ORDER
R.B. Misra, J.
1. Heard Mr. C. Chakraborty, learned Counsel for the petitioner. Also heard Mr. B. Debnath, learned Counsel for the opposite-party. At the request of the learned Counsel for the petitioner, in the facts and circumstances this petition is being disposed of at the admission stage itself.
2. The present Civil Revision Petition has been preferred under Article 227 of the Constitution of India against the order dated 24-1-2007 passed by the learned Judge, Family Court, Agartala, West Tripura in T.S. (Divorce) No. 228 of 2008 indicating that a title suit for divorce was to be presented in the form of the plaint and since the relief claimed through such petition is declaratory in nature, therefore, the court-fee of Rs. 20/- has to be paid under the Court Fees Act, 1870 (for short ‘Court Fees Act’).
3. The petitioner presented a petition, i.e. T.S. (Divorce) No. 228 of 2006, before learned Family Court on 18-5-2006 under Section 13(1)(1a) of the Hindu Marriage Act, 1955 (in short called Hindu Marriage ‘Act’) for dissolution of marriage between the parties by way of decree of divorce. While presenting the petition for divorce court-fee of an amount of Re. 1/- was affixed by the petitioner but the Sheristradar of the Family Court reported deficit of court-fee of Rupees 19/- on the petition presented by the petitioner.
4. Shri R. Chakraborty, learned advocate appointed as amicus curiae by learned Family Court assisted learned Family Court. Learned Family Court vide impugned order dated 24-1-2007 has observed that the legislature has used the word ‘petition’ in Section 13 of the ‘Act’ which is essentially a plaint. For obtaining a declaratory decree without consequential relief, court-fees of Rs. 20/- has to be paid on the petition and T.S. (Divorce) No. 228 of 2006 under Schedule II, Article 17(III) of the Tripura Court Fees Act. According to learned Family Court, a petition for divorce being plaint in nature and relief claimed in such petition being declaratory in nature shall have to be presented affixing court-fees of Rs. 20/- and as such the petitioner was directed to supply additional court-fee of Rs. 19/- within 31st January, 2007 and for that purpose the process was issued upon the opposite-party.
5. Being aggrieved, the petitioner has approached this Court preferring the present revision petition under Article 227 of the Constitution with a prayer to invoke the power of superintendence to cure the jurisdictional illegality and impropriety of the impugned order.
6. Learned Family Court in its impugned order has analyzed the aspects involved in the case as below:
According to Mitra’s Legal and Commercial Dictionary, 5th Edition, a petition is a formal written request made to a Judge or superior, a document embodying such a formal written request any petition and application mean the same thing AIR 1957 Mysore 44. And plaint is a document of plaintiff on which proceedings in a Court of law commences. In the Hindu Marriage Act the legislature has used the word petition in Section 13. In Section 24 of the said Act, the word application has been used. Section 24 is supplementary to Section 13 and other sections for obtaining substantive relief. According to the Section 19 of the Act, a petition under this Act shall have to be presented to the District Court within the local limits whose ordinary civil jurisdiction, the marriage was solemnized etc. So, in the light of the Section 19, application for obtaining a decree under Section 13 cannot be said to be an application as formal written request made to a Judge. Moreso, on an application under Section 13 making of a decree is mandatory as the application has to be decided formally on merit. As per CPC a decree means the formal expression of an adjudication, which conclusively determines the rights of parties with regard to all or any of the matters in controversy in the suit. Rather, an application under Section 24 of the Act is an application containing formal request to a Judge for giving some sort of relief during pendency of the suit. Because the intent and purpose of Section 24 is to offer reasonable opportunity to the applicant for taking active part in the adjudication of the petition which is preferred for obtaining substantive relief in the form of decree.
In a petition/application for obtaining a decree of divorce, Judicial separation, restitution of conjugal rights, divorce on mutual consent, the petitioner has to file the petition showing:
A) The name of the Court in which it is brought.
B) Name, description and residence of the petitioner.
C) Name, description and residence of the opposite party.
D) Whether the petitioner or opposite party is a minor or of unsound mind, a statement of that fact.
E) The facts constituting the cause of action.
F) The facts showing that the Court has jurisdiction.
And also the relief claimed. And basically, these are the ingredients of a plaint which has to be covered in an application or petition.
7. The Trial Court below interpreted the terms ‘Petition’ on the basis of dictionary meaning holding that a petition is a formal written request, made to a Judge or a Superior, a document embodying such a formal request petition and application mean the same thing.
