1 IN THE HIGH COURT OF BOMBAY AT GOA. MISCELLANEOUS CIVIL APPLICATION NO.782/2010 AND CIVIL REVISION APPLICATION NO.9/2011. Miscellaneous Civil Application No.782/2010. IN Appeal from Order No.35/2010. Dr. Amit Dilip Kudchadkar, Through POA Holder, Shri Kedar Kudchadkar, Major, Doctor, R/O. House No. 209, St. Joaquim Road, Margao-Goa. …....... Applicant. Versus Smt. Amina Kudchadkar alias Amina Nevrekar, Major, R/o. Navelkar, Ornate Estate, Bainguinim, Old Goa. …....... Respondent. Mrs. A. Agni , Advocate for the applicant. Mr. Rajendra Pai and Mr. S. Taleigaonkar, Advocates for the respondent. WITH CIVIL REVISION APPLICATION NO.9/2011. Smt. Amina Kudchadkar alias Amina Nevrekar, Major, R/o. Navelkar, Ornate Estate, Banguinim, Old Goa. …....... Applicant. 2 Versus Dr. Amit D. Kudchadkar, Occ.:- Medical Practitioner, Age-35 yrs., R/o. House No.209, St. Joaquim Road, Margao-Goa. …....... Respondent. Mr. Rajendra Pai and Mr. S. Taleigaonkar, Advocates for the applicant. Mrs. A. Agni, Advocate for the respondent. Coram:- A. P. LAVANDE,J Reserved on:- 16th March, 2011. Pronounced on:-6th April, 2011. ORDER Civil Revision Application no.9/2011 and Miscellaneous Civil Application no.782/2010 are being disposed of by common order since they arise out of same proceedings. 2. Briefly, the facts leading to filing of these proceedings are as under:- On 6.10.2004 Dr. Amit Kudchadkar, the respondent in revision application filed the matrimonial petition against the applicant 3 Smt. Amina Kudchadkar, under Article 4(4) of Law of Divorce before the Civil Judge, Senior Division, Margao seeking divorce on the ground of desertion and mental cruelty. Applicant contested the proceedings by filing written statement. On 5.12.2007 the applicant filed an application for maintenance which was registered as Exh.D-38. The respondent filed his reply opposing the application. By judgment and order dated 21.1.2008 learned trial Court granted the divorce. Thereafter evidence was led in the application for maintenance by both sides. On 29.6.2010 the learned trial Court partly allowed maintenance application and granted permanent maintenance of Rs.25,00,000/-(Rupees Twenty five lakhs only) to the applicant. On 26.7.2010 the respondent preferred Miscellaneous Civil Appeal bearing no. 77/2010, challenging the judgment and order passed by the learned trial Court. On 14.9.2010 the applicant filed an application challenging the jurisdiction of the appellate Court to decide the appeal and contended that the appeal would lie before this Court. The respondent filed his reply opposing the application. By impugned Order dated 20.11.2010 learned Appellate Court dismissed the application filed by the applicant thereby holding that the District Court has jurisdiction to entertain the appeal filed by the respondent. Civil Revision application no. 9/2011 has been filed challenging the said order. The parties hereafter 4 will be referred to as per their status in the revision application. 3. Against Judgment and Order dated 29.6.2010 passed by the learned trial Court partly allowing the maintenance application, the applicant preferred Appeal from Order no. 35/2010 on the ground that maintenance granted was inadequate. The said Appeal from Order was admitted by this Court ex-parte on 8.10.2010. On behalf of respondent in the said appeal Miscellaneous Civil Application no.782/2010 has been filed for recalling the order of admission. 4. Mr. Pai learned Counsel for the applicant in Civil Revision Application No.9/2011 and for the appellant in Appeal from Order no. 35/2010 submitted that lower appellate Court has no jurisdiction to entertain the appeal preferred by the respondent since the applicant had claimed Rs.75,00,000/- in the application seeking maintenance. Placing reliance upon Section 22 of the Goa Civil Courts Act and Section 2(2) of C.P.Code, Mr. Pai submitted that since the claim of the applicant is more than 20,00,000/- ( Rupees twenty lakhs only) District Court has no jurisdiction to entertain the appeal. According to the learned Counsel, judgment and order passed by the learned trial Court 5 granting maintenance has the force of a decree and as such District Court has no jurisdiction to entertain the appeal. 