AMITBHAI HIRABHAI VADODARIYA Vs. PINALBEN PRAFULBHAI MEHTA

JUDGEMENT

(1.) This appeal under Section 28(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") is directedagainst the judgement and order dated 15th April, 2013 passed by the learned Principal Senior Civil Judge, Amreli in Hindu Marriage Petition No.40 of 2008, whereby the divorce petition filed by the appellant under Section 13(1)(iA) of the Act has been dismissed.

(2.) When the matter was taken up for hearing, Mr. P. J. Kanabar, learned Advocate for the respondent raised a preliminary objection to the effect that the order dismissing the petition for divorce under Section 13(1)(i -a) of the Act has been passed by the learned Principal Senior Civil Judge, Amreli and that an appeal from such an order of the Principal Senior Civil Judge would lie to the District Judge of Amreli, and not to the High Court. Since the contention raised by Mr. Kanabar relates to the question of jurisdiction, the same was heard as a preliminary issue, without going into the merits of the matter.

(3.) Mr. P. J. Kanabar, learned Counsel for the respondent submitted that in the petition for divorce filed by the respondent under Section 13(1)(i -a) of the Act, fixed Court fees of Rs.50/ - had been paid. Referring to the provisions of Section 28 of the Act, it was submitted that the same provides that all decrees made by the Court in any proceeding under the 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 decision of the Court given in the exercise of its original civil jurisdiction. It was submitted that Sub -Section (2) of Section 15 of the Gujarat Civil Courts Act, 2005 lays down that appeals from the decrees and orders passed by a Court of Senior Civil Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie to the Court of the District Judge of the district when the amount or value of the subject matter of the original suit or proceedings is less than five lakhs of rupees or such other sum as the High Court may, from time to time, specify and in other cases to the High Court. Thus, under Sub -Section (2) of Section 15 of the Gujarat Civil Courts Act, appeals from the decrees and orders passed by a Court of Senior Civil Judge in original suits and proceedings of civil nature shall would lie either before the Court of the District Judge of the district or to the High Court, depending on the value of the subject matter. Since Section 28 of the Act provides for appeal to the Court to which appeals ordinarily lie from the decision of the Court given in the exercise of its original civil jurisdiction, on a combined reading of Section 28 of the Act with Section 15 of the Gujarat Civil Courts Act, it is clear that in case where the valuation of the suit is less than five lakhs of rupees, an appeal against the decree and order passed by a Court of Senior Civil Judge would lie before the Court of District Judge and not before the High Court.