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Balwinder Singh vs Sinderpal Kaur & Anr on 17 May, 2019

FAO No.2787 of 2017 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
FAO No.2787 of 2017 (OM)
Date of Decision:17.05.2019
*****
Balwinder Singh
. . . . . Appellant
Vs.
Sinderpal Kaur and another
. . . . . Respondents
*****
CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN
HON’BLE MR.JUSTICE ANUPINDER SINGH GREWAL
*****

Present: – Ms.Manmohan Kaur, Advocate,
for the appellant.

Mr.Lakhwinder Singh, Advocate, for
Mr.P.S. Dhaliwal, Advocate,
for the respondents.

*****

RAKESH KUMAR JAIN, J.

This appeal is directed against the judgment and decree of the

Family Court, Barnala dated 2.3.2017 by which suit filed by both the

respondents under Order 33 Rule 1 2 of the Code of Civil Procedure, 1908

[for short ‘the CPC’] in forma pauperis for recovery of maintenance under

the Hindu Adoptions and SectionMaintenance Act, 1956 [for short ‘the Act’], by

creating a charge over the property of the appellant and for permanent

injunction restraining the appellant from alienating the suit property owned

by him in any manner was decreed only qua respondent No.2/plantiff No.2

in the suit as plaintiff No.1/respondent No.1 had withdrawn the suit and the

Family Court, Barnala had directed the recovery of maintenance allowance

at the rate of `5000/- per month from the defendant/appellant by plaintiff

No.2 by creating a charge over the suit property and also restraining him

from alienating the suit property in any manner.

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In brief, respondent No.1 2/plaintiff No.1 2 filed a suit in

forma pauperis under Order 33 Rule 1 2 of the CPC for recovery of

maintenance amount of `10,000/- per month for plaintiff No.1/respondent

No.1 and `5000/- per month for plaintiff No.2/respondent No.2 by creating

charge over the suit property and also for permanent injunction against the

defendant/appellant from alienating the suit property.

Plaintiff No.1 was married to Iqbal Singh (son of the appellant)

on 16.12.2004 as per Sikh rites at Barnala. They were blessed with a female

child (plaintiff No.2), born on 29.1.2007. Unfortunately Iqbal Singh died in

an accident on 15.6.2010. Plaintiff No.1 was allowed to live with plaintiff

No.2 in her matrimonial home by the defendant till 23.3.2011 and thereafter

the defendant sent plaintiff No.1 along with plaintiff No.2 to her parental

home. The defendant did not pay maintenance thereafter w.e.f. 23.3.2011 to

the plaintiffs whereas, the defendant is allegedly the owner in possession of

the suit property and has been earning `4 lakh per annum out of which he

could have easily paid maintenance @ `15,000/- per month as claimed by

the plaintiffs. According to the plaintiffs, the defendant was asked to

maintain them and not to dispossess them from the suit property but he

finally refused on 8.7.2011 forcing the plaintiffs to file the present suit

before the Family Court, Barnala. Plaintiff No.1 withdrew her suit filed as

forma pauperis on 1.4.2013 but plaintiff No.2 sued the defendant in her

capacity as an indigent person after permission was granted by the Family

Court on 13.7.2016. The defendant filed written statement on 29.8.2016 in

which he averred that plaintiff No.1 had solemnized the marriage with

Sukhchain Singh on 9.3.2012 but started litigating with her second husband

and had moved an applications under Section 125 of the Cr.P.C., Section 12

of the Protection of Women from SectionDomestic Violence Act, 2008 [for short

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‘the Act of 2008’] and also under Section 498-A/Section406 of the IPC besides

filing a petition under Section 13 of the Hindu Marriage Act, 1955 [for short

‘the 1955 Act’] which was later on converted into a petition under Section

13B of the 1955 Act. It is further averred that plaintiff No.1/respondent

No.1 had recorded her statement on 27.7.2015 about the receipt of entire

dowry articles including gold ornaments and cash amount of `5 lakh of her

future maintenance from Sukhchain Singh and as such marriage of plaintiff

No.1/respondent No.1 with her second husband Sukhchain Singh was

dissolved on a petition filed under Section 13B of the 1955 Act and the

plaintiff No.1/respondent No.1 had withdrawn all the applications filed

against Sukhchain Singh and defendant has already filed an application

under the Guardians and SectionWards Act, 1890 for seeking the custody of

plaintiff No.2. It is further averred in the reply that after the marriage of

plaintiff No.1 with Sukhchain Singh, plaintiff No.2 became the step daughter

of Sukhchain Singh and has no right in the property of the defendant. On

the aforesaid pleadings as many as four issues were framed by the trial

Court.