5. Placing reliance upon Articles 29 and 30 of the Law of Divorce, Mr. Pai submitted that the impugned Order by the learned Trial Court granting maintenance has the force of a decree and since the applicant had claimed Rs.75,00,000/- ( Rupees seventy five lakhs only) the same should be treated as value for the purpose of filing the appeal against the order passed by the learned trial Court. According to the learned Counsel the application for maintenance filed by the applicant is a suit for the purpose of section 22 of the Goa Civil Courts Act. According to Mr. Pai, the valuation in the divorce suit could not govern the forum of appeal for preferring the appeal against order granting maintenance and it is the claim in the application for maintenance which should decide the forum of appeal from an order passed by the learned trial Court on application for maintenance filed by the applicant. Mr. Pai, further submitted that even if the claim made in the application seeking maintenance is considered the total claim works out to Rs.48,00,000/- (Rupees forty eight lakhs only) and as such appeal from order granting maintenance would lie before this Court and not before the 6 District Court. According to learned Counsel although learned trial Court has styled the decision as an order the nomenclature is not relevant and the said order has the force of decree as it conclusively determines the right of the parties and satisfies the tests of “decree” as defined in Section 2(2) of C.P.C 1908. According to Mr. Pai, order dated 29.6.2010, passed by the learned trial Court has the force of decree and as such against the said order appeal is maintainable under section 96 of C.P.C. Mr. Pai, further submitted that the application filed by the respondent for recall of order of admission in Appeal from Order No. 35/2010 is not maintainable. In support of his submissions, Mr. Pai relied upon following Judgments:- (1) Shiv Shakti Coop. Housing Society, Nagpur Vs. Sawraj Developers and others, 2003(6) SCC 659, (2) Sheela Rodrigues and anr. Vs. Lourencinha Ana D'Cruz Rodrigues Fernandes, AIR 2000 Bom 97. 6. Per Contra, Mrs. Agni, learned Counsel for the respondent supported the order impugned in Civil Revision Application and submitted that the lower appellate Court has correctly analysed the legal provisions and has correctly come to the conclusion that the appeal before the District Court was maintainable. According to learned Counsel, the 7 impugned Order dated 29.6.2010 does not have force of a decree and as such against the said order no appeal is maintainable under section 96 of C.P.C. Placing reliance upon Articles 29, 30 and 31 Mrs. Agni, submitted that an application for maintenance which is filed in the course of a suit cannot be treated as separate suit and for the purpose of valuation and the valuation given in the main suit, governs the forum of appeal. According to learned Counsel, application for maintenance filed by the applicant is in the nature of counter claim and, therefore, the valuation in suit for divorce determines the forum of appeal. Mrs. Agni further submitted that since the suit for divorce was valued at Rs.1,10,000/-, the appeal filed before the District Court by the respondent is maintainable. Learned Counsel further submitted that the decision dated 29.6.2010 of the learned trial Court awarding maintenance is an order and not a decree and Article 31 makes it clear that there is no finality to the order passed by the trial Court granting relief. According to learned Counsel Article 31 postulates that an amount of maintenance fixed by the Court can be reduced in future on an application made by spouse who provides it and as such the same discloses that there is no finality to the order granting maintenance passed by the learned trial Court which can be varied on account of change in circumstances. Mrs. Agni, further submitted that in 8 terms of Section 7 of the Goa Daman and Diu Suit Valuation Act, 1965 an objection to maintainability of an appeal has to be taken at the earliest opportunity and therefore the respondent has filed an application for recall of the order of admission in Appeal from Order No. 35/2010. Learned Counsel further submitted that the appellant herself has filed Appeal from Order challenging the order dated 29.6.2010 passed by the learned trial Court treating the same as an order which clearly discloses that the appellant herself does not treat the order as a decree. According to learned Counsel the application for maintenance can never be treated as a separate suit and the decision thereof as a decree and therefore the appeal before the District Court filed by the respondent is maintainable. In support of her submissions, Mrs. Agni relied upon following Judgments:- (1) Shri Octaviano Teogono Alcacoas Vs. Smt. Rosa Milagrina A, 2005(1) ALL MR 758, (2) Kazi Syed Saifuddin Vs. Katurchand Abhayarajji Golchha, 2000(4) Bom. C.R. 582, (3) Teofilo Barreto Vs. Sadashiva G. Nasnodkar and ors, 2007(4) Bom. C.R. 830, and (4) Rajan Dessai and others Vs. Sanjita Udaisingh Rane, 2000(2) Goa L. T. 479. 