiction(Junior Division) would have no jurisdiction to the suit or
proceeding and it would have to go before the Civil Judge (Senior Division) in
the exercise of his special jurisdiction. Now. where the subject of may be suits
where the subject matter suit or proceeding is not susceptible of monetary
evaluation it may not be possible to predicate that the may not be capable of
being satisfactorily subject matter exceeds the iii-nit of Pecuniary
jurisdiction of the Civil judge (Junior Division) and in that event it valued in
terms of money and no rule should not fall within the special jurisdiction of
the Civil Judge (Senior Division but would come within the having been made by
the High Court ordinary jurisdiction of the Civil Judge (Junior Division). If it
cannot, be said of the subject matter. whatever be the reason , that it does not
exceed the limit of the Pecuniary jurisdiction of the Civil Judge (Junior
Division). St must follow as a necessary corollary that it is within the limit
of the pecuniary jurisdiction of the Civil Judge ( Junior Division). It will.
therefore be seen that though the test set out in the third paragraph of Section
24 is well formulated in negative terms. it is really a Positive test which has
to be applied and that test is whether the that in such cases the plaintiff may
subject matter is within the Pecuniary jurisdiction of the Civil Judge (junior
Division) which is ten thousand rupees.. To determine this we must ask the
question whether the subject matter exceeds ten thousand rupees if it and such
valuation may be accepted by does. the suit or Proceedings would be liable only
by the Civil Judge (Senior Division) but if it does it would be within the Court
as prime facie true unless there would be within the pecuniary jurisdiction. of
the Civil Judge (junior Division) and would be liable by him. The Court is
satisfied that it is defective division Bench observed:

     "If this be the correct construction of the third paragraph of Section 24
in its inter-relation with See. 25. it must also which case the court would
always could good when we read the third Paragraph with the second Paragraph of
S. 24. This view which we are taking is also supported by the fifth paragraph of
Sec- 23 where it has been Provided that a Joint Civil Judge (Junior division )
shall dispose of such civil business within the limits of his pecuniary
jurisdiction as may be referred to be valued for the purposes of jurisdiction.
The civil business referred to him must be within the limits of his Pecuniary
jurisdiction, it should (not) transgress those limits. It is, Therefore clear
that even if we are wrong, in the first Part of our reasoning, a suit or
Proceeding in which the subject matter is not susceptible of monetary evaluation
would fall within the ordinary jurisdiction of the Civil of Judge (junior
Division) under the third paragraph of See. 24 and the civil Judge (junior
Division) would be competent to try and dispose it of". b2

   As seen above. the Division Bench has observed that where it cannot be
predicated that the subject matter exceeds the limits of the Pecuniary
jurisdiction o f the Civil Judge (J. D.), for whatever reasons. the suit would
not fall within the pecuniary jurisdiction civil Judge(Senior Division) but it
would fall within the Pecuniary jurisdiction of the Civil judge(senior
division). The term "whatever may be the reason " would include a case in which
the plaintiff has not valued the subject matter of the suit for the purpose of
jurisdiction. Where the subject -matter is capable of monetary evaluation .The
term "whatever be the reason" for coming to the conclusion that the subject
matter does not exceed to the limit of the pecuniary jurisdiction of the civil
judge (junior division) is a pointer for deciding the question of jurisdiction
of the court and consequently for deciding the venue of appeal. The Division
bench has read Section 24 paragraph 3 and Section 25 together and then has
observed that the conclusion must hold good when the third paragraph of Sec.24
is read with second paragraph of Sec. 24. Thus the conclusion reached by the
Division Bench is clear in its effect so far as the present appeal is concerned.
The Pecuniary limits for jurisdiction are now changed and therefore where the
subject-matter of the suit exceeds the valuation or Rs. 20.000/- it comes within
the ordinary jurisdiction of the Civil Judge (Senior Division): where it does
exceed Rs. 20.000/- it could come within the. competence of the Civil judge
(junior Division). The plaintiff is entitled to Put his valuation of the subject
matter of the suit and therefore normally there would be no difficulty in
evaluating the value of the subject matter of the suit for the purpose of
jurisdiction; Where. however the Plaintiff has not Put his own valuation, on the
suit and if the subject matter of a suit or proceeding is not susceptible of
monetary evaluation. the suit or Proceeding would fall within the pecuniary
Jurisdiction of the Civil Judge -(Junior Division) and, not within the
competence of the Civil Judge (Senior Division) and this would be the effect
reached by reading section 24(3) and section 25 together as well as by reading
section 24(3) and section 24(2) together.

   26. The original petition is decided by the Extra Assistant Judge, Narol.
Now, see. 16 of the Bombay Civil Courts Act, 1869 provides that where the
Assistant Judge's decrees and orders in such cases are appealable, the appeal
shall lie to the District Judge or to the High Court according as the amount or
value of the subject-matter does not exceed or exceeds twenty thousand rupees.
Since the appellant did not put his valuation in the petition for the purpose of
jurisdiction I am bound to follow the effect of the judgment of the Division
Bench in Chagan Karsan's case (AIR 1973 Guj 165) (supra). I must uphold the
objection raised by Mr. R. N. Shah about the want of jurisdiction of this Court
to hear the appeal although it is raised at a belated stage.

   27. In the result, the present appeal filed in this suit is held not
sustainable for want of jurisdiction and therefore I direct that the appeal memo
and the papers with it be returned to the appellant for presentation to the
proper forum. There shall be no order for costs of this appeal.

   28. After the arguments on the question of jurisdiction were over, Mr. M. F.
Thakkar submitted- an application for amendment of the petition by Civil
Application No. 757/84. The amendment sought for is that "this petition is
valued at Rs. 30, 100/- for the purpose of jurisdiction and advocate's fees and
hence this petition is triable by this Court." The application was strongly
resisted by Mr. R. H. Shah. He has filed an affidavit-in-reply of the respondent
Shantaben. '

   29. Mr. Thakkar submitted that the application deserved to be allowed as it
is not a mala fide application. The valuation for the purpose of jurisdiction
was not placed in the petition through inadvertence and the application for
amendment is submitted to cure the defect. If this application is allowed, it
will nof affect the original trial as the matter would be triable only by the
Assistarit Judge. No fresh evidence is required to be taken. The original relief
is also not changed. The respondent is not likely to be prejudiced in any way.
In any case costs Will cure the grievance of the other side.

   30. As against that, Mr. R. N. Shah submitted that this application is given
at an extremely belated stage and only with a view to confer jurisdiction on
this Court to hear the appeal. The amendment is not covered by order 6, Rule 17
of the Civil Procedure Code. 0. 6, R. 17 of the Civil Procedure Code runs as
under : -

     "The Court may at any stage of the proceedings allow either party to alter
or amend his pleadings in such manner and on such terms as may be just, and all
such amendments shall be made as may be necessary for the purpose of determining
the real question in controversy between the parties".

   31. Mr. Shah submitted that this amendment has no reference to the real
question in controversy between the parties. What it seeks to cure is the defect
in the application relating to the valuation of the subject-matter for the
purpose of jurisdiction. This question cannot be said to be a real question in
controversy between the parties.,

   32. Mo. Shah also submitted that if the application for amendment is allowed,
it will have the effect of depriving the, opponent of a right to second appeal.
Such deprivation of a right of second appeal cannot be compensated by the order
for costs.