Issues No.1 to 3were jointly discussed. It has been held by the

trial Court that plaintiff No.1 had filed her claim in terms of Section 19 of

the Act being a widowed daughter-in-law of the defendant and plaintiff No.

2 in terms of Section 20 of the Act for maintenance of the children. The

Court has ultimately found that plaintiff No.2 being dependent as the

daughter of the predeceased son of the defendant is entitled to be maintained

and as such her suit was decreed for the payment of maintenance @ 5000/-

per month and charge was created over the suit property owned by the

defendant who had been further restrained from alienating the suit property.

However, the decree sheet was ordered to be sent to the Collector, Barnala

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for recovery of the Court Fee as first charge over the suit property of the

defendant under Order 33 Rule 10 of the CPC. Accordingly, decree sheet

was prepared in which the stamp for the plaint was determined to the tune of

`27450/- .

The defendant has filed this appeal by affixing the Court Fee of

`20/-. On 7.12.2017, this Court had passed an order asking the counsel for

the defendant/appellant as to how the appeal is maintainable without affixing

the Court fee when the value for the purposes of Court fee of the decree in

the suit is fixed by the Family Court at `27,450/-.

Learned counsel for the appellant has relied upon a Division

Bench decision of the Rajasthan High Court in the case of “Mamta Vs. Hari

Kishan” 2004(3) RCR (Civil) 838 to contend that the proceedings before the

family Court is not a suit rather the proceedings before the Family Courts are

in the nature of petitions or applications and therefore, ad valorem Court fee

is not payable. He has further relied upon a decision of the Single Judge of

this Court rendered in the case of “Lt. Col. Satish Chaudhary Vs. Kumari

Sneh Lata” 2015(1) PLR 55.

On the other hand, it is further submitted that as per Rule 7 of

the Punjab and Haryana High Court Family Courts Rule, 2005 [for short ‘the

Rules’] all causes for the relief(s) envisaged under the provisions of the Act

shall be by way of petition(s). He has further referred to Rule 25 of the

Rules to contend that the proceedings before the Family Court has to be as

treated as civil proceedings but the provisions of the CPC shall not apply to

such proceedings and it shall be entitled to devise its own procedure in

accordance with the rules of natural justice.

Learned counsel for the appellant has further submitted that in

the case of Mamta (Supra), this Court had held that the proceedings before

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the Family Court are of summary in nature and cannot be termed as a suit

even if it is provided in Section 7 of the Rajasthan High Court Family Courts

Rules, 1994 that all actions instituted before the Family Court shall be by

way of plaint or petition or application or otherwise, as the Court thinks fit.

It is further submitted that it was held therein that the petitions in the Family

Court are in the nature of petitions or application and the Court Fee is

payable under clause 11 (K) of Schedule -II of the Rajasthan Court Fees and

Suit Valuation Act, 1961.

Learned counsel for the appellant has further submitted that in

the case of Lt. Col. Satish Chaudhary (Supra), the Single Bench of this

Court, while dealing with the case of the Family Court at Bhiwani, Haryana

has referred to the decision in the case of Smt. Mamta and Others (Supra)

in extenso and also a decision of the Kerala High Court in the case of

“Saleesh Babu Vs. Deepa”, 1996 (3) RCR (Civil) 588 for holding that

ad volorem Court Fee would not be applicable on a petition filed before a

Family Court.

On the other hand, learned counsel for the respondent has

submitted that since the Court below has determined the stamp for plaint in

the decree to the tune of `27,450/- therefore, the appellant was supposed to

pay ad volorem Court fee.

