Ramesh Chandra Jaiswal Vs Pankaj Jaiswal

Petitioners have challenged order dated 25.11.2024, passed by District Magistrate Haridwar in an Appeal filed by respondent under Section 16(1) of Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

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It transpires that Ramesh Chandra Jaiswal (father) moved an application under aforesaid Act, for eviction of his son (respondent herein) from his house situate in Bahadrabad, District Haridwar, which was allowed by Sub Divisional Magistrate/Tribunal, vide order dated 03.11.2022.

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Respondent (son) challenged the order of eviction passed by Sub Divisional Magistrate by filing an Appeal before District Magistrate. During pendency of Appeal, father of the respondent passed away. The Appellate Authority / District Magistrate allowed the Appeal by holding that due to death of parent, cause of action do not survive and set aside the eviction order

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passed by the Sub Divisional Magistrate.

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Learned counsel for the petitioners submits that right of appeal is available under the aforesaid Act only to a senior citizen or a parent; since respondent is neither senior citizen nor parent, therefore, the appeal filed by him against an order passed in favour of his father is not maintainable.

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Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 reads as under:-

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“ 16. Appeals. -(1) Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal:

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Provided that on appeal, the children or relative who is required to pay any amount in terms of such maintenance order shall continue to pay to such parent the amount so ordered, in the manner directed by the Appellate Tribunal:

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Provided further that the Appellate Tribunal may, entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

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(2) On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be served upon the respondent.

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(3) The Appellate Tribunal may call for the record of proceedings from the Tribunal against whose order the appeal is preferred.

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(4) The Appellate Tribunal may, after examining the appeal and the records called for either allow or reject the appeal.

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(5) The Appellate Tribunal shall, adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal shall be final:

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Provided that no appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative.

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(6)The Appellate Tribunal shall make an endeavour to pronounce its order in writing within one month of the receipt of an appeal.

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(7)A copy of every order made under sub-section (5) shall be sent to both the parties free of cost.”

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The aforesaid Act is a self contained Code, which confers certain rights to parents and senior citizens. It provides for a separate forum for

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enforcement of those rights; provides mechanism for enforcement of orders and also provides the appellate forum. Section 16 of the Act provides for appeal against order passed by Tribunal constituted under Section 7. Except Section 16, there is no other provision dealing with appeals in the Act.

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A careful reading of Section 16(1) reveals that only a senior citizen or a parent has the right to appeal against order of a Tribunal and it also prescribes period of limitation for filing appeal.

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Learned counsel for the petitioner submits that the eviction order was passed against respondent on an application filed by his father, therefore, in view of provision contained in Section 16(1) of the Act, the appeal filed by respondent was not maintainable and the Appellate Tribunal/ District Magistrate acted without jurisdiction in allowing his appeal.

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Learned counsel for the respondent, per contra, submits that appeal filed by his client was very much maintainable, as a party against whom eviction order is passed, cannot be left remediless. He relies on a judgment rendered by Punjab & Haryana High Court in the case of Paramjit Kumar Saroya v. Union of India and another, reported in AIR 2014 P&H 121, in support of his contention that appeal filed by respondent is maintainable. Paragraph nos. 31 & 32 of the said judgment are reproduced below:-

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“31. Now coming to the conspectus of the discussion aforesaid, we have no doubt in our mind that we would be faced with the serious consequences of quashing such a provision which deprives the right of one party to the appeal remedy, while conferring it on the other especially in the context of the other provisions of the same Section as well

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as of the said Act. We have to avoid this. The only way to avoid it is to press into service both the principles of purposive interpretation and casus omissus. The Parliamentary discussions on the other provisions of the said Act do not convey any intent by which there is any intent of the Parliament to create such a differentiation. There is no point in repeating what we have said, but suffice to say that if nothing else, at least to give a meaning to the first proviso of Section 16(1) of the said Act, the only interpretation can be that the right of appeal is conferred on both the sides. It is a case of an accidental omission and not of conscious exclusion. Thus, in order to give a complete effective meaning to the statutory provision, we have to read the words into it, the course of action even suggested in N. Kannadasan's case (supra) in para 55. How can otherwise the proviso to sub section (1) be reconciled with sub section itself. In fact, there would be no need of the proviso which would be made otiose and redundant. It is salutary role of construction of the statute that no provision should be made superfluous. There is no negative provision in the Act denying the right of appeal to the other parties. The other provisions of the Act and various sub sections discussed aforesaid would show that on the contrary an appeal from both sides is envisaged. Only exception to this course of action is the initial words of sub section (1) of Section 16 of the said Act which need to be supplanted to give a meaning to the intent of the Act, other provisions of the said Act as also other sub sections of the same Section of the said Act. In fact, in Board of Muslim Wakfs Rajasthan's case (supra), even while cautioning supply of casus omissus, it has been stressed in para 29 that the construction which tends to make any part of the statute meaningless or ineffective must always be avoided and the construction which advances the remedy intended by the statute should be accepted. This is the only way we can have a consistent enactment in the form of whole statute.