   33. Mr. Shah further submitted that the Division Bench judgment in Chhagan
Karsan's case AIR 1 973 (Guj 165(supra) indicates that a party co-Inot be
perinitied to place his own valtuation of the subject matter of the proceedings
for the purpose of jurisdiction where the intention is to bring the matter
within the competence of a particular Court. The Division Bench has referred to
a passage from the judgment of the Division Bench in the case of Jasoda v.
Chhotu, (1909) 11 Bom LR 1352. Chandavarkar J. delivering thejudgment of the
Division Bench observed (at Pp. 17071) :-

   It is contended before us on the authority of Aklemannessa 'Bibi v. Mahomed
Hatem, (1904) ILR 31 Cal. 849, that the suit for restitution of conjugal rights,
out of' which the second appeal arises, did not lie in the court of the Second
Class Subordinate Judge, by whom it was tried, because, according to the Bombay
Civil -Courts Act, that Court has jurisdiction to try no suit other than that
the subject matter of which is of the value of less than Rs. 5,000/-, whereas a
suit for restitution of conjugal rights (it is urged) is not one the subject-
matter of which can be valued. What is meant by this argument is, as we
understand it, that a suit for restitution of conjugal rights is not one the
subject matter of which can be precisely and definitely valued. In such cases
the law leaves it to the plaintiff to put his own valuation on the plaint and
accepts it for the purposes of jurisdiction unless it is vitiated by some
improper motive such as a deliberate design to give the court jurisdiction which
it has not. As was said in the case of Lakshman Bhatkar v. Babaji Bhatkar,
(1906) ILR 8 Bom 31, what prima facie determines the jurisdiction is the claim
or subject matter of the claim as estimated by the plaintiff, and this
determination having given the jurisdiction, the jurisdiction itself continues
unless a different principle comes into operation to prevent such a result or to
make the proceedings from the first abortive."

   The Division Bench in Chhagan Karsan's case AIR 1973 Guj 165 (supra) has also
taken the similar view. It has observed that it is now well-settled that in such
cases the plaintiff may put his own valuation on the subject-matter and such
valuation would ordinarily be accepted by the court as the correct valuation of
the subject-matter for the purposes of jurisdiction, unless the court comes to
the conclusion that a wrong valuation has been put by the plaintiff out of
improper motive, in which case the court would de6ide what should be considered
to be the proper valuation.

   34. It -is clear that the appellant has submitted his application for
amendment only with a view that this Court would have the jurisdiction to hear
the appeal.

   35. Mr. Shah also cited the case of Hans Raj Kalra v. Kishan Kalra, AIR 1977
NOC 267 (Delhi) reported in the AIR 1977 Notes Section. F. S. Gill, J. observed
as under:-

     "A court having no jurisdiction over the suit, inherent or pecuniary, is
not competent to allow amendment of the plaint, even if -the amendment sought
brings the suit within the court's jurisdiction."

   In that case also, the defendants contended that the High Court had no
pecuniary jurisdiction to try the suit, that the suit was not one for
declaration simpliciter but included consequential reliefs flowing from the
declaratory reliefs sought, that therefore it fell under S. 7(iv)(c) of the
Court Fees Act 1870 so that under S. 8 of the Suits Valuation Act, valuation
given for court-fee purposes was the valuation for jurisdictional purpose as
well. The plaintiff sought to amend the valuation portion to change
jurisdictional value of declaration. The plaintiff pleaded that since due to
oversight valuation for court fee purposes had not been given in the prayers,
the amendment should be allowed and that this would bring the suit within the
pecuniary jurisdiction of the Court. Upholding the defendant's plea it was held
that the amendment could not be allowed since the suit as originally brought was
not within the pecuniary jurisdiction of the court. The plaintiffs contention
that valuation for court-fee purposes was not given due to omission was rejected
stating that court-fee of Rs. 20/- having been paid the plaintiff must be taken
to have valued the prayer for purpose of court-fee at Rs. 200/- by necessary
implication. The change of value of declaratory relief was in respect of value
for jurisdictional purpose and not for court fee purpose. (The same is the case
in the Present case). The valuation given for court-fee purpose held good for
jurisdictional purpose for the suit of this kind by reason of S. 8 of the Suits
Valuation Act. plaintiff's artificial valuation of declaration relief at Rs.
50,000/- for jurisdictional purpose could not be accepted in the place of
valuation At Rs. 200/-, i. e. value fixed by plaintiff for court-fee purpose.

   36. In the light of the view taken in Chhagan Karsan's case AIR 1973 Guj 165
(supra) and Jasoda's case (1909-11 Bom LR 1352) (supra), I am of the view that
the present application for amendment cannot be sustained. Mr. K. F. Thakkar
referred me to the observations made in the case of Jai Jai Ram Manohar Lal v.
National Building Material Supply, AIR 1969 SC 1267. The observations therein
are to the effect that rules of procedure are intended to be a handmaid to the
administration of justice and a party cannot be refused just relief merely
because of some mistake, negligence, inadvertence or even infraction of the
rules of procedure. Here, it is not a question of the refusal of a just relief
to the appellant. The present application for amendment relates to a question of
jurisdiction and even if the amendment is disallowed the effect will not be to
refuse just relief to the appellant, but the effect will be that the matter will
go to the correct forum for deciding the appeal.

   37. The application for amendment is dismissed for the grounds above-stated.

   38. This is an old appeal of 1982. The original petition was presented by the
appellant on 29-6-1979 as disclosed by the copy of the Rojnama which is before
me .The matter is, therefore, required to be expeditiously dealt with. 1,
therefore direct that the Court before which the appeal is presented shall give
this appeal a top priority and that it shall be disposed of within six months of
its presentation.

   39. Order accordingly.

 
  

Thank you mr ramkrishnan for citing a 25 years old ruling of single judge of high court that was delivered before enactment of Family Courts Act, 1985. It is true that forum of appeal can not be other than one specifically provided in the statute. Therefore, where Family Courts have not been established, a combined reading of relevant local Civil Courts Act and Hindu Marriage Act/ relevant matrimonial Law is necessary for ascertainment of proper appellate forum.

What a strange conflicting legal system within our country or even within States where Law defers from district to district. In one district cases are heard by magistrate/civil judge and appeal before DJ and in another, similar cases are heard by Family Court (DJ rank) and appeal before two judges of the High Court !!!!!!!!!!

The basis of above cited judgment - pecuniary jurisdiction !!! Technically all right !!!!

And the valuation of matrimonial life of couples [petition under under s 13 (1) (b)] : Rs. 5/- only. !!!! Technically all right !!!

would you be able to clarify the difference between domcile and residence in respect of matrimonial causes

Thi Madras High Court  judgement will help

 Valliammal Ammal vs Periaswami Udayar on 3/3/1959

ORDER

   Ramachandra Iyer, J.

   1. These matters have been referred by the office for directions as to the
maintainability of the above appeals. S. R. No. 37109 is an appeal against an
order for judicial separation under S. 10(1) of the Hindu Marriage Act of 1955.
The petition for judicial separation was filed by the husband on 10-9-1957 in
the Sub-Court, Tanjore. S. R. No. 14179 is an appeal against an order dismissing
an application for divorce. That petition was filed by the husband who is the
appellant on 17-12-1956 in the District Court of Tiruchirapalli.

   The petition was later transferred by the District Judge to the Subordinate
Judge of Tiruchirapalli, who passed an order dismissing the petition. S. R. No.
27783 is a C. M. S. A. against an order of the District Judge of South Arcot at
Cuddalore, reversing the order of the Sub-Court and granting a decree for
restitution of conjugal rights. The application was filed in the year 1956
originally in the District Court It was later transferred for disposal to the
Subordinate Judge. The Subordinate Judge dismissed the application. On an appeal
filed to the District Court by the husband an order for restitution of conjugal
rights was passed. A C. M. S. A. is sought to be preferred to this Court against
the order.

   2. These references raise a question as to whether an appeal against an order
passed by the Subordinate Judge under Sections 10, 13 or 9 of the Hindu Marriage
Act, 1955 would lie to the appropriate District Court or to the High Court
direct. Prior to the passing of the Central Act XXV of 1955, there was a
legislation in this State in respect of certain matrimonial disputes amongst
Hindus. The Madras Hindu Bigamy Prevention and Divorce Act of 1949 declared all
bigamous marriages by a Hindu void and punishable. It also provided for
dissolution of certain marriages. Jurisdiction under that Act was given to the
Subordinate Judges, District Judges and City Civil Judges within the limits of
whose jurisdiction the marriage was solemnised or the respondent resided.
Against any order passed on the petition by anyone of the aforesaid Judges an
appeal was declared to lie directly to the High Court.