9 7. I have considered the rival submissions, perused the record and the judgments relied upon. 8. The lower appellate Court held that since the matrimonial petition in which the application for maintenance was filed was valued at Rs.1,10,000/- appeal would lie before the District Court since the value of the suit would decide the forum of appeal. Learned Judge placed reliance upon the judgment of this Court in the case of Teofilo Barreto ( supra) in which it has been held that the value of the subject matter of the suit decides the forum of appeal. 9. In view of the rival contentions, the main question which arises for determination is whether the value of the matrimonial petition or amount claimed in the maintenance application would determine the forum of appeal. The incidental question which arises on submission of Mr. Pai is that whether the order passed by the trial Court granting maintenance has the force of a decree. 10. In order to appreciate the rival contentions, it would be 10 appropriate to quote Article 30 since application for maintenance was filed by the defendant in the matrimonial petition in terms of Article 30. Article 30 reads thus:- The maintenance referred to in the preceding Article, may be sought by the spouses along with the divorce suit itself or after the judgment granting the divorce. Paragraph 1:- In the first case contemplated in this Article, the claim for maintenance shall be made by a separate pleading which the plaintiff shall produce alongwith the plaint and the defendant alongwith the written statement. In both the cases the claim may be contested within the time limit of three hearings, by the defendant from the service of summons and by the plaintiff from the presentation of the claim by the defendant, and one and the other may present rejoinder and sur-rejoinder respectively within the time limit of two hearings. Paragraph 2. The claim for maintenance referred to in the previous paragraph shall proceed alongwith the suit for divorce and its steps subsequent to the pleadings shall continue only in case divorce is granted. 11 Paragraph 3: Where maintenance is claimed subsequent to the grant of divorce, the respective suit shall likewise be appended to the main suit. Paragraph 4:- In all other respects, suits for maintenance shall proceed according to the provisions laid down in the Code of Civil Procedure for the ordinary suits, with restrictions identical to those of clauses 1, 2, 3 of Article 8 of this Decree. 11. Article 31 provides, that the amount of maintenance that may be fixed can be reduced in future on an application made by spouse upon proving that spouse does not need the amount in view of the change in circumstances. It also provides that amount of maintenance can be increased at the instance of spouse proving that he/she needs higher allowance and that other spouse can afford the same in view of the improved circumstances, provided that improvement is not due to new marriage that the other may have contracted. 12. From a bare reading of above provisions, it is clear that order granting maintenance cannot be said to finally adjudicate the rights of the parties. In terms of Article 31 amount of maintenance can be changed 12 depending upon the change in circumstances. Therefore, I find it difficult to accept the submission of Mr. Pai that order granting maintenance in a petition for divorce has the force of a decree. In my view, the order dated 29.6.2010 does not amount to decree as defined in Section 2(2) of C.P.Code. 13. The main question which arises for determination is whether the application for maintenance filed during the pendency of divorce in terms of Article 30 should be treated as separate suit or it is an application in the main suit by which relief is sought by defendant. The trial Court has held that since the application was filed in the divorce suit the same cannot be termed as a separate suit and the valuation given in the matrimonial petition would determine the forum of appeal. I do not find any legal infirmity in the said finding. In the present case, application for maintenance filed by the defendant in the matrimonial petition cannot be treated as a separate suit and therefore the mere fact that defendant claimed more than 20,00,000/- ( Rupees twenty lakhs only) would not mean that against an order passed in an application claiming maintenance exceeding 20,00,000/- ( Rupees twenty lakhs only ), the appeal would lie before this Court. In my opinion, the learned trial Court was legally 13 justified in placing reliance upon the judgment of this Court in the case of Teofilo Barreto( supra). 