Dismissed

Shri Vishwas M. Korde v. Mrs. Vanamala Korde

Bombay HC24 Sept 2010FA/187/2002

Case brief

AI extract

What is this about?

The appellant, dissatisfied with a decree dissolving marriage, filed an appeal in the High Court against an order of the Civil Judge, Sr. Division. The respondent challenged the High Court's jurisdiction, arguing the appeal was incompetent as the forum was the District Court based on the amended Goa Civil Courts Act applicable at the time of the decision and filing.

What did the court decide?

The appeal was disposed of as incompetent.

Shri Vishwas M. Korde Vs Mrs. Vanamala Korde — Matrimonial and Divorce | Bombay HC (2010)

¶1

¶2

IN THE HIGH COURT OF BOMBAY AT GOA

¶3

FIRST APPEAL NO. 187 OF 2002

¶4

Shri Vishwas M. Korde, of major age, resident of Kolambe, Curti, Ponda, Goa. .......... Appellant. V/s.

¶5

Mrs. Vanamala Korde, of major age, resident of House No.779, Pontemol, Curchorem, Goa. ......... Respondent.

¶6

Mr. M. S. Sonak and Mr. J. Supekar, Advocates for the appellant.

¶7

Mr. M. B. Da Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the respondent.

¶8

CORAM :- D.G. KARNIK, J. Date :- 24^th September, 2010.

¶9

ORAL JUDGMENT :

¶10

(1) Heard.

¶11

(2) Mr. De Costa, learned Senior Advocate appearing for

¶12

respondent raises a preliminary objection about the maintainability of the appeal in the High Court. He submits that the appeal filed in the

¶13

¶14

High Court was incompetent, as the appeal had to be filed in the District Court only. He prays for dismissal of the appeal as incompetent.

¶15

(3) A brief narration of facts is necessary for considering the objection. The appellant and the respondent are husband and wife. The appellant filed a suit, bearing Special Civil Suit No.39/1994 (renumbered as Matrimonial Civil Suit No.5/2000/A), against the respondent for dissolution of their marriage in the Court of Civil Judge, Sr. Division, at Ponda. The appellant valued the suit in the sum of Rs.75,000/- for the purposes of jurisdiction. The Trial Court, upon consideration of the evidence, dismissed the suit of the appellant by its Judgment and Order dated 30^th March, 2002. Aggrieved by the decision of the learned Civil Judge, Sr. Division, Ponda, the appellant filed the appeal in this Court on 24^th June, 2002. A short question that arises for consideration is :

¶16

“ Which Court has the jurisdiction to entertain the appeal filed on 24^th June, 2002 against the decision of the Civil Judge, Sr. Division in a matrimonial suit ?”

¶17

¶18

(4) It is a common ground between the parties that in the State of Goa the provisions of the Hindu Marriage Act, 1956 are not applicable and the proceedings relating to dissolution of a marriage are still governed by the law as was applicable in Portuguese India prior to the liberation of Goa. It is also a common ground that a proceeding for dissolution of a marriage is to be initiated by a suit and not by a petition. Though some controversy is raised as to what should be the valuation of a suit for dissolution of marriage, that controversy need not detain me in the present case, as the suit for dissolution of the marriage was valued for the purpose of jurisdiction by the appellant in the sum of Rs.75,000/- and the said valuation was never challenged before the trial Court. The appeal is also valued at Rs.75,000/-. No objection has been filed challenging the valuation of the suit nor was any objection raised regarding valuation of the appeal. I, therefore, proceed on the assumption that the suit for dissolution of marriage was properly valued at Rs. 75,000/-for the purpose of jurisdiction.

¶19

(5) Section 6 of the Goa Civil Courts Act reads as under: “ 6. Appellate jurisdiction of District Court. - Save as otherwise expressly provided in this Act, the District Court shall be the Court of Appeal from all

¶20

¶21

decrees and orders passed by the subordinate Courts from which an appeal lies under any law for the time being in force.”

¶22

Section 22 of the Goa Civil Courts Act, as it originally stood, reads as under :

¶23

“ 22. Appeals from his decisions. - In all suits decided by a Civil Judge of which the amount or value of the subject matter exceeds [twenty five thousands] the appeal from his decision shall be direct to the High Court”.

¶24

Section 22 was first amended by Goa Act No.20 of 1998 with effect from 18^th August, 1998. By the said amendment, the words “twenty five thousands” were substituted by the words “one Lakh”. Section 22 was again amended by the Goa Civil Courts (Amendment) Act, 2009 with effect from 17^th September, 2009. By the amending Act of 2009, the words “one Lakh” were substituted by the words “twenty Lakhs”.