   3. The Hindu Marriage Act, 1955, Act XXV of 1955, was passed to codify the
Hindu Law of Marriage. By so doing it has effected important changes in the
marriage law. It granted rights of divorce, judicial separation and permanent
alimony. It is unnecessary for the present purpose to refer to the Other changes
introduced by the Act in regard to the Hindu law relating to marriages. The Act
also provided for remedy in respect of the new rights created by it. The Act
dealt with the preexisting rights of either of the spouses to sue in a civil
court for restitution of conjugal rights. Section 9 provided for restitution of
conjugal rights; Section 10 for judicial separation. Sections 11 and 12 related
to void and avoidable marriages and Section 13 related to divorce.

   4. Section 19 prescribed the court to which a petition under the Act should
be made: It runs as follows:

     "Every petition under the Act shall be presented to the District Court
within the local limits of whose ordinary original civil jurisdiction the
marriage was solemnised or the husband and wife reside or last resided
together."

   The term "District Court" has been defined in Section 3(b) of the Act as
meaning

     "In any area for which there is a City Civil Court, that Court, and in any
other area the Principal Civil Court of Original Civil Jurisdiction and:
includes any other civil courts which may be specified by the State Government
by notification in the official gazette as having jurisdiction in respect of
masters dealt in this Act."

   Under the authority conferred by this Act the State-Government has issued G.
O. 221, Home, dated 29-1-1957, empowering the Subordinate Judges of the various
places to hear proceedings arising under the Act within their respective
jurisdiction. Section 28 of the Act deals with the execution of orders passed by
the court and also provides for a right of appeal. That section states

     "All decrees and orders made by the court in any proceeding under this Act
shall be enforced in like manner as the decrees and orders of the court made in
the exercise of its original civil jurisdiction ore enforced and may be appealed
from under any law for the time being in force; provided that there shall be no
appeal on the subject of costs only."

   5. On a reading of Section 19, it is clear that the jurisdiction under the
Act is given to an existing, civil court. It is no doubt true that rights un-
known previously to the Hindu law are created by the Act. But the remedy in
respect of those rights which are civil rights are given to the existing courts
and should therefore be deemed to be an extension of their jurisdiction. Section
21 provides for the application of the rules of civil procedure in the absence
of any special rules being made by the High Court for the conduct of the trial
of petitions under the Act. Section 28 which I have set out above also
emphasises this aspect.

   6. Section 28 while it gives a right of appeal to the aggrieved spouse does
not prescribe the forum. It simply says that appeals would lie as if they were
decrees or orders of the court. Section 28 recognised the well-established
principle in regard to procedure when a new jurisdiction was given to an
existing court. The rule has been stated by Viscount Haldane, Lord Chancellor in
National Telephone Co. v. Postmaster General, L.R. 1913 AC 546, thus:

     When a question is stated to be referred to an established court it, in my
opinion, imports that ordinary incidents of the procedure of that court are to
attach and also that any general right of appeal from its decision likewise
attaches."

   In Secretary of State v. Chellikani Rama Rao, ILR 39 Mad 617; (AIR 1916 PC
21) jurisdiction to decide certain disputes under the Forests Act was given to
the District Judge. There was no provision under the Madras Forests Act for an
appeal. The question arose whether an appeal would lie against an order by the
District Judge under that Act. At page 624 (of ILR Mad): (at p. 23 of AIR), Lord
Shaw observed:

     "When proceedings of this character reach the District Court, that Court is
appealed to as one of the ordinary courts of the country with regard to whose
procedure, orders and decrees the ordinary rules or civil procedure can be
applied."

   To the same effect is the judgment of the Privy Council in Adaikappa Chettiar
v. Chandrasekhara Thevar, ILR 1948 Mad 505: (AIR 1948 PC 12), where their
Lordships held that where a legal right was in dispute and the ordinary courts
of the country were seized of such dispute the courts were governed by the
ordinary rules of procedure applicable thereto and an appeal could lie if
authorised by such rules notwithstanding that the legal right claimed arises
under a special statute which did not in turn confer a right of appeal.

   7. Under the Hindu Marriage Act, the Statute does give a right of appeal, but
it does not prescribe the forum to which such appeals would lie. A question
would also arise whether there would be only one appeal, or there would be a
right of further appeal from a decree or order of the appellate court. These
questions would, in my opinion, be governed by the principle of the cases
referred to above; that is the procedure of the court, to which that
jurisdiction under the Act is given, would apply in regard to the appeals.

   It follows that both under the provisions of Section 28 of the Act, as well
as the general principles of law an appeal would lie against a decree in a
matrimonial cause to that court, to which appeals generally lie from a decree or
order of the Court to which jurisdiction is granted. Section 13 of the Madras
Civil Courts Act states:

     "Regular or special appeals shall when such appeals are allowed by law lie
from the decrees and orders of the District Court to the High Court, Appeals
from the decrees and orders of Subordinate Judges and District Munsifs shall
when such appeals are allowed by law, lie to the District Court, except when the
amount or value of the subject matter of the suit exceeds Rs. 10,000, in which
case the appeals shall lie to the High Court."

   It is unnecessary for the present purpose to refer to the three provisos to
the section. In regard 'o a matrimonial dispute, it cannot be stated that the
subject matter of the dispute exceeds Rs. 10,000. That is a matter which is not
capable of valuation. It would, therefore, appear that if a Subordinate Judge
were given jurisdiction under the Act, an appeal from his decision would under
Section 13 of the Madras Civil Courts Act lie only to the District Judge. As the
decision in the matrimonial disputes under Sections 9, 10, 11, 12 or 13 of the
Hindu Marriage Act should be deemed to be a decree, a further appeal would lie
from the decision of the District Judge on appeal.

   8. It is, however, contended for the appellant in the first two of the above
cases that an appeal from the Subordinate Judge would only lie to the High
Court, and not to the District Court. The argument is that a Subordinate Judge
who obtains jurisdiction by virtue of the notification made by the State
Government under Section 3(b) of the Act should be deemed to be a District Court
for the purpose of exercising the jurisdiction under the Act, and being deemed
to be a District Court it is contended that an appeal from any order or decree
of that court should necessarily lie only to the High Court, and not to any
subordinate authority. I cannot, however, agree with this contention.

   9. Under the Act jurisdiction in regard to the adjudication of matrimonial
disputes is given to a particular class of civil courts. These have been
compendiously described in the Act as a District Court, vide Section 3(b). The
definition of a District Court under Section 3(b) does not mean, that a court
which is notified by the State Government becomes a District Court. What the
section provides is that ordinarily it is the City Civil Court or the District
Court that would have jurisdiction to adjudicate disputes under the Act. But
power is given to the State Government to designate by notification other courts
as well.

   By virtue of the notification other courts will have jurisdiction as such
courts and not as a District Court, and it cannot be held that for the purpose
of the Act, courts other than the District Court would by virtue of the
notification become a District Court. It would, therefore, follow that if by
virtue of the notification under Section 3(b) a court other than the District
Court is given jurisdiction under the Act it is only an extension of
jurisdiction of that court and appeals under Section 28 of the Act would lie
only to that forum to which appeals generally lie from the decree and orders of
that court.

   10. In Venkatarama Iyer v. Srinivasa Sastrigal, 1943-2 Mad LJ 352 : (AIR 1944
Mad 31), a question arose as to what was the proper forum of appeal in regard to
an application under Rules 7 and 9 made under the Madras Agriculturists Relief
Act. Rule 9 simply provided that an order declaring the amount of debt duo under
Rule 7 would be subject to appeal and second appeal as if it were a decree in an
original suit. The learned Judges held that the rule attracted by the procedure
relating to appeals including the provisions governing the appellate
jurisdiction of the courts which were essentially a matter of procedure.