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We are thus of the view that Section 16(1) of the said Act is valid, but must be read to provide for the right of appeal to any of the affected parties.”

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He also relies upon a judgment rendered by Division Bench of Hon’ble Allahabad High Court in the case of Akhilesh Kumar and another v. State of U.P. and others, reported in 2019, 3 AWC 2206. Paragraph nos. 8 & 9 of the said judgment relied by learned counsel for respondent are reproduced below:-

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“8. In a similar controversy the Madras High Court in Balamurugan vs. Rukmani (C.R.P.(PD)(MD) No. 437 of 2015 & M.P.(MD)Nos. 1 & 2 of 2015 decided on, 29 April 2015) (Manu/TN/2190/2015) in agreement with the view taken inParamjit Kumar Saroya (supra) has held that an appeal under section 16 of the Act, 2007 would be maintainable at the behest of both the parties, i.e. at the instance of the aggrieved party for the reason that where the Tribunal decides a case in favour of the senior citizens or parents, the children or dependent or relatives against whom

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the order is passed and against whom it can be enforced under section 11 of the Act, 2007 would be the aggrieved person and have a right to file an appeal.

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We find ourselves in agreement with the view taken by the Punjab and Haryana High Court in Paramjit Kumar Saroya (supra) andBalamurugan (supra) because if the right of appeal is denied to the aggrieved party, namely, child or children or relatives the appeal clause under the Act, 2007 would be frustrated and tantamount to denying them the similar right of appeal as provided to another party who is the senior citizens or parents.”

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Learned counsel for the respondent also relies upon a Division Bench judgment dated 29.11.2023 of Bombay High Court rendered in Writ Petition No. 36 of 2023, Jagdish Pitamber Pawar v. Pitamber Pundalik Pawar. Paragraph no. 10 of the said judgment is reproduced below:-

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“10. Once it is noticed that there was no debate in the Parliament while passing the bill touching this very aspect qua Section 16(1) and when it is noticed that though there was a discussion in the Parliament on the other provisions of the Act but which did not reflect anything in respect of Section 16, we are in respectful agreement with the observations (supra) in the matter of Paramjit Kumar Saroya. There is New 40.WP.36.23.odt nothing to demonstrate that the provision of Section 16 was drafted designedly to provide the right of appeal only to a senior citizen or a parent, it is a clear case of casus omissus which can be supplanted by resorting to purposive interpretation, to avoid the anomalous situation. We, therefore, respectfully agree with the reasoning in the matter of Paramjit Kumar Saroya (supra).”

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With utmost humility at its command, this Court finds it difficult to subscribe to the view expressed in the aforesaid judgments relied by learned counsel for the respondent. Right to appeal is a creation of statute; it exists only when it is explicitly provided for by law or statute. In other words, right to appeal is not a natural or inherent right and it must be specifically granted by a law. A statute granting the right to appeal can also specify the conditions under which an appeal can be made, such as time limits or the need to deposit certain amount of money. It is now well settled that right to appeal is a substantive right

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and not merely a procedural right.

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Appeal like review is creature of statute. The statute may provide limited right of appeal and it may provide right of appeal to one party and not to the other; it is for the legislature to decide which party has to be given right to appeal. There are statutes, which require the party filing appeal to deposit a certain percentage of the disputed amount as pre-condition for entertaining appeal.

¶53

A reading of Section 16(1) of the aforesaid Act leaves no manner of doubt that it is only the senior citizens and parents, who are given a right to prefer an appeal. There is no ambiguity in the provision contained in Section 16(1), which deals with right to appeal, which is a substantive right, therefore, reading something into Section 16 with a view to provide right to appeal to children would not be proper.