8. Serial 1(c), 17(iii) and Serial 20 of Schedule II of the Court-fees Act, 1870 (Tripura) provide as under:
1. (c) Application or petition
xx xx xx
when presented to a Collector or
other officer making a settlement
of land revenue, or to the Chief
Commissioner relating to matters
connected with assessment of land
or the ascertainment of rights
thereto or interest therein, if
presented previous to the final
confirmation of such settlem-
ent; or One Rupee 17. Plaint or memorandum of appeal in each of the following suits: Fifteen rupees. (i) xxx xxx xxx (ii) xxx xxx xxx (iii) to obtain a declaratory decree where no consequential relief is prayed Twenty rupees. 20. Every petition under the Indian Divorce Act, 1869 (Act IV of 1869) except petitions under Section 44 of the same Act, and every memorandum of appeal under Section 55 of the same Act. Twenty rupees. 9. Serial 1(b), 17(iii), 17(vi), 20 and 21 of Schedule II of the Court-fees Act, 1870 (7 of 1870) provides as under: 1. (b) Application or petition. ... One rupee or when presented to Civil, Criminal or Revenue Court, or to a Collector, or any revenue officer having Jurisdiction equal or subordinate to a Collector, or to any Magistrate in his executive capacity, and not otherwise provided for by this Act. Serial 17. Plaint or memorandum of appeal in each of the follow- ing suit: (i) xxx xxx xxx (ii) xxx xxx xxx (iii) to obtain a declaratory decree where no consequential relief is prayed; ... Ten Rupees (iv) xxx xxx xxx (v) xxx xxx xxx (vi) every other suit where it is not possible to estimate at a money value the subject matter in dispute, and which is not otherw- ise provided for by this Act. xxx xxx Serial 20. Every petition under the Indian Divorce Act, 1869, except petitions under Section 44 of the same Act, and every memorandum of appeal under Section 55 of the same Act. ... Twenty rupees Serial 21. Plaint or memorandum of appeal under the Parsi Marriage and Divorce Act, 1865 (15 of 1865). 10. Appendix-12 of the Gauhati High Court Rules, prescribes The Family Courts (Gauhati High Court) Rules, 1989;" para 6 of such rules provides as below:
Institution of Proceedings.–All proceedings instituted before the Family Court will be by way of a petition. However, in respect of applications under Chapter IX of the Criminal Procedure Code the provisions of that Code shall apply.
11. Appendix 14 of the Gauhati High Court Rules has prescribed “The Hindu Marriage Rules, 1988 to regulate the procedure under “The Hindu Marriage Act, 1955” dealing in as many as 22 paragraphs. Relevant paragraphs of the Gauhati High Court Rules, relating to The Hindu Marriage Act Rules, 1988 are given as below:
1. to 3. xxx xxx
4. Petition.–(i) Every petition under the Act shall be accompanied by either certified extract from Hindu Marriage Register maintained as per Section 8 of the Act where the marriage is registered under the Act, or, in the absence of the same, an affidavit to the effect that the marriage was solemnized between the spouses under the Hindu rites and rituals.
(ii) Every petition for divorce on either of the grounds mentioned in Clauses (1) and (ii) of Sub-section (1) of Section 13 of the Act shall be supported by certificate copy of the decree of judicial separation or for restitution of conjugal rights as the case may be.
5. Initiation of proceedings.–All proceedings under the Act shall be initiated by petition viz.-
(i) Under Section 9 for restitution of conjugal rights.
(ii) Under Section 10(1) and (2) for Judicial separation and for rescinding a decree for judicial separation.
(iii) Under Sections 11 and 12 of the Act for nullifying a marriage.
(iv) Under Section 13 and Section 13(b) for a decree of divorce and for decree of divorce by mutual consent respectively.
(v) Under Section 14 for leave to present a petition for divorce before the expiration of one year from the date of marriage.
(vi) Under Section 26 for making, revoking, suspending or varying orders and provisions previously made with respect to the custody, maintenance and education of minor children belonging to the spouses to the proceeding.
Note–In case of (v) and (vi) the petitions should be supported by affidavit as per provision of Civil Procedure Code.
6. Petition by or against a person suffering from mental disorder.-
XXX XXX XXX XXX
7. Contents of petitions.–In addition to the particulars required under Order VII, Rule 1 of the Code and Section 20(1) of the Act, every petition for judicial separation, nullity of marriage and divorce under Sections 9 and 13 of the Act shall contain the following particulars:
(i) The place and date of marriage.
(ii) Whether the spouses were Hindus by religion at the time of the marriage and whether they continue to be so till the date of filing of the petition.
(iii) The name, status, domicile of the spouses before the marriage/after the marriage and at the time of presenting the petition.
(iv) The principal permanent address where the parties reside at the time of presenting the petition together with the addresses where they last resided together.
(v) The name of the children, of the marriage, if any, their sex and their dates of birth or ages, etc. etc.
xxx xxx xxx xxx
12. Order IV of the CPC deals with Institution of Suits as below:
1. Suit to be commenced by plaint.-
(1) Every suit shall be instituted by presenting a (plaint in duplicate to the Court) or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
((3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in Sub-rules (1) and (2)).
Order VI deals Pleading Generally
1. Pleading–“Pleading” shall mean plaint or written statement
Order VII of the CPC deals with plaint, which runs as under:
1. Particulars to be contained in plaint.–The plaint shall contain the following particulars:
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff,
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a setoff or relinquished a portion of his claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purpose of jurisdiction and of court-fees, so far as the case admits.
13. This Court may also consider the meaning of “application”, “petition” and “plaint” as provided in Black’s Law Dictionary, 6th Edn., 1990 as below:
Application. A putting to, placing before, preferring a request or petition to or before a person. The act of making a request for something. A petition. The use or disposition made of a thing. A bringing together, in order to ascertain some relation or establish some connection; as the application of a rule or principle to a case or fact. An appeal or petition, especially as written or presented; a putting to, placing before; preferring a request or petition to or before a person; the act of making a request for something. Sparacino v. Ferona, 9 III.App.2d 422, 133 NE 2d 753, 755. See also, Apply; Motion; Petition.
Petition. A written address, embodying an application or prayer from the person or persons preferring it, to the power, body or person to whom it is presented, for the exercise of his or their authority in the redress of some wrong, or the grant of some favour, privilege, or licence. A formal written request addressed to some Governmental authority. The right of the people to petition for redress of grievances is guaranteed by the First Amendment U.S. Constitution.
A written request to a board for action on some matter therein laid before it. Mc Killop v. County Bd of Ed