B BALAJI SINGH Vs. B RAJ KUMARI

JUDGEMENT

(1.) THIS is an appeal filed against the order of the 8th Assistant Judge, City Civil court, Madras, on a petition filed under Sections 13 (1) (i), 25 and 26 of the Hindu marriage Act, 1955. The preliminary objection raised by the learned counsel for the respondent is that the proper authority to entertain the first appeal against the order of the Assistant Judge is the Principal Judge of the City Civil court, Madras and not this court. Section 28 of the Hindu Marriage Act provides that 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 are enforced, any may be appealed from any law for the time being in force. The law for the time being in force, is found in S. 15 of the madras City Civil Court Act which provides that an appeal shall lie to the High court, from any decree or order appealable under the provisions of the Civil procedure Code in any suit or proceeding, where the amount or value of the subject-matter exceeds five thousand rupees or where the decree or order appealed from was passed by the Principal Judge or any Additional Judge. Clause (2) of that section provides that an appeal shall lie to the Principal Judge from any decree or order appealable under the provisions of the Civil Procedure code passed in any suit or proceeding where the amount or value of the subject-matter does not exceed five thousand rupees-- (1) by a Judge other than the principal Judge before the 1st July, 1955 or (2) by an Assistant Judge on or after 1st July, 1955. Clause (3) of Section 13 provides that a second appeal shall lie to the High Court from any decree passed by the Principal Judge or an Additional judge in the exercise of his appellate jurisdiction on all or any of the grounds mentioned in Section 100 of the Civil Procedure Code. In the petition before. the Assistant Judge, the value of the subject-matter has been given by the appellant as Rs. 10. It would, therefore, follow that the appeal against his order would lie under Section 15 of the Madras City Civil Court Act. , only to the Principal Judge of the City Civil Court, against whose judgment a second appeal to the High Court will lie. This is also the view which has been upheld by Ramachandra Iyer, J. as he then was, in Valliammal v. Periasami Udayar, It is true, that though in that case an appeal against the order passed under the Hindu Marriage act by the sub-court was held to lie to the District Court, the question of jurisdiction in the case of an appeal against the order of the Assistant Judge of the city Civil Court did not directly arise for consideration. Learned counsel for the appellant seeks to distinguish that case from the instant case on the ground that there was a Government notification empowering the Sub-Courts in the moffusil to entertain petitions under the Hindu Marriage Act whereas no such notification exists in respect of the Assistant Judges of the Madras City Civil Court. I do not think that this alters the legal position.

(2.) UNDER Section 4 of the Madras City Civil Court Act, the City Civil Court shall consist of the Principal Judge and such number of Additional or Assistant Judges as the State Government may from time to time appoint, and subject to the provisions of Section 15, each of the Judges may exercise all or any of the powers conferred on the court by this Act or any other law for the time being in force. By virtue of this provision, even without a notification by the Government, are Judge of the City Civil Court, whether he be the Principal Judge or the Additional Judge or the Assistant Judge, would be competent to entertain an application under the hindu Marriage Act. But the right of appeal from the order passed by a Judge of the City Civil Court would be governed by Section 15 of the Act. had the petition been 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 as in this case, 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. 5000

(3.) I therefore hold that this appeal has been filed in the wrong forum and has to be returned for presentation to the proper court. The appeal memorandum will be returned to the appellant's counsel between 11 a. m. and 2. p. m. on 20-10-1971 for presentation to the proper court.