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The Maintenance and welfare of Parents and Senior Citizens Act, 2007 was enacted with a view to protect the interest of parents and senior citizens. The statement of objects and reasons of the said Act refers to the traditional norms and values of the Indian society which laid stress on providing care for the elderly, but due to the withering of the joint family system, a large number of elderly are not being looked after by their family. It is observed that ageing has become a major social challenge and there is a need to give more attention to the care and protection of the elderly persons. It is perceived that the procedure for claiming maintenance under the Code of Criminal

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Procedure, 1973 is time consuming as well as expensive, therefore, the need to have a simple, inexpensive and speedy provision to claim maintenance for the parents was felt.

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From the scheme of the Act, it is apparent that it was enacted to provide for institutionalization of a suitable mechanism for protection of life and property of senior citizens. Therefore, the legislature in its wisdom conferred right of appeal only to parents and senior citizens and not to their children, as during their twilight years, parents/senior citizens need speedy remedy and they cannot be made to run from one forum to another for remedy.

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Hon’ble Supreme Court in the case of Super Cassettes Industries Ltd. v. State of U.P. & another, (2009) 10 SCC 531 has held that right of appeal is not a natural or inherent right and it cannot be assumed to exist unless expressly provided for by the statute. Paragraph no. 23 of the said judgment is reproduced below:-

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“ 23. It is well known that the right of appeal is not a natural or inherent right. It cannot be assumed to exist unless expressly provided for by statute. Being a creature of statute, remedy of appeal must be legitimately traceable to the statutory provisions. It is true that mere omission or error in quoting the provisions would not affect the maintainability of appeal, if otherwise, the order impugned is amenable to appeal.”

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Similar view was expressed by Hon’ble Supreme Court in the case of Raj Kumar Shivhare v. Directorate of Enforcement, (2010) 4 SCC 772. Paragraph nos. 19, 27 & 29 of the said judgment are reproduced below:-

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“19. The word “any” in this context would mean “all”. We are of this opinion in view of the fact that this section confers a right of appeal on any person aggrieved. A right of appeal, it is well settled, is a creature of statute. It is never an inherent right, like that of filing a suit. A right of filing a suit, unless it is barred by statute, as it is barred here under Section 34 of FEMA, is an inherent right (see Section 9 of the Civil Procedure Code) but a right of appeal is always conferred by a statute. While conferring such right a statute may impose restrictions, like limitation or pre-deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. Whenever such limitations are imposed, they are to be strictly followed. But in a case where there is no limitation on the nature of order or decision to be appealed against, as in this case, the right of appeal cannot be further curtailed by this Court on the basis of an interpretative exercise.

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27. In a case where right of appeal is limited only from a final order or judgment and not from interlocutory order, the statute creating such right makes it clear (see Section 19 of the Family Courts Act, 1984) which is set out below:

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“19. Appeal .—(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order , of a Family Court to the High Court both on facts and on law.

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(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):

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Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991. (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.”

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(emphasis supplied)

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29. By referring to the aforesaid schemes under different statutes, this Court wants to underline that the right of appeal, being always a creature of a statute, its nature, ambit and width has to be determined from the statute itself. When the language of the statute regarding the nature of the order from which right of appeal has been conferred is clear, no statutory interpretation is warranted either to widen or restrict the same.”

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Since the machinery provided in the aforesaid Act is not meant to decide civil or property rights but to protect the rights of parents/senior

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citizens, therefore, only the parents/ senior citizens, who are at the receiving end due to neglect by their children, are given the right to appeal.

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Thus, this Court is of the considered opinion that in view of the plain language of Section 16 of the aforesaid Act, only a parent / senior citizen can maintain an appeal against an order passed by Maintenance Tribunal and children or relative of a senior citizen are not entitled to file appeal under Section 16 of the Act.

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In view of the legal position, as discussed above, learned District Magistrate / Appellate Tribunal erred in entertaining and deciding the appeal filed by respondent. The impugned order passed by Appellate Tribunal is thus without jurisdiction. Accordingly, the writ petition is allowed. The impugned order dated 25.11.2024 passed by District Magistrate is set aside. This judgment, however, will not preclude the respondent from approaching the appropriate forum, if available, in law.

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________________________ MANOJ KUMAR TIWARI, J.

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Dt: 03.07.2025 Navin NAVEEN CHANDRA Digitally signed by NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006da82a131bb4e4403d3c0a15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA875643AF56D653D095C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRA Date: 2025.07.08 11:23:10 +05'30'

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Ramesh Chandra Jaiswal v. Pankaj Jaiswal

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Ramesh Chandra Jaiswal v. Pankaj Jaiswal

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