IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.166 of 2007 SMT.ANITA GUPTA wife of Sheo Kumar Gupta and daughter of Sri Arjun Prasad Sah, Residing in Mohalla- Nayatola, South of Aerodram Police Station- Kotwali District- Bhagalpur Versus SHEO KUMAR GUPTA son of Sri Radhe Shyam Sahu Resident of village- Ramna, Police Station- Ramna District Garhwa (Jharkhand) presently residing at 161, Sector-24 Rohini, Pocket No. 16, New Delhi 110085 ----------- 9 19-02-2009 Learned counsel for the respondent has raised serious objection that this appeal should have been treated to be a First Appeal and not a Miscellaneous Appeal in the light of a Division Bench judgement of this court dated 23-2-2007 passed in the case of Raj Kumar Saha vs Ritu Kala Saran, 2008 (2), PLJR, 211. In that case the court noticed that the orders passed by the Civil Court is in the form of a decree and on that account it was held that a First Appeal will lie for deciding the correctness of a decree. However, direction was given to the Stamp Reporter to examine these questions and make a fresh Stamp reporting after going through the several judgments of this court on the point. On the other hand learned counsel for the appellant has drawn our attention to a judgement and order dated 18-9-2008 passed by another Division Bench in the case of Binod Thakur vrs. the State of Bihar & Anr, 2008 (4) PLJR, 545 in which after noticing relevant provisions and contrasting the same with the provisions in Section 28 of the Hindu Marriage Act, 1955 the Division Bench finally held that neither by any direct provision nor any legal fiction, the judgement or order of the Civil Court is treated as decree made in exercise of original civil jurisdiction. Hence, the objection of the Stamp Reporter that the Miscellaneous Appeal should have been labeled as First Appeal was overruled with a further direction to the Stamp Reporter - 2 - to keep in mind that order while processing appeals u/s 19 of the Family Courts Act, 1984. Clearly in view of aforesaid direction of the Division Bench in the later judgement the Stamp Reporter has not raised any objection against labeling of this appeal as Miscellaneous Appeal. Learned counsel for the respondent has submitted that he has to examine whether some later judgement has been passed taking contrary view in the matter. What would be the effect of such later judgement on the Stamp Report may have to be considered later. At the present stage this appeal will be treated as Miscellaneous Appeal. This disposes of the preliminary objection raised by learned counsel for the respondent. Heard the parties on merits. By the impugned order dated 9-4-2007 passed in Marriage Case no. 113/2006, the learned Principal Judge, Family Court, Bhagalpur has dismissed the suit of the appellant on a finding that the prayer portion is vague and does not clearly specify that appellant wanted decree of divorce. There is another finding that the plaint had not been signed and verified by the applicant, Anita Gupta, which was required under the provisions of law of pleading as well as Family Courts Act. In view of such defects the learned court below held that it was needless to deal with statements of other two witnesses PW 2 and PW 3. The defects pointed out by the learned Principal Judge, Family Court, Bhagalpur were such which should have been allowed to be corrected by the applicant, Anita Gupta, before deciding to dismiss her suit on merits by taking help of such defects. It appears that no such opportunity was given to - 3 - her or her counsel. The appellant wants a decree of divorce on the ground of cruelty and desertion. From the submission of learned counsel for the respondent it appears that the appellant had earlier filed a suit for restitution of conjugal rights but later on the present suit for divorce was filed. This fact does not appear from the records of the present appeal. However, from the submissions of parties it is clear that the parties understand the present suit to be a suit for decree of divorce and, therefore, only on account of vagueness in the prayer portion the suit should not have been dismissed. Similarly, for removing the defect in the plaint on account of absence of signature and verification the applicant should have given notice and time for removal of such defects. In view of aforesaid discussion, the impugned judgement and order is set aside and the matter is remitted back to the learned Principal Judge, Family Court, Bhagalpur to first give an opportunity to the applicant/appellant to amend the prayer portion and remove other defects in the plaint and if such corrective measures are taken by the applicant within time permitted, the suit shall be re-decided after hearing the parties in accordance with law. In order to avoid delay in re-hearing of the suit both the parties are directed to file appearance before the court below within a period of six weeks from today. The applicant must produce a copy of this judgement/decree before the court below prior to six weeks. BKS/ (Shiva Kirti Singh,J.) (J. N. Singh, J.)