¶25

(6) A conjoint reading of Section 6 and Section 22 makes it clear that till 18^th August, 1998, when Section 22 of the Goa Civil Courts Act, 1965 was first amended, an appeal against a decision of a Civil Judge, where the value of the suit was upto Rs. 25,000/- lay to the District Court save and except where the appeal was statutorily

¶26

¶27

provided to any other Court. By reason of an amendment made by the Goa Act No. 20 of 1998, an appeal against the decision of a Civil Judge would lie to the District Court where the valuation of the suit is upto Rs. 1,00,000/-. The jurisdiction of the District Court to hear appeals was enhanced from rupees twenty five thousands to rupees one lac with effect from 18^th August, 1998. The jurisdiction of the District Court was further extended to hear appeals from the decision of a Civil Judge to rupees twenty lakhs with effect from 17^th September, 2009 when the Goa Civil Courts (Amendment) Act, 2009 was enacted. In the present case, the suit was valued at Rs.75,000/-. The suit was decided on 30^th March, 2002 and the appeal against the decision was filed on 24^th June, 2002. Thus, when the suit was decided as well as when the appeal was filed against the decision of the Civil Judge, the District Court had the jurisdiction to entertain and try the appeal in view of Section 6 read with Section 22 of the Goa Civil Courts Act, 1965.

¶28

(7) Mr. Sonak, learned Counsel for the appellant submitted that the suit for dissolution of marriage was filed in the year 1994 and at that time Section 22 of the Goa Civil Courts Act provided that an appeal against a decision of a Civil Judge, where the amount of the

¶29

¶30

value of the subject matter exceeded rupees twenty five thousand, lay directly to the High Court. Hence on the day the suit for dissolution of the marriage was filed, the appeal lay to the High Court since the valuation of the suit was more than rupees twenty five thousands. Mr. Sonak submitted that the right of appeal to the High Court which vested in the appellant on the date of institution of the suit was a substantive right and any amendment abrogating the right must be held to be prospective and would not apply to the pending litigation. It is

¶31

true that a right of an appeal which is conferred by a statute is a substantive right. Once such a right of appeal exists on the date of initiation of a proceeding and is sought to be taken away by an amendment during the pendency of the proceeding, the amending Act must be held to be prospective unless it is clearly intended to be retrospective. The amendment, unless it is retrospective, would not take away the right of an appeal which exists on the date of initiation of the proceedings. There is, however, a distinction between the right of an appeal and the forum of an appeal. Where during the pendency of a proceeding the forum to which an appeal lies is altered or changed, such an amendment would apply even to the pending proceedings and an appeal against a decision in the proceeding pending in the Trial Court would have to be filed in the new forum to

¶32

¶33

which an appeal is provided for by the amending Act and not in the old forum. While there is a vested right of an appeal, there is no vested right of a forum of an appeal. The fora of an appeal must be determined on the basis of the date of decision or the date on which the appeal is filed. I am not concerned in this case of a controversy which may arise where the change of forum to which an appeal lies is effected by an amendment made after the date of decision of the trial court, but before the date of filing of an appeal. Admittedly, in the present case, the forum of the appeal was changed by an amendment made in the year 1998. On 30^th March, 2002 when the trial Court decided the suit, by the legislative amendment, the forum of an appeal had already been changed. That forum remained unchanged when the appeal was filed in June, 2002. The District Court was the forum provided for an appeal, both on the date of decision of the Trial Court, as well as the date on which the appeal was filed. Consequently, the High Court had no jurisdiction to entertain and try the appeal on the date when the suit was decided and also on the date the appeal was filed. For these reasons, the appeal is liable to be dismissed as incompetent.

¶34

(8)

¶35

Mr. Sonak, the learned Counsel for the appellant submitted

¶36

¶37

that the appeal was filed under a bonafide mistake, in the High Court instead of in the District Court. The appellant, therefore, may be granted liberty to file a fresh appeal in the District Court by condoning the delay. This power of condonation of delay can only be exercised under Section 5, read with Section 14 of the Limitation Act by the District Court to which the appeal may be filed. Needless to say that if an appeal is filed in the District Court along with an application for condonation of delay, the District Court shall decide the same in accordance with law, taking into consideration that the law as to the forum of the appeal was not settled when the appeal was filed in this Court.

¶38

(9) With the above observations, the appeal is disposed of as incompetent. In the facts and circumstances of the case, parties shall bear their own costs of this appeal. Certified copy of the Judgment and decree of the trial Court be returned to the appellant.

¶39

D.G. KARNIK, J.

¶40

ssm.

Shri Vishwas M. Korde v. Mrs. Vanamala Korde

Case brief

What is this about?

What did the court decide?

Shri Vishwas M. Korde v. Mrs. Vanamala Korde

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Maharashtra State Financial Corporation Vs M/S Uday Waman Rane and Ors.

Vasant K. Palyenkar and Ors. Vs Smt. Agnela Fiel Figueira and Ors.

Mr.Balcrisna S.Naik Gaonkar and Ors. Vs Union of India and Ors.

Sridhar Ramchandra Kanolkar Vs Dy.Collector (Dev) L.A.O.

Communidade De Pirla Vs Govt.of Goa, Daman and Diu and Ors.

Bhikant Shanu Naik Gaonkar Vs Spl.Land Acquisition Officer and Anr.