We have heard learned counsel for the parties on this issue.

Although the respondent had filed a suit under Order 33 Rule 1

and 2 of the CPC but the said suit was filed for the recovery of maintenance

which was maintainable before the Family Court in terms of Section 7 of the

Family Courts Act, 1984 which deals with the jurisdiction of the Family

Court to try a suit or proceedings for maintenance in terms of Section 7 (f) of

the SectionFamily Courts Act. Once the said proceedings for maintenance has been

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filed in terms of Rule 7 of the Rules, it would be a petition as it is provided

therein that a petition has to be filed in respect of all types of causes for the

purpose of seeking the relief as envisaged under the provisions of the Act i.e.

the SectionFamily Courts Act, 1984.

In para No.11 of the case of Lt. Col. Satish Chaudhary

(Supra), this Court, while dealing with the cases of Smt. Mamta and others

(Supra) and Saleesh Babu (Supra) held that “the question of court-fee

payable on a petition for maintenance in the context of HAMA and of help in

this case has been considered by a Division Bench of the Rajasthan High

Court in SectionSmt. Mamta And Others V. Hari Kishan, AIR 2004 Rajasthan 47

in the context of the Rajasthan High Court Family Courts Rules, 1994 and

the Rajasthan Court Fees and SectionSuits Valuation Act, 1961. The facts of the

case were that the wife and children of the respondent moved an application

under Sections 18 and 20 of the HAMA claiming maintenance in the sum of

`25,000/- per month. The husband filed an application under Order 7 Rule

11 CPC for rejection of the application for non-payment of Court-fee

payable on valuation of the petition i.e. `3 lacs. On the moot controversy, a

preliminary issue was framed whether the application filed by the wife is

liable to be dismissed for non-payment of court-fees. The Judge, Family

Court, decided the issue against the wife who appealed to the High Court. It

was contended before the Court that the proceedings for maintenance before

the Family Court are summary in nature and as such an application cannot

be termed as a ‘suit’. Consequently, the provision of Section 22 of the

Rajasthan Court Fees and Suit Valuation Act, 1961 is not a relevant factor

and on such an application ad valorem Court fee is not payable on the

amount claimed payable for one year. The Court was called upon to deal

with Schedule II of the Rajasthan Act, 1961 where Sub-Clause (k) of Clause

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11 of the Schedule II of the Act provides for fixed fees. Clause 11 identifies

original petitions not otherwise provided for when filed in; (1) a Court

subordinate to the High Court and (2) the High Court, and the fee

prescribed therefor is `2/- and `10/- respectively. The Court reasoned that

the Family Courts are empowered to make an attempt to simplify the rules

and procedure so as to enable the Family Court to deal effectively with the

disputes before it. One of its objectives is to bring succour to women and

children who have been abandoned by their husbands/fathers and others.

Rule 7 speaks of initiation of proceedings before the Family Court by way of

plaint or petition or application or otherwise as the Court thinks fit. The

Court opined that the framers of the rule have casually incorporated all

sorts of alternatives, i.e., plaint or petition or application. In case, the action

instituted before the Family Court is taken as a plaint and tried as a suit, the

Court took the view that the entire purpose of setting up Family Courts will

be frustrated. With a view to deal with actions in matrimonial disputes more

quickly and effectively which are different from the procedure adopted in

ordinary civil proceedings, the action will have to be taken as instituted on

an application. Any other interpretation asking to affix ad valorem court-

fees will operate harshly and would tend to price justice out of reach of

many litigants in distress thereby destroying the very object of setting up of

the Family Courts. When a woman and the children ask for maintenance,

they can institute proceedings by way of an application. Section 7 of the

FCA directs that the Family Court shall be for the purpose of exercising the

jurisdiction under the Act to be the District Court or any other subordinate

Civil Court for the area, to which the jurisdiction of the Family Court

extends. Thus, Section 7(1)(f)of the Act takes within its purview a suit or

proceeding between the parties to a marriage with respect to the property of

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the parties or any of them and apply it for survival ends. Since the