   It, therefore, held that Section 13 of the Madras Civil Courts Act would
apply and the forum of appeal would be determined in accordance with it. In
Prabhakar v. Usha Prabhakar, , a question arose as to the proper forum of an
appeal in a case under the Bombay Hindu Divorce Act of 1947. Originally under
Section 5 of the Act jurisdiction was given only to the District Judge. Later by
an amendment the District Courts were enabled to transfer the matrimonial
disputes to an Assistant or a civil Judge in the District. In that case a suit
under the Act was instituted prior to the amendment. But after the amendment the
matter was transferred to the civil Judge and he passed a decree for divorce.

   The learned Judges held that by virtue of the provisions of Section 5-A the
suit transferred to the court of the Civil Judge should be regarded as a suit
originally instituted in the court for the purpose of exercising powers and
jurisdiction in respect of trial of the suit and that an appeal from that court
would lie only to the District Judge, notwithstanding the fact that the suit was
originally filed in the District Court, and later transferred to the Civil
Judge, An exception, however, was made to this rule in regard to a suit which
was instituted before the coming into force of the amended section giving
jurisdiction to the civil judge. In such a case it was held that the appeal
would lie directly to the High Court. I am of opinion that the principle of the
decision in that case would apply to the present one.

   11. The notification of the State Government investing jurisdiction in the
Sub-Courts in regard to cases arising under the Hindu Marriage Act was made on
29-1-1957. The decree or order of the Sub-Court in regard to petition instituted
thereafter being given in the exercise of its own jurisdiction. Section 13 of
the Civil Courts Act would apply to the case and an appeal would lie only to the
appropriate District Court. I have already indicated that on such matters there
is no question of valuation.

   So appeals from decrees in respect of petitions instituted in the Sub Court
after 29-1-1957 would lie only to the District Court. The forum will be the same
even if the petition had been instituted in the District Court after that date
and transferred by that court for disposal to the Sub Court.

   12. S. R. No. 37109 would, therefore, be returned to the appellant for being
presented to the proper district court.

   13. S. R. No. 14179 was filed on 17-12-1956 in the District Court and after
the notification, was transferred to the Sub Court for disposal. An appeal is
sought to be filed directly to this Court against the decree of the lower court.
It is now well settled that a right of appeal to a superior Tribunal is a vested
right in a litigant and such a right could not be taken away except by statute
either expressly or by necessary implication taking away such a right. In the
instant case on the date on which the petition was presented to the District
Court, the Sub Court had no jurisdiction. An appeal would, therefore, He to the
High Court in respect of proceedings initiated before the notification. Such a
right of appeal would be a vested one.

   In Colonial Sugar Refining Co. v. Irving, 1905 AC 369, an application was
made to the Privy Council to dismiss an appeal from the judgment of the Supreme
Court of Queensland on the ground that the power of the court to give leave to
appeal had been abrogated by an Act. The action in respect of which the appeal
was brought was commenced prior to the passing of that enactment, though leave
to appeal was given subsequently. Lord Machaghten observed at page 372 ;

     "As regards the general principles applicable to the case there was no
controversy. On the one hand, it was not disputed that if the matter in question
be a matter of procedure only, the petition is well founded. On the other hand,
if it be mere than a matter of procedure, if it touches a right in existence at
the passing of the Act, it was conceded that, in accordance with a long line of
authorities extending from the time of Lord Coke to the present day, the
appellant would be entitled to succeed. The Judiciary Act is not retrospective
by express enactment or by necessary intendment. And therefore the only question
is was the appeal by His Majesty in Council a right vested in the appellants at
the date of the passing of the Act, or was it a mere matter of procedure? It
seems to their Lordships that the question does not admit of doubt. To deprive a
suitor in a pending action of an appeal to a superior tribunal which belonged to
him as of right is a very different thing from regulating procedure."

   The Privy Council, therefore, dismissed the application holding that the
leave was properly granted.

   14. In the instant case the appellant had a right on the date of the
notification by the Government to file an appeal to the High Court. That right
could only be taken away by a provision in the statute. There is no such
provision in the Hindu Marriage Act. The effect of Section 3(b) is only to
empower the State Government to invest certain courts with jurisdiction under
the Act. Such a notification cannot mean that the right of appeal to a
particular court winch inhered in a party prior to its coming into force has
been either expressly or impliedly taken away. Indeed the State Government would
appear to have no such power as the only power given to them under Section 3(b)
is to prescribe a court and not to modify other provisions of the Act. On this
principle S. R. No. 14179 should be held to be properly filed in this court and
the appeal will be numbered.

   15. S. R. No. 26783 : In this case the petition was filed before the
notification was made by the Government on 29-1-1957. The petitioner would,
therefore, have a right of appeal to the High Court on the date when the
application was filed. During the pendency of the petition in the District
Court, the State Government made the, notification referred to already and as a
result thereof the District Judge transferred the petition to the Sub Court. The
Subordinate Judge dismissed the application. On the principles set out above an
appeal would lie from the decision of the Subordinate Judge only to this court.

   The petitioner filed an appeal in a court which had no jurisdiction and that
court purporting to act under an appellate jurisdiction set aside the order of
the Sub Court. The respondent to the application has filed the appeal as the
lower appellate court had no jurisdiction. The proper way o correcting that
error is by second appeal to this court. The District Judge purported to act as
appellate court and the question whether he had jurisdiction so to act is a
matter in respect of which a second appeal would lie. It, therefore, follows
that S. R. 27783 has been properly filed as a C.M.S.A It would be admitted and
numbered.

This judgement of the Allahabhad Court will also answer the point

    Smt. Shalu Sharma vs Ajay Sharma on 4/10/2002

ORDER

   1. Heard Sri M.K. Gupta counsel for the petitioner.

   2. By his writ petition the petitioner has prayed for quashing of the order
dated 27-8-2002 passed by the XIII Additional District Judge, Ghaziabad in Civil
Appeal No. 45 of 2002 by which the application of the petitioner 13-C
challenging the jurisdiction of the appellate Court has been rejected.

   3. Facts giving rise to this writ petition, briefly stated, are:

     The petitioner filed a petition for divorce in the Court of the Civil Judge
(Senior Division), Ghaziabad which are registered marriage petition No. 679 of
2000. In paragraph 11 of the plaint it was mentioned that the suit is
tentatively valued at Rs. 1,00,000/-and Court-fees of Rs. 37.50 for divorce and
Rs. 37.50 for return of articles have been separately paid. The 3rd Additional
Civil Judge (Senior Division) vide its judgment dated 31-1-2002 granted decree
of divorce and also directed for return of articles as mentioned in the plaint.
Against the judgment and decree dated 31-1-2002 passed by the 3rd Additional
Civil Judge (Senior Division), Ghaziabad a Civil Appeal No. 45 of 2002 was filed
by the defendant-respondent in the Court of the District Judge, Ghaziabad. In
the aforesaid appeal an application 13-C was filed by the petitioner who was
respondent in the appeal stating that the District Judge has no jurisdiction to
entertain the appeal. XIII Additional District Judge heard the counsel for the
parties and rejected the application of the petitioner 13-C vide its order dated
27-8-2002. Petitioner by this writ petition has challenged the order dated
27-8-2002. Sri M. K. Gupta counsel for the petitioner raised the following
submission in support of the writ petition:--

     1. A petition under Section 13 of the Hindu Marriage Act for divorce is not
capable of giving any pecuniary valuation hence appeal against the judgment and
decree of 3rd Additional Civil Judge (Senior Division) will lie to the High
Court since it is the High Court which has residuary power or hearing the
appeal. Reliance has been placed on a Full Bench Judgment of this Court in 1961
All LJ 232 : (AIR 1961 All 395), Paras Ram v. Janki Bai alias Savitri.

