RAMJIBHAI LALBHAI PATEL Vs. SHANTABEN

JUDGEMENT

(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.)

(2.) 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.

(3.) A similar issue was raised in First Appeal No. 1158/81 which I decided on 24-1984: (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:-