Rajasthan High Court - Jodhpur

Smt. Yamini Dadhich vs Shri Vivek Dadhich ... on 1 December, 2023

Author: Vijay Bishnoi

Bench: Vijay Bishnoi

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                D.B. Civil Misc. Appeal No. 1991/2023

1.       Smt. Yamini Dadhich W/o Shri Vivek Dadhich, Aged About
         46 Years, Daughter Of Laharchand, Resident Of Plot No. 8
         B, Bhagat Ki Kothi, In Front Of Police Chowki, Vijay Nagar,
         Jodhpur (Raj).
2.       Meetaksh S/o Shri Vivek Dadhich, Aged About 25 Years,
         Residents Of Plot No. 8 B, Bhagat Ki Kothi, In Front Of
         Police Chowki, Vijay Nagar, Jodhpur (Raj).
                                                                     ----Appellants
                                       Versus
Shri Vivek Dadhich S/o Shri Bhanwar Lal Dadhich, Resident Of
Plot No. 278, Shiv Mandir Road, Ratanada, Jodhpur (Raj.).
                                                                    ----Respondent


For Appellant(s)             :     Mr. Himmat Jagga
                                   Mr. Rahul Balana



             HON'BLE MR. JUSTICE VIJAY BISHNOI

HON'BLE MR. JUSTICE MUNNURI LAXMAN

Order

01/12/2023

The present appeal is filed by the appellants being aggrieved

with the order dated 21.10.2023, whereby the application filed by

the appellants under Order 7 Rule 11 CPC read with Section 151

CPC has been dismissed.

Brief facts of the case are that the respondent has filed an

application under Section 7 of the Family Court Act, 1984 (for

short 'the Act of 1984') for recovery of possession and permanent

injunction against the appellants claiming that a house situated in

the city of Jodhpur, description of which is provided in the plaint, is

owned by him, however, the appellants have ill-treated him and

his mother and threatened them to implicate in false cases and

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they forcibly evicted him and his mother from the house in the

month of December, 2019 and at present he and his mother are

living in a rented accommodation.

It is claimed in the application that the appellants may create

a charge in the said house by selling the same to someone else by

procuring loan on it from the banks or financial institutions,

therefore, they may be restrained from doing so and the

possession of the house may be given to him.

Learned counsel for the respondent has filed written

statement along with the counter claim, which is pending

consideration before the Family Court No.2, Jodhpur (for short 'the

Family Court'). During the pendency of the same, the appellants

have moved an application under Order 7 Rule 11 CPC read with

Section 151 CPC claiming that the respondent has not furnished

the court fees as per the provisions of Rajasthan Court Fees and

Suits Valuation Act, 1961 (for short 'the Act of 1961') and

therefore, the application filed by the respondent under Section 7

of the Act of 1984 before the Family Court is liable to be rejected.

The said application is contested by the respondent while

claiming that he has moved application in relation to the his

property under Section 7 of the Act of 1984 and sufficient court

fees has already been paid.

The learned Family Court, after hearing counsel for the

parties, has rejected the said application while placing reliance on

the decision of Division Bench of this Court rendered in the case of

Smt. Mamta and Ors. Vs Hari Kishan, reported in 2004 (1) WLC

(Raj) 384.

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Learned counsel for the appellants has submitted that the

Family Court has grossly erred in placing reliance Smt. Mamta's

case (supra) because in that case, the question regarding

payment of court fees was in relation to an application seeking

maintenance and not for permanent injunction and recovery of

possession of any property. Learned counsel has further submitted

that as per the provisions of the Act of 1961, the respondent is

required to pay the court fees after making proper valuation.

Heard learned counsel for the appellants and perused the

material available on record.

It is not in dispute that a matrimonial dispute is going on

between the appellants and the respondent. The respondent has

approached the Family Court while moving application under

Section 7 of the Act of 1984 while claiming that the appellants

have forcibly evicted him from the house in question owned by

him and now they are trying to dispose it off by transferring to

someone else or to create a charge by taking loan through banks

or financial institutions. He has also prayed for recovery of

possession of his house.

For the sake of convenience, Section 7 of the Act of 1984 is

reproduced hereunder :

"Jurisdiction- (1) Subject to the other provisions of this Act, a Family Court shall-

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law,

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to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-

(a) a suit or proceeding between the parties to a marriage for a decree of nullity or marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-

(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment."

Explanation (c) of Section 7(1) clearly provides that a suit or

proceeding between the parties to a marriage with respect to the

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property of the parties or of either of them is maintainable before

the Family Court.

Any application filed before the Family Court under Section 7

of the Act of 1984 requires that the applicant to pay court fees as

per sub clause (k) of Clause 11 of Schedule-II of the Act of 1961.

The Division Bench of this Court in the case of Smt. Mamta

(supra) has held as under.

"7. In the State of Rajasthan, the Family Courts have been established under the provisions of the Family Courts Act, 1984. Chapter III of the Act is under the heading "Jurisdiction". Family Court is a Court which decides the disputes in exercise of the State's judicial power conferred on it by a Statute in a judicial manner and declares the rights of the parties.

8. Section 7 of the Act declares jurisdiction of a family Court exercisable by any district Court or subordinate civil Court to which provisions of CPC and Cr. P.C. have been applied by Section 10 of the Act. The Explanation appended to Section 7 provides the nature of the suits and proceedings referred-to in the sub-section.