     2. The valuation of suit given by the petitioner in Marriage Petition No.
679 of 2000 of amount of Rs. 1,00,000/- was irrelevant and the said valuation
cannot be determinative of the forum of appeal and such a valuation is to be
ignored as a petition under Section 13 of Hindu Marriage Act is incapable of
valuation in the existing law.

   4. I have heard counsel for the petitioner and perused the record. The only
question raised in the writ petition is as to whether the appeal against the
judgment and decree of the 3rd Additional Civil Judge (Senior Division) dated
31-1-2002 will lie to the District Judge or to the High Court?

   5. For considering the question raised in the writ petition it is necessary
to have a look over the statutory provision governing the right of appeal under
the Hindu Marriage Act, 1955. Section 28 of the Hindu Marriage Act, 1955 relates
to appeal from decrees and orders. Section 28 of the Act is extracted below:--

     "28. Appeal from decrees and orders,--

     (1) All decrees made by the Court in any proceeding under this Act shall,
subject to the provisions of Sub-section (3), be appealable as decrees of the
Court made in the exercise of its original civil jurisdiction, and every such
appeal shall lie to the Court to which appeals ordinarily lie from the decisions
of the Court given in the exercise of its original civil jurisdiction.

     (2) Orders made by the Court in any proceeding under this Act under Section
25 or Section 26 shall, subject to the provisions of Sub-section (3), be
appealable, if they are not Interim orders, and every such appeal shall lie to
the Court to which appeals ordinarily lie from the decisions of the Court given
in exercise of its original civil jurisdiction,

     (3) There shall be no appeal under this section on the subject of costs
only.

     (4) Every appeal under this section shall be preferred within a period of
thirty days from the date of the decree or order."

   6. The words governing the forum of the appeal are contained in Section
28(1), which are "such appeal shall lie to the Court to which appeals ordinarily
lie from the decisions of the Court given in the exercise of its original civil
Jurisdiction. Thus for finding out as to in which Court the appeal shall He, it
has to be looked into, to which Court appeal ordinarily lies from the decision
of the Court given in the exercise of its original civil jurisdiction. Section
3(b) defines "District Court" in following manner:--

     "3(b). "District Court" means, in any area for which there is a city Civil
Court, that Court, and in any other area the principal Civil Court of original
jurisdiction, and includes any other Civil Court which may be specified by the
State Government, by notification in the Official Gazette, as having
jurisdiction in respect of the matters dealt with in this Act."

   7. There is no dispute that the Court of Civil Judge has been notified by the
State Government as District Court having jurisdiction in the matters dealt with
in this Act. Admittedly in the present case petition for divorce was filed
before the Court of Civil Judge. The classes of the Court and the forum for
filing appeal against the judgment and decree from the original civil
jurisdiction are governed by the Bengal, Agra and Assam Civil Court Act, 1887.
Section 3 of the aforesaid Act, provided classes of Civil Court, Section 3 of
the said Act is quoted below:--

     "3. Class of Courts, ........... .There shall be following classes of Civil
Courts under this Act, namely;

     1. The Court of the District Judge;

     2. The Court of the Additional Judge;

     3. The Court of the Subordinate Judge; and

     4. The Court of the Munsif.

   8. In its application to the State of Uttar Pradesh, in item (3) of Section 3
the word "Subordinate" has been substituted by the word "Civil Court". Thus in
the State of Uttar Pradesh the third category of Court is a Court of Civil
Judge. Section 21 of the Act provides for appeal from subordinate Judge and
Munsif. Section 21 of the Act is quoted below;--

     "21. Appeals from Subordinate Judges and Munsifs.--(1) Save as aforesaid,
an appeal from a decree or order of a Subordinate Judge shall be-

     (a) to the District Judge where the value of the original suit in which or
in any proceeding arising out of which the decree or order was made did not
exceed five thousand rupees; and

     (b) to the High Court in any other case;

     (2) Save as aforesaid an appeal from a decree or order of a Munsif shall
lie to the District Judge.

     (3) Where the function of receiving any appeals which lie to the District
Judge under Sub-section (1) or Sub-section (2) has been assigned to an
Additional Judge, the appeals may be preferred to the Additional Judge.

     (4) The High Court may, with the previous sanction of the State Government
direct, by notification in the Official Gazette, that appeals lying to the
District Judge under Sub-section (2) from all or any of the decrees or orders of
any Munsif shall be preferred to the Court of such subordinate Judge as may be
mentioned in the notification, and the appeals shall thereupon be preferred
accordingly.

   9. With regard to State of Uttar Pradesh by U.P. Amendment the pecuniary
limit mentioned in Section 21(1)(a) has been raised as Rs. 5,00,000/-. The
aforesaid provision of Section 21 clearly spells out that if the value of the
original suit does not exceed Rs. 5,00,000/- the appeal wilt lie to the District
Judge and in any other case it will He to the High Court.

   10. The next question to be considered is as to how the petitions under the
Hindu Marriage Act, 1955 are to be valued. Rules have been framed under the
Hindu Marriage Act, 1955 in exercise of powers under Sections 14 and 21 by the
High Court of Judicature at Allahabad. Rule 5 of the Hindu Marriage and Divorce
Rules, 1956 provides for contents of petition. The relevant portion of Rule 5 of
the said Rules is quoted below:--

     "5. Contents of petition

     In addition to the particulars required to be given under Order VII, Rule 1
of the Code and Section 20(1) of the Act, every petition for judicial
separation, nullity of marriage and divorce shall contain the following
particulars:--

     (a) the place and date of marriage;

     (b) .............,.........."

   11. Rule 7 provides that statement contained In civil petition shall be
verified by the petitioner or some other competent person in the manner required
by the Court for verification of the plaint. Order VII, Rule 1 of the Code of
Civil Procedure to which reference has been made under Rule 5 provides for
particulars which have to be contained in the plaint. Order 7, Rule 1 of the
Code of Civil Procedure is extracted below.-

     1. Particulars to be contained in plaint, The plaint shall contain the
following particulars:--

     (a) the name of the Court in which the suit is brought;

     (b) the name, description and place of residence of the plaintiff;

     (c) the name, description and place of residence of the defendant, so far
as they can be ascertained;

     (d) where the plaintiff or the defendant is a minor or a person of unsound
mind, a statement to that effect;

     (e) the facts constituting the cause of action and when it arose;

     (f) the facts showing that the Court has jurisdiction;

     (g) the relief which the plaintiff claims;

     (h) where the plaintiff has allowed a set-off or relinquished a portion of
the claim, the amount so allowed or relinquished; and

     (i) a statement of the value of the subject-matter of the suit for the
purposes of jurisdiction and of Court-fees, so far as the case admits."

   12. Section 21 of the Hindu Marriage Act, 1955 provides that all the
proceedings under this Act shall be regulated, as far as may be, by the Code of
Civil Procedure. Section 20(2) of the Hindu Marriage Act further provides that
the statements contained in every petition under this Act shall be verified by
the petitioner or some other competent person in the manner required by law for
the verification of plaints, and may, at the hearing, be referred to as
evidence.

   13. From the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887
It appears that the forum of appeal depends on pecuniary jurisdiction. Thus the
valuation of the suit determines the jurisdiction of the Court and the forum for
filing the appeal. The valuation of the suit is governed by the Suits Valuation
Act; 1887. Sections 8 and 9 of the Suits Valuation Act are relevant for the
purpose. Section 8 provides that where in suits other than those referred to in
Section 4, Court-fees are payable ad valorem under the Court-fees Act, 1870 as
in force for the time being in the Uttar Pradesh, the value as determinable for
the computation of the Court-fees and the value for purposes of jurisdiction
shall be the same. With regard to petition under the Hindu Marriage Act Article
21 of the Court-fees Act. 1870 as applicable in U. P. provides:--
__________________________________________________________________

   21-A Application, petition or Memorandum under the Special Marriage Act,
1954. or the Hindu Marriage Act, 1955 Third-seven rupees and fifty naya paise.

