MAHADEV JYOTI UMRANI Vs. SUMITRA

JUDGEMENT

(1.) THE appellant (husband) and respondent (wife) were respectively the petitioner and respondent in M. C. No. 61 of 1983 on the file of the principal Civil Judge (Senior Division), Chikkodi, filed under Section 13 (l) (i-a) and (i-b) of the Hindu Marriage Act of 1955 seeking a decree for divorce. The relevant portion of the petition relating to Court fee and valuation is extracted below: "fixed Court fee of Rs. 100/- is paid for this petition as per the schedule II, Article I of the Karnataka Court Fees and Suits Valuation Act, 1958, as amended upto date".

(2.) AFTER contest, the said petition was dismissed. Feeling aggrieved, the appellant filed an miscellaneous appeal on 9-10-2000 in the Court of the Principal District Judge, Belgaum. As the office raised an objection in regard to maintainability, the appeal was not numbered. The objection was that having regard to the decision of the Division Bench of this court in Parashuram Rao Anantha Rao Pise v Smt. Pratibha parashuram Rao Pise, the appeal ought to have been filed in the High court. After hearing, the learned Principal District Judge, Belgaum, by an order dated 11-1-2001 held that the appeal was not maintainable before the District Court and directed the return of the appeal papers to the appellant for presentation before the High Court, relying on Section 19 of the Civil Courts Act, 1964. Instead of take return and representing the appeal, the appellant has filed this appeal against the order of the district Judge, under Order 43, Rule l (a) of the Code of Civil Procedure. The appellant contends that having regard to the decision of the Division Bench of this Court in Mallappa v Mallava, and Section 19 of the civil Courts Act, an appeal against the order of the Civil Judge (Senior division), passed under the Hindu Marriage Act, 1955 would lie to the district Court and not to the High Court and the District Court committed an error in ordering return of the appeal. The appellant has also contended that the decision in PISE is no longer good law in view of amendment to Section 28 of the Hindu Marriage Act, 1955 by Act 60 of 1968.

(3.) THE learned Single Judge before whom the appeal came up for hearing, was of the view that Mallappa's case, laid down the correct law. However, as the subsequent decision of Parashuram Rao Anantha Rao pise took a contrary view, the learned Single Judge, by order dated 8-1-2003, referred the matter to the Division Bench to resolve the conflict between Mallappa's case and Parashuram Rao Anantha Rao Pise's case. The question that therefore arises for consideration is whether an appeal from an order/decree of the Civil Judge, Senior Division, in a proceedings under Sections 9, 10, 11, 12 and 13 of the Hindu Marriage act, 1955, lies to the High Court or the District Court.