9. Section 7 of the Family Courts Act, 1984 reads as follows :

"7. Jurisdiction.-- (1) Subject to the other provisions of this Act, a Family Court shall-

(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends.

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Explanation.-- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely :--

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage), or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise.--

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973; and

(b) such other jurisdiction as may be conferred on it by any other enactment."

10. Thus, Section 7 of the Act of 1984 confers jurisdiction on a Family Court specifying nature of the disputes which are triable by the Family Courts. As per Clause (f) of Explanation appended to Sub-section (1) of Section 7, the subject matter of the litigation pertains to a suit for proceeding for maintenance. The provisions of the CPC and the Cr.P.C. have been applied to the Family Courts by Section 10 of the Act. Sub-section (3) of Section 10 permits a Family Court to lay down its

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own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other. Section 11 provides that in every suit or proceedings to which the Act applies, the proceedings may be held in camera if the Family Court so desires. Section 13 prohibits appearance of a party through lawyer, except in a case where the Family Court considers it necessary in the interest of justice. Section 15 permits the Court to record the substance of the statement of a witness. In view of Section 16, the evidence of a formal witness can be taken even on affidavit.

11. Section 23 provides for making the rules by the State Government after consultation with the High Court. The State Government has framed the rules in the name of the Rajasthan High Court Family Courts Rules, 1994. Rule 7 provides that all actions instituted before the Family Court by way of plaint or petition or application or otherwise, as the Court thinks fit. Thus, the proceedings in the Family Court can be instituted by way of petition or application.

12. The Family Courts Act was enacted with an object to set up a forum for settlement of family disputes with due emphasis on conciliation and achieving socially desirable results and further to eliminate the rigid rules of procedure and evidence. The Law Commission in its 59th report (1974) had also stressed that in dealing with the disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and it should make reasonable efforts at settlement before the commencement of the trial. It covers the exclusive jurisdiction of the matters relating to :

"(i) matrimonial reliefs, Including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of marriage, or as to the matrimonial status of any person;

(ii) the property of the spouses or of either of them;

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(iii) declaration as to the legitimacy of any person;

(iv) guardianship of a person or the custody of any minor;

(v) maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure."

13. It makes an attempt to simplify the rules of evidence and procedure as to enable a Family Court to deal effectively. One of the objectives is to bring succor to women and children, who have been abandoned by her husband 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 Framers of the rules 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, we are of the view that the entire purpose of setting up Family Courts will be frustrated. With a view to deal with the action in a matrimonial dispute more quickly different from the procedure adopted in ordinary civil proceedings, the action will have to be taken as instituted on application. Any other interpretation asking to pay ad volorem court-fees will operate harshly and tends to price justice out of reach of many distress litigants and destroying the very object of setting-up of the Family Courts. Thus, when a woman and the children ask for the maintenance, the proceedings are to be initiated by way of an application. Section 7 of the Family Courts Act directs that the Family Court shall deal for the purpose of exercising the jurisdiction under the Act to be the district Court or other subordinate civil Court for the area to which the jurisdiction of the family Court exists. 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 the parties or any of them. Since the proceeding before the Family Court commences 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

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Act, 1961. Sub-clause (k) of Clause 11 of Schedule II of the Act of 1961 reads as follows :

"SCHEDULE II Fixed Fees Article Particulars Proper fee

11. Original petitions not otherwise provided for when filed on -

(i) a Court subordinate to the High Court; (Two rupees)

(ii) the High Court, (Ten rupees)"

14. Thus, the Court fee shall be payable under the above extracted residuary clause. As we have held that a proceeding before a Family Court is not a suit, Section 22 of the Rajasthan Court Fees and Suit Valuation Act, 1961 is not attracted. Section 22 is extracted as follows ;

"22. Suit for maintenance and annuities -- In the suits hereinafter mentioned, fee shall be computed as follows :--

(a) in a suit for maintenance, on the amount claimed to be payable for one year.

15. A bare look at Section 22 of the aforesaid Act shows that the said provision is applicable to suits and not applications or proceedings. The action instituted by the appellant wife and the children under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 is a proceeding in view of Section 7(f) and not a suit. Thus, the provisions of Section 22 of the Rajasthan Court Fees and Suit Valuation Act has no application. Our view is fortified by a Division Bench judgment of the Kerala High Court in Saleesh Babu vs. Deepa reported in 1996(2) Hindu LR 441. It is well established law that in case of fiscal Statute, the provision must be strictly interpreted giving every benefit of doubt to the subject and lightening, as far as possible, the burden of court-fees on litigant. Where an adjudication falls within two provisions of Court-fees Act one of which onerous for the litigant and other more liberal, the Court would apply that provision which is beneficial to the litigant. Reference be made to AIR 1957 SC 657, AIR 1965 SC 457 and 1976(3) SCC 800.

Accordingly, we hold that all the petitions in the

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Family Courts are in the nature of petitions or applications and the court-fees is payable under the Clause 11(k) of the Schedule II of the Rajasthan Court Fees and Suit Valuation Act."

In the above judgment, a Co-ordinate Bench of this Court

has held that the provisions of Section 22 of the Act of 1961 have

no application in the proceedings initiated by a party in Section 7

of the Family Court Act. We are in full agreement with the view

taken by this Court in above judgment.

Hence, we do not find any case for interference in the

impugned order passed by the Family Court.

Accordingly, the instant appeal being devoid of merit is

hereby dismissed.

(MUNNURI LAXMAN),J (VIJAY BISHNOI),J 6-DivyaTak/-