     __________________________________________________________________

   14. Thus there is fixed Court-fees with regard to a petition under the Hindu
Marriage Act, 1955 i.e. Rs. 37.50. Section 8 of the Suits Valuation Act is not
applicable. Thus the valuation with regard to petitions under the Hindu Marriage
Act is governed by Section 9 of the Suits Valuation Act which provides.-

     "9. Determination of value of certain suits by High Court, ...... When the
subject-matter of suits of any class other than suits mentioned in Section 4 or
8 is such that in the opinion of the High Court it does not admit of being
satisfactorily valued, the High Court may, with the previous sanction of the
State Government, direct that suits of that class shall, for the purposes of the
Court-fees Act, 1870, and of this Act and any other enactment for the time being
in force, be treated as if their subject-matter were of such value as the High
Court thinks fit to specify in this behalf."

   15. It has been submitted by the counsel for the petitioner that no Rules
have been framed by the High Court under Section 9 hence there are no rules
governing the question of valuation. The counsel for the petitioner elaborating
his submission stated that the petitions under the Hindu Marriage Act including
the petition for divorce are not capable of pecuniary valuation nor there are
any rules laying down any criteria for valuation hence the valuation given in
the petition under the Hindu Marriage Act is irrelevant and has to be ignored.

   16. The question with regard to valuation of suits incapable of being given
any pecuniary valuation has been engaging attention of this Court as well as
other High Courts in several cases.

   17. The words "valuation of suits' both occur in Sections 19 and 21 of the
Bengal, Agra and Assam Civil Courts Act, 1887. Full Bench of our Court in (1906)
ILR 28 All 545 (All), Zair Husain Khan v. Khursheed Jan, considered the
provisions of the Suits Valuation Act and the Bengal, Agra and Assam Civil
Courts Act, 1887 in a case pertaining to suit for restitution of conjugal
rights. The Full Bench in the aforesaid case held:--

     "In my opinion the word "valued in Section 19 of Act No. XII of 1887 is
capable of bearing the interpretation which has been hitherto put upon It,
namely, the valuation put by the plaintiff on the relief sought by him."

   18. The Full Bench considering the suit for restitution of conjugal rights
observed:--

     "It was argued before the learned Judges that a suit for restitution of
conjugal rights was incapable of being valued, and this contention found favour
with them. In the case before us the suit has been valued, and therefore, I
think that it is scarcely correct to say that such a suit is incapable of being
valued. It appears to me that it would be more accurate to characterize a suit
of this nature as one, the subject-matter of which does not admit of being
satisfactorily valued. The Legislature (vide Section 9 of the Suits Valuation
Act, 1887) has recognised the existence of classes of suits the subject-matter
of which does not admit of being satisfactorily valued, and has given power to
the High Court, with the previous sanction of the local Government, to direct
that such suits shall "be treated as if their subject-matter were of such value
as the High Court thinks fit to specify in this behalf. There are numerous
classes of suits other than suits for restitution of conjugal rights which do
not admit of being satisfactorily valued. For example, suits to set aside an
adoption and suits to obtain a declaratory decree where no consequential relief
is claimed. This High Court has not as yet exercised the power given to it by
Section 9 of the Suits Valuation Act. Until this is done I see no reason why the
existing practice, by which a plaintiff is allowed to put his own valuation on
such a suit, subject to the power of the Court to refuse to accept the valuation
If in its opinion it is not bona fide, should not be adhered to. After careful
study of the language of the Bengal Civil Courts Act, I am of opinion that the
legislature took it for granted that a money value of some kind, it may be an
arbitrary value, can be placed on all suits. I think this view is supported by
the language of Section 21 of the Act, which provides that an appeal from a
decree or order of a subordinate Judge shall lie to the District Judge where the
value of the original suit did not exceed five thousand rupees and to the High
Court in any other case."

   19. Following the Full Bench judgment of our Court in Zair Husain Khan's case
(1906 ILR 22 All 545) (supra), the Division Bench of Gujarat High Court in AIR
1973 Guj 165, Chhagan Karsan v. Bhagwanji Punja, has also laid down that where
the suit is of such nature that its subject-matter may not be capable of being
satisfactorily valued in terms of money, the plaintiff Is at liberty to put its
own value of plaint and such valuation may ordinarily be accepted by the Court
as a correct valuation of the subject-matter for the purposes of jurisdiction
unless the Court comes to the conclusion that a wrong valuation has been put by
the plaintiff out of Improper motive in which case the Court has to decide what
to be considered the proper valuation. It was held in paragraph 6 by the
Division Bench:--

     "6. The answer is fairly clear. The third paragraph of Section 24 and
Section 28 postulate that all suits and proceedings of a civil nature are
divisible only into two classes. One class of those where the subject-matter
does not exceed in amount or value of ten thousand rupees and the other of those
where the subject-matter exceeds in amount or value of ten thousand rupees. The
former class is dealt with in the third paragraph of Section 24 while the latter
in Section 25. There is no third class of suits or proceedings contemplated by
the legislature where the subject-matter may be incapable of monetary evaluation
so that it is not possible to say whether the value of the subject-matter
exceeds or does not exceed ten thousand rupees. The reason is that in every suit
or proceeding of a civil nature the subject-matter has to be valued in terms of
money for the purpose of jurisdiction. It may be that under the Bombay Court-
fees Act, 1959 where the subject-matter of a suit or proceeding is not
susceptible of monetary evaluation, the legislature may have provided a fixed
Court-fee, but so far as valuation for the purpose of jurisdiction is concerned,
there has to be a valuation of the subject-matter. The Suits Valuation Act, 1887
lays down the principles for valuation of the subject-matter of a suit for the
purpose of jurisdiction. But there may be suits where the subject-matter may not
be capable of being satisfactorily valued in terms of money and no rules having
been made by the High Court under Section 9 no guidance may be furnished by the
Suits Valuation Act, 1887, as to how the subject-matter of such a suit should be
valued. Can the Court throw up its hands in such cases and say that the subject-
matter shall have no valuation? The answer is clearly no. It is now well settled
that in such cases the plaintiff may put his own valuation on the subject-matter
and such valuation would be accepted by the Court as prima facie true unless the
Court is satisfied that it is defective on account of some improper motive in
which case the Court would always consider what should be regarded to be the
proper value. This was laid down as far back as the beginning of the present
century by the Allahabad High Court in Zair Husain Khan v. Khursheed Jan, (1906)
ILR 28 All 545 and by the Calcutta High Court in Jan Mohamed v. Mahar Bibi,
(1907) ILR 34 Cal

     352. The same view was also taken by a Division Bench of the Bombay High
Court in the early case of Jasodav. Chhotu, (1909) 11 Bom LR 1352."