14. In the present case, the application seeking maintenance, though filed during the pendency of petition for divorce, was taken up for consideration after the decree of divorce was granted in terms of Article 30. I, therefore find it difficult to accept the submission of Mr. Pai, that the same must be treated as a separate suit. Such an application filed by the respondent cannot be strictly construed as counter claim in terms of Order 8 Rule 6-A of C.P.C. but the same must be treated as an application filed in the main petition filed by the petitioner seeking divorce. Therefore, I do not find merit in the submission of Mr. Pai that the amount of maintenance claimed would determine the forum of appeal. In my view, the lower appellate Court cannot be faulted for having held that appeal preferred by the respondent before it was maintainable. 15. Since the parties have relied upon several authorities, I deem it appropriate to refer to them. (i) In the case of Octaviano Teogono Alcacoas ( supra) learned 14 Single Judge of this Court has held that although right of appeal is a substantive right, forum where appeal should be filed is a procedural matter. (ii) In the case of Kazi Syed Saifuddin (supra) the Full Bench of this Court held that in a suit for eviction of tenant in which mesne profit are claimed the valuation of suit would determine the forum of appeal and not the amount granted by way of mesne profit. (iii) In the case of Teofilo Bareto(Supra) learned Single Judge of this Court held that in a suit valued at Rs. 38,500/- in which defendants claim by way of counter claim damages for Rs.90,00,000/-, the appeal filed by the plaintiffs before the District Court was maintainable. Learned Judge held that valuation for the purpose of filing appeal may be taken as the value assessed by the plaintiffs in the suit. (iv) In the case of Rajendra Desai(supra) the learned Single Judge of this Court has held that appeal against the order in inventory proceedings is a miscellaneous appeal in terms of section 104 of C.P.C. 15 (v) In the case of Sheela Rodrigues (supra) relied upon by Mr. Pai, learned Single Judge has held that in an inventory proceedings if the valuation of the assets disclosed by the applicant exceeds Rs.1,00,000/- the appeal would lie before High Court interms of section 22 of the Civil Courts Act( as on amendment). (vi) In the case Shiv Shakti Coop. Housing Society, the Apex Court was dealing with the question of maintainability of revision application after amendment to section 115 of C.P.C. In the said Judgment the Apex Court held that whether an order amounts to decree depends upon whether it fulfills the conditions mentioned in section 2(2) of C.P.C. 16. In view of above discussion, I am of the considered opinion that the learned trial Court was rightly justified in passing the impugned Order dated 20.11.2010 which is impugned in Civil Revision Application No. 9/2010. Consequently, Appeal from Order No.35/2010 preferred against order dated 29.6.2010 passed by the learned trial Court would lie before District Court and not before this Court. 16 17. Therefore, I pass the following Order:- i. Civil Revision Application no. 9/2010 is dismissed. ii. MCA no. 782/2010 is allowed. It is held that appeal against impugned Order dated 29.6.2010 would lie before District Court South Goa Margao. iii. Memo of Appeal in Appeal from Order No. 35/2010 and certified copy of impugned Order dated 29.6.2010 be returned to the appellant subject to the appellant placing on record xerox copies of the same. Liberty to the appellant in Appeal from Order no. 35/2010 to prefer an appeal before the District Court South Goa Margao, if she is so advised subject to limitation. 18. Civil Revision Application No. 9/2011, Appeal From Order No. 35/2010 and Miscellaneous Civil Application No. 782/2010 stand disposed of accordingly. A. P. Lavande, J. vn*