Case No: Civil Revision No. 2219 of 1997
Judge: AK Badrul Huq,
Court: High Court Division,,
Advocate: Md. Khurshid Alam Khan,Mr. Mohammad Ali Khan,,
Citation: 53 DLR (2001) 152
Case Year: 2001
Appellant: Hasibur Rahman
Respondent: Shakila Begum
Subject: Family Law, Civil Law,
Delivery Date: 2000-8-24
High Court Division
(Civil Revisional Jurisdiction)
AK Badrul Huq, J.
Hasibur Rahman (Md)
Shakila Begum and another
August 24, 2000
Family Court Ordinance (XVIII of 1988)
Code of Civil Procedure, 1908
Section 107 Order XLI rule 33
The mere fact of first plaintiffs not having preferred an appeal or a cross-appeal or cross-objection would not by itself be sufficient to justify refusal to exercise the power contained in rule 33 of Order 41 of the Code.
Cases Referred To-
Md. Osman Gani Vs. Mst Kulsum Bibi and others 37DLR (AD) 63; Yousuf and Brothers Vs. Mirza Mohammad Mahdi Pooya and another 16 DLR (SC) 619.
Mohammad Ali Khan, Advocate—For the Petitioner.
Md Khurshid Alam Khan, Advocate—For the Opposite Party.
Civil Revision No. 2219 of 1997
AK Badrul Huq J.
1. Feeling aggrieved by a decision rendered by appellate Judge in a family Appeal where under maintaining decision recorded by Family Judge in a Family Suit enhanced amount of maintenance of plaintiff and her minor child on reversing decision rendered by Family Judge with respect to amount of maintenance, defendant as petitioner invoked this Court’s Civil Revisional Jurisdiction on laying a petition under section 115 of the Code of Civil Procedure to quash the decision under challenge.
2. A brief resume of facts essential and requisite for disposal of Civil Revision petition may be noticed and stated.
3. First and second opposite parties of Civil Revision petition as plaintiffs impleading petitioner and his father as First and Second defendants laid a suit being Family Suit No. 26 of 1982 in Family Court, Bagerhat for dower money and maintenance with contentions that First plaintiff was married to First defendant through a registered Nikah Nama dated 5-12-1987. Dower money of Taka 50,001.00 was fixed out of which Taka 6,001.00 had been paid to First plaintiff at the time of marriage and the rest amount of Taka 22000.00 as prompt dower was to be paid on demand by First plaintiff. Second plaintiff was born out of wedlock of First plaintiff and First defendant in the month of Falgoon, 1397 BS. First defendant took First plaintiff to her father’s house on 21 Jaistha, 1399 BS and left First and Second plaintiffs in that house. First defendant did not take care of plaintiffs. First and Second plaintiffs filed the suit for prompt dower money of Taka 22000.00 and for their maintenance at the rate of Taka 1000.00 and 500.00 per month respectively.
4. Defendant-petitioner of Civil Revision petition as First defendant resisted the suit on presentation of a written statement taking stand that on 21-4-1991 in his absence First plaintiff went to her father’s house with cash and kind and First defendant failed to bring back First plaintiff to his house. Further pleading was that First plaintiff waived her claim of dower.
5. Learned Family Judge, Bagerhat awarded part decree in favour of plaintiffs. Learned Family Judge awarded amount of Taka 22000.00 as prompt dower to First plaintiff and granted maintenance for First plaintiff and minor child Second plaintiff for an amount of Taka 250.00 and 150.00 per month respectively.
6. First defendant felt aggrieved of the above adjudication of Family Judge and sought setting aside the same through medium of appeal being Family Appeal No. 13 of 1983 before learned District Judge, Bagerhat.
7. Learned Subordinate Judge, First Court, Bagerhat heard the appeal, dismissed the same on modification of decision recorded by learned Family Judge with respect to granting of maintenance to First and Second plaintiffs. Learned Family Appellate Judge in recording modification took the view that learned Family Judge failed to take into account actual state of affairs, and thus, failed to assess amount of maintenance. Learned Family Appellate Judge found that granting of maintenance for Taka 250.00 and 150.00 to First and Second plaintiff respectively per month was not at all justified. Learned Family Appellate Judge made a study of prevailing market price and enhanced Taka 1000.00 and 500.00 as maintenance per month to First plaintiff and minor child Second plaintiff respectively. Judgment and decree is dated 13-10-1996.
8. Feeling dissatisfied First defendant as petitioner approached this Court in this Civil Revision petition and obtained present Rule.
9. Mr. Mohammad Ali Khan, learned Advocate appeared for the defendant-petitioner. Plaintiffs opposite parties are represented by Mr. Md Khurshid Alam Khan, learned Advocate.
10. In the wake of only contention pressed into service for and on behalf of defendant-petitioner that Family Appellate Court got no authority to enhance the amount of maintenance without any cross appeal or cross objection preferred by either side, the question which survives for determination in this Civil Revision petition is whether Family Appellate Judge traveled beyond his jurisdiction in enhancing the amount of maintenance of plaintiff and whether the decision of enhancement of amount of maintenance warrants any interference by this Court in the exercise of its Civil Revisional Authority under section 115 of the Code of Civil Procedure.