   20. From the aforesaid provisions as noted above, it is clear that a person
filing a petition under the Hindu Marriage Act, 1955 is also required to mention
valuation of the case for purposes of Jurisdiction. It is true that the
petitions as contemplated under the Hindu Marriage Act are not capable of
determination of pecuniary valuation but that does not in any manner estopped a
petitioner to mention the value as thought proper by him. The plaintiff or
applicant who is filling a petition is free to give valuation for purposes of
jurisdiction and if the valuation has been given by a person the same cannot be
said to be irrelevant or immaterial. The submission of the counsel for the
petitioner that the pecuniary valuation mentioned regarding a divorce suit is
irrelevant and cannot be taken into consideration for determining the appellate
forum, cannot be accepted. According to the provisions of Section 21 of the Act
No. 12 of 1887 the appellate jurisdiction is dependent on valuation of suit.
Counsel for the petitioner raised apprehension that if valuation is to be given
at the instance of the plaintiff then with regard to identical dispute parties
may choose to give different valuation so as to choose different forum of
appeal. Elaborating his submission, the counsel for the petitioner has stated an
instance that a case in which a petition is filed by husband under Section 13 of
the Hindu Marriage Act valuing the petition at Rs. 6,00,000/- and the wife filed
a petition under Section 10 of the Act for restitution of conjugal rights and
for return of articles valuing at Rs. 50,000/- and both the cases were decided
by a common judgment by a District Court, the forum of appeal being dependent on
the valuation will be different in both the cases. He contended that the above
cannot be the intention of the legislature. It is to be noted that although the
valuation of suit is one which plaintiff chooses to put upon it but this is
subject to power of the Court to accept the valuation, if it is in its opinion
bona fide as observed by the Division Bench of Gujarat High Court in Chhagan
Karsan v. Bhagwanji Punja case, AIR 1973 Guj 165 (supra). The valuation given by
the plaintiff for the purposes of jurisdiction is to be ordinarily accepted
unless the Court comes to conclusion that wrong valuation has been put by the
plaintiff out of improper motive in which case the Court should decide what
should be considered to be the proper valuation. The apprehension raised by the
counsel for the petitioner is thus unfounded. The Court has ample power to
correct the valuation. All these questions pertaining to valuation can very well
be raised before the Court concerned and be decided in accordance with law. Thus
merely because the cases arising out of matrimonial matter are not capable of
being given pecuniary valuation, it cannot be said that the valuation need not
be given or the valuation given in any such petition is irrelevant. The mention
of valuation is necessary ingredient which is required to be given in the
petition under Section 13 of the Hindu Marriage Act read with Rule 5 of the
Hindu Marriage and Divorce Rules, 1956 and the Order VII, Rule 1 of the Code of
Civil Procedure.

   21. Such reliance has been placed by the counsel for the petitioner on Full
Bench Judgment of this Court in 1961 All LJ 232 : (AIR 1961 All 395); Paras Ram
v. Janki Bai alias Savitri. In the case before the Full Bench a petition under
Section 10 of the Hindu Marriage Act was filed by the husband against the wife
in the Court of the District Judge who transferred it for disposal to the 1st
Civil Judge. No valuation was given on the petition at all. The order was passed
by the Civil Judge that further proceedings on the petition of the husband shall
remain stayed so long as he did not pay the wife the sum of Rs. 250/- for her
cost of defending the proceedings. The husband filed an appeal to the High Court
against the said order. Appeal was valued at Rs. 250/-. In the appeal before the
High Court the question was raised as to whether the appeal will He to the High
Court or to the District Court. The Full Bench took the view that since
residuary power to entertain the appeal vests in the High Court the appeal will
lie to High Court, the Full Bench ultimately held:--

     "In the result I hold that an appeal from an order passed under Section 24
of the Hindu Marriage Act, 1955 by a Civil Judge, who is a District Court within
the meaning of the Act, in a proceeding commenced on a petition under Section 10
of the Act which (petition) does not mention any value on the face of it, lies
to the High Court."

   22. Immediately after the Full Bench Judgment again the question arose before
the Division Bench in 1964 All LJ 186 : (AIR 1965 All 46), Major Dal Chand Singh
Pratap v. Mrs. Swarn Pratap. Before the Division Bench case wife filed petition
under Section 10 of the Hindu Marriage Act. The petition under Section 10 has
been valued at Rs. 1,000/-. Single Judge referred the following question for
consideration of the Division Bench:--

     "Whether in a petition under the Hindu Marriage Act valued at less then Rs.
1000/-an appeal lies to the High Court or not?"

   23. The Division Bench (which consisted of Hon'ble M. C. Desai, J. who gave
judgment in Paras Ram's case (AIR 1961 All 395) (supra) Full Bench) while
deciding the aforesaid case took the view that since in the case in question
valuation of Rs. 1000/- was given hence the appeal would lie before the Court of
District Judge. The Division Bench considered provisions of Code of Civil
Procedure, provisions of Suits Valuation Act and the Bengal, Agra and Assam
Civil Courts Act, 1887 as well as the rules framed under the Hindu Marriage Act.
The Division Bench held at page 189.-

     "The opening words of Rule 5 are relevant for our purposes. They are:--

     5. Contents of petitions. In addition to the particulars required to be
given under Order VII, Rule 1 of the Code and Section 20(1) of the Act every
petition for judicial separation nullity of marriage and divorce shall contain
the following particulars....."

     This rule clearly makes the provisions of Order VII, Rule 1, C.P.C.
applicable to the petitions described in that rule. From this also it is clear
that Order 7, Rule 1, C.P.C. applies to a petition made under Section 10 of the
Act. Section 28 of the Act, which we have already reproduced earlier, clearly
provides that "all decrees and orders made. ..... under this Act shall be
enforced in a like manner as the decrees and orders of the Court made in the
exercise of its original civil jurisdiction are enforced."

     This would also show that a proceeding under Section 10 or other sections
of the Act is in the nature of a regular suit, with the result that the
provisions of Order 7, Rule 1, C.P.C. would be applicable on this ground also.
Clause (1) of Order 7, Rule 1, C.P.C. requires "statement of the value of the
subject-matter for purposes of jurisdiction and Court-fees so far as the case
admits" to be given. Consequently, it is clear that the valuation of the
subject-matter has to be given in every petition under the Act. It is contended
that the subject-matter of a petition for judicial separation is incapable of
being valued in terms of money. That does not, however, mean that no valuation
can be fixed in such cases or in cases of restitution of conjugal rights.
Actually in the latter class of cases valuation has always been fixed. Inasmuch
as the Court-fees on a petition under Section 10 of the Act is a fixed one (Rs.
37.50 np), the provision of Section 9 of the Suit Valuation Act would apply.
Rules have been framed for U.P. also under that provision. We need not, however,
go into this question at any length because admittedly in the case before us the
subject-matter has been valued at the figure of Rs. 1,000/-. Consequently, it is
not a case where no valuation has been given. Once the subject-matter has been
valued at a certain figure, that figure would be determinative of the forum of
appeal."

   24. The Division Bench of our Court in Major Dal Chand Singh Pratap v. Mr.
Swarn Pratap's case (AIR 1965 All 46) (supra) was also followed by the Division
Bench of Orissa High Court in AIR 1978 Orissa 163, Nrusingh Charan Nayak v. Smt.
Hemant Kumar Nayak. The Division Bench of Orissa High Court has also noted the
case of Full Bench of our High Court in Paras Ram v. Janki Bai alias Savitri
(AIR 1961 All 395) (supra). The counsel for the petitioner has laid emphasis on
following observations of the Full Bench:--

     "According to the principle applied in all the cases discussed above, when
the subject-matter in appeal is not capable of pecuniary valuation, the appeal
will not He to the District Judge."

   25. The judgment of Full Bench in Paras Ram v. Janki Bai alias Savitri
(supra) is not applicable in the facts of the present case. The present case is
not a case in which no pecuniary valuation has been given in the suit filed by
the petitioner. In the present petition admittedly the valuation of Rs.
1,00,000/- has been mentioned in paragraph 11 of the petition for the purposes
of jurisdiction of the Court. The above mentioned observations were made by the
Full Bench in the facts of that case in which there was no valuation given in
the petition. The submission of counsel for the petitioner that the petition
under Section 13 and other petitions under the Hindu Marriage Act are not
capable of giving any pecuniary valuation hence appeal will not lie to district
Court is, too, wide to be accepted. If the above submission is accepted that the
cases under the Hindu Marriage Act since are incapable of being given pecuniary
valuation all cases in which where valuation is given or not, the appeal will
lie only to the High Court there will be no case in which appeal will lie to
District Judge, which interpretation is contrary to express provision of Appeal
given under Section 21 of the Act XII of 1887 and also there can be no second
appeal. This interpretation is also not in consonance with intendment of Section
28 of Hindu Marriage Act, 1955, cannot be accepted. The Full Bench in Paras Ram
v. Janki Bai Savitri's case (supra) was distinguished in the Division Bench's
case in Major Dal Chand Singh Pratap v. Mrs. Swaran Pratap's case (supra) and
the facts of the present case are similar to the aforesaid Division Bench
Judgment in which also like present case valuation was given. Thus the Full
Bench authority cited by the petitioner is clearly distinguishable.