proceedings before the Family Court is commenced by way of a petition or

an application, it is obvious that such an application would be governed by

Schedule II of the Rajasthan Court Fees and Suit Valuation Act, 1961. The

Court further reasoned in paragraph 15 of the judgment that a bare look at

Section 22 of the Rajasthan Act shows that the said provision is applicable

to suits and not applications or proceedings. Therefore, actions instituted

under Sections 18 and Section20 are proceedings within the meaning of Section 7

(f) and not a suit. Therefore, Section 22 has no application. To reach this

conclusion, the Court drew strength from the Division Bench judgment of

the Kerala High Court in Saleesh Babu v. Deepa; (1996) 2 HLR 441. It is

well established law that in case of fiscal Statutes the provisions must be

strictly interpreted giving every benefit of doubt to the subject and lightening

as far as possible, the burden of court-fees on a litigant. Where an

adjudication falls within two provisions of the SectionCourt-fees Act one of which is

onerous for the litigant and other more liberal, the Court would apply that

provision which is beneficial to the litigant. For this proposition of law the

Court placed reliance on Supreme Court decisions reported in AIR 1957 SC

657 and AIR 1976 SC 1503. Accordingly, the Court held that all the

petitions in the Family Courts are in the nature of petitions or applications

and the court fees is payable under the residuary Clause 11(k) of the

Schedule-II of the Rajasthan Court Fees and Suit Valuation Act, 1961″.

It is further observed in the said decision that “in the absence of

a clear provision governing court-fees payable and going by the ratio by the

decision of the Rajasthan High Court, it appears to be fair and reasonable

to hold that the applicant was not called upon to affix ad-valorem court-fees

on her application and was liable to affix only a fixed court fees and when

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paid would suffice to maintain the suit or application before the Family

Court”.

We agree with the view taken by the learned Single Judge in the

case of Lt. Col. Satish Chaudhary (supra), and thus it is held that if a

petition is filed before the Family Court for the purpose of maintenance then

in terms of Section 7 of the Act ad volorem Court fee is not liable to be paid

because the proceedings initiated are in the nature of the petition and not the

suit.

Learned counsel for the appellant has then submitted that if ad

volorem Court fee is not liable to be paid then the Court fee which is ordered

to be recovered in terms of the Order 33 Rules 10 of the CPC is patently

erroneous and illegal. In this regard we are referring to Order 33 Rule 10 of

the CPC, which read as under:-

“Costs where [indigent person] succeeds –

Where the plaintiff succeeds in the suit, the

Court shall calculate the amount of Court

fees which would have been paid by the

plaintiff if he had not been permitted to sue

as an indigent person, such amount shall be

recoverable by the State Government from

any party ordered by the decree to pay the

same, and shall be a first charge on the

subject-matter of the suit.”

We have considered the argument raised by learned counsel for

the appellant and are of the considered view that if no ad volorem Court fee

is payable for a petition filed before the Family Court then the question of

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recovery of the Court fee from the defendant against whom the decree has

been passed in terms of Section 33 Rule 10 of the CPC would not arise.

Therefore, we set aside the part of the order by which the Family Court has

directed the recovery of Court Fee after holding that plaintiff No.2 is entitled

to `5,000/- per month as maintenance from the present appellant and further

directed the Collector, Barnala to recover the same.

Insofar as the merits of the case are concerned, in view of a

decision rendered by this Court in the case of judgment in the case of

“Nachhattar Singh Vs. Satinder Kaur and others” 2007(4) RCR (Civil) 826

wherein it has been held that the father-in-law is liable to maintain grand-

children if they are unable to maintain themselves and the income of their

mother/father is inadequate for their maintenance, plaintiff No.2 to whom

`5,000/- per month has been awarded by the Family Court, shall remain the

grand-daughter of the appellant after the death of her father even if her

mother had contracted second marriage which has otherwise been failed as

well.

No other point has been raised by the counsel for the appellant

in this regard.

In view of the above, the present appeal is hereby disposed of.

(RAKESH KUMAR JAIN)
JUDGE

(ANUPINDER SINGH GREWAL)
17.05.2019 JUDGE
Vivek

Whether speaking /reasoned : Yes
Whether Reportable : Yes

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