11. In approaching the question the appellate forum and power contained in the Family Court Ordinance, 1985 may profitably be noticed. Forum and Law relating to appeal is contained in section 17 of the said Ordinance of 1985.
12. Relevant provisions of section 17 of the Ordinance of 1985 are extracted hereunder:
(3) An appeal under this section shall be preferred within thirty days of the passing of the judgment, decree or order excluding the time required for obtaining copies thereof:
Provided that the Court of District Judge may, for sufficient cause, extend the said period.
(7) The District Judge may transfer an appeal to the Court of an Additional District Judge or a Subordinate Judge for hearing and disposal and may withdraw any such appeal from such Court.”
13. Section 17(1) enjoins that an appeal shall lie from a judgment, decree or order of Family Court to ‘the Court of the District Judge.’
14. Section 17(3) postulates that an appeal is to be presented within thirty days of the passing of the judgment, decree or order excluding the time required for obtaining copies thereof. District Judge as the appellate judge can extend the said period of thirty days.
15. Section 17(7) enshrines that a District Judge may transfer an appeal to the Court of an Additional District Judge or a Subordinate Judge for hearing and disposal.
16. The words ‘District Judge” are neither defined in The Family Courts Ordinance, 1985 nor in The Code of Civil Procedure. The words “District Judge” is defined in sub-section 15 of section 3 of the General Clauses Act, which runs, thus:
17. ‘District Judge’ means the ‘Judge of the principal Civil Court ‘of the District. The ‘District Judge’ as the ‘Family appellate Judge’ cannot be ascribed to be ‘Persona Designata’. ‘District Judge’ having been the ‘Principal Judge of the Civil Court’ of the District, the provisions of the Code of Civil Procedure is very much applicable to Family appellate proceeding before District Judge or the transferee Judges like Additional District Judge and Subordinate Judge.
18. Law and procedure relating to appeal before appellate Court and powers and functions of the appellate Court are embodied in section 107 and Order 41 of the Code of Civil Procedure.
19. Section 107 of the Code enjoins that subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power to additional evidence or to require determine a Case finally, to remand a Case, to frame issues and refer them for trial and to take such evidence to be taken.
20. Sub-section (2) of section 107 of the Code states that appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
21. Rule 33 of Order 41 provides that the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the Case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
22. On a plain reading of the above it becomes manifestly clear that the power conferred is of the widest amplitude to enable the Court to pass decree according to the Case. The language used is affirmative and the Rule is further strengthened by non obstante clauses giving the clear impression that the intention is beneficial so that no legal right should be denied which the appellate Court considers should be allowed within the framework of the suit. The Rule frees the Court from the tentacles of the procedural law and empowers it to do complete justice. Ends of law are justice and the paramount duty of the Court is to ensure and uphold the banner of justice.
23. In the Case in hand the decree with respect to the maintenance of First plaintiff, the wife of First defendant No. 1 and Second plaintiff the minor child born of the wedlock of First plaintiff and First defendant was before appellate Court, no matter whether the appeal was preferred by First defendant or not or whether any cross appeal or cross- objection was presented by First plaintiff. The non obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the Rule should itself have filed an appeal or a cross-objection. The mere fact of First plaintiffs not having preferred an appeal or a cross-appeal or cross-objection would not by itself be sufficient to justify refusal to exercise the power contained in Rule 33 of Order 41 of the Code of Civil Procedure. The question before me came up for consideration before the Supreme Court of Pakistan in the Case of Yousuf and Brothers Vs. Mirza Mohammad Mahdi Pooya and another reported in 16 DLR (SC) 619. The Supreme Court held relying upon good number of decisions the principle that in the absence of a counter appeal being filed a decree against another defendant cannot be given, not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be direct contravention of a clear provision in the rule. This question also came up for consideration before the Appellate Division of our Supreme Court in the Case of Md. Osman Gani Vs. Kulsum Bibi and others reported in 37 DLR (AD) 63. The Appellate Division in the said Case held:
24. Learned Family Judge awarded a part decree and fixed Taka 250.00 per month as maintenance for first plaintiff and Taka 150.00 per month for maintenance of minor child, second plaintiff. Learned Family appellate Judge in taking into account prevailing market price took the view that for maintenance of first plaintiff and as well as the minor child Second plaintiff, an amount of Taka 1000.00 and 500.00 be granted. The enhancement of that amount as maintenance by learned Family appellate Judge on modification of the decree of Family Judge with respect to maintenance car be said to be unreasonable. The said decision is well justified and well founded. No exception can be at all taken to the said decision. Learned Family appellate Judge did not travel beyond his jurisdiction in the decree in enhancing the amount of maintenance of the plaintiffs.
25. Learned appellate Judge, thus, does not appear to have committed any substantial error of law in the decision under challenge in Revision and no failure of justice appears to have been manifested and, as such, said decision does not warrant any interference by this Court in the exercise of Civil Revisional Authority under section 115 of the Code of Civil Procedure. The question posed, thus stands answered accordingly.
26. Resultantly, the inevitable conclusion that flows is that Rule arising out of Civil Revision Petition is without any merit and the same, thus, fails. Rule stands discharged. Judgment and decree recorded by learned appellate Judge stand maintained.
Order of stay granted in Civil Revision Petition stands vacated.
Send down the LCR as immediately as possible.