   26. Another D.B. of this Court reported in 1981 All WC 135 : (AIR 1981 All
230), Chandra Swaroop Singh v. Smt. Manorama Sinha considered the controversy.
In the aforesaid Division Bench petition was filed for divorce which was valued
at Rs. 1000/-. The Division Bench laid down in paragraphs 13, 14 and 15 as under
:--

     " 13. Another question that arises for consideration in this matter is as
to whether an appeal shall lie to the District Judge or to the High Court in the
instant case. The contention of the learned counsel for the appellant was that
under the provisions of the Act there is only one District Court and an appeal
would lie to the District Judge from the decree passed by another Court which
also is a "District Court" within the meaning of the Act. Precisely the same
question had arisen in Major Dal Chandra Singh Pratap v. Swaran Pratap, AIR 1965
All 46, where a Division Bench of this Court held that there is a vital
distinction between the District Judge and the 'District Court'. The District
Court as provided in Bengal. Agra & Assam Civil Courts Act provides several
categories of Courts which are collectively called civil Courts which include
the Court of District Judge, Civil Judge and the Munsiff. The words which are
used in the Act are the 'District Court and the same have been defined as a
Court of original civil Jurisdiction or any other Court. The Court of original
civil jurisdiction of course is a Court of the District Judge but if any other
Court was also Invested with the powers under the Act then the same powers can
be exercised by a Civil Judge also. There is thus no conflict in the provisions
if the decree passed by the Civil Judge exercising jurisdiction as 'District
Court' under the Act is appealed against before the District Judge who can
decide the matter as an appellate Court.

     14. The above decision clearly covers the point sought to be raised in this
appeal and we need not dilate on this issue any further. Suffice it to say that
the petition for divorce had been valued at Rs. 1,000/- in the trial court and
as such the appeal would He only to the District Judge and not to the High
Court. Appeal from the decree of the Civil Judge can lie to the High Court only
if the valuation of the Original Suit was more than Rs. 20,000/-. The appellant
himself had chosen to give valuation of the petition which he was required to
give under Rule 5 of the Rules framed by this Court under the Act. The
jurisdiction of the Court will, therefore, be determined on that basis alone. In
this case since the petition was valued at Rs. 1,000/- obviously the appeal
would lie before the District Judge and not to the High Court.

     15. In view of the above, we answer the reference accordingly and direct
that F.A. No. 80 of 1978 filed in this Court is not competent and the appeal
could be only before the District Judge, Varanasi. The memorandum of appeal
shall be returned for presentation to the proper Court."

   27. Another Full Bench of this Court had occasion to consider Section 28 of
the Hindu Marriage Act, 1955 with regard to question as to whether a Second
Appeal is maintainable from the appellate decree in proceedings under the Hindu
Marriage Act. The Full Bench has laid down that against a decree of the civil
Court which is valued at Rs. 20,000/- an appeal lies to the District Judge and
thereafter the second appeal to the High Court. The Full Bench in 1984 All LJ
392 Smt. Premlata Sharma v. Bhagwat Prasad Sharma, Dehradun held in paragraphs
21 and 22 :--

     "21. Interpreting Sub-sections (1) and (4) of Section 28 of the Act,
learned counsel appearing for the respondents contended that as the legislature
intended to provide for only one appeal, it provided limitation in respect of
one appeal and not for two. He urged that had the Legislature thought of
providing two appeals against the decree contemplated by Sections 9, 10, 11 and
13, it would have enacted Section 28 differently and had similarly provided for
ninety days limitation for filing appeal to the High Court. We are unable to
accept this submission. Section 28(1) provides that all decrees passed by the
Court in every proceeding under this Act are appealable to the Court to which an
appeal lies from the trial Court in its original civil jurisdiction. As against
a decree of a civil Court which is dealing with a suit below Rs. 20,000/- an
appeal lies to the District Judge and, thereafter second appeal to the High
Court. In case of valuation of a petition below Rs. 20,000/- the application
would lie before a Civil Judge provided that such a Court is notified under
Section 3(b) of the Hindu Marriage Act to be a District Court. Section 3(b) of
the aforesaid Act defines the words district Courts' as follows :--

     (c) "district Court" means, in any area for which there is a city civil
Court, that court and in any other area the principal civil Court of original
jurisdiction, and Includes any other civil Court which may be specified by the
State Government by notification in the Official Gazette, as having jurisdiction
in respect of the matters dealt within this Act."

     22. From a perusal of the definition, it would appear that other courts of
civil jurisdiction could also be invested with the jurisdiction to decide the
cases under Hindu Marriage Act by means of notification by the State Government
in the Official Gazette. In a case, therefore, where a Civil Judge is notified
under Section 3(b) by the State Government to be a District Court, that could
have jurisdiction to entertain the petition and the question of entertainability
of an appeal and, thereafter, second appeal will depend on the valuation of the
subject matter given by the petitioner filing such an application. It is correct
that no rule, perhaps as it was not possible to do so, has been made in
accordance with which a petition could be valued. In the absence of such a rule,
in a petition where valuation was below Rs. 20,000/- an appeal could lie to the
District Judge whereas in another to the High Court. Similar anomalies may be in
existence in other jurisdictional proceedings. That itself will not rule out the
interpretation of Section 28(1) that the right of appeal would be governed in
the same manner as decree of a Civil Court made in exercise of its original
civil jurisdiction. The expression "as" used in Section 28(1) is indicative of
the intention of Parliament that a decree made by the Court in any proceeding
under the Hindu Marriage Act should receive the same treatment with regard to
the appealability as decree made in exercise of its original civil jurisdiction.
This expression means "like to" "of the same kind," "in the same manner," in the
manner in which ."

   28. The view which is being taken in the present case is fully supported by
view taken in the Full Benches of this Court namely Full Bench decision in Zair
Husain Khan (1906 ILR 28 All 545) and Full Bench decision in Prem Layta Sharma
(1984 All LJ 392) (supra).

   29. The counsel for the petitioner has also contended that since the decree
was passed by the 3rd Additional Civil Judge for return of articles amounting to
Rs. 4,88,500/-whlch if added with the valuation of the petition of Rs.
1,00,000/-, District Judge loses the jurisdiction to hear the appeal. The above
submission of the petitioner is misconceived. Petitioned has filed the petition
before the Additional Civil Judge praying for decree of divorce and the
valuation was given In paragraph 11 as Rs. 1,00,000/- when the petitioner
herself gave the valuation in her petition as Rs. 1,00,000/- she cannot be
allowed to say that the valuation is not relevant or the valuation is much more.
It does not appear that at point of time the petitioner raised any objection
regarding valuation of the petitioner before the trial Court. It was open to the
petitioner to raise the objection of valuation. The memo of appeal has also been
filed as Annexure 3 to the writ petition which memo also shows that the
valuation of the appeal is Rs. 1,00,000/-, the appeal, as filed before the
District Judge is thus fully maintainable. Further, the forum of Appeal depends
on the valuation given in suit petition originally.

   30. From the aforesaid discussion the submission raised by the counsel for
the petitioner cannot be accepted. The appeal filed by the respondent before the
District Judge was fully maintainable and the application 13-C filed by the
petitioner has rightly been rejected. No good grounds have been made out to
interfere with the order of the learned Additional District Judge dated
27-8-2002.

   31. The writ petition lacks merit and is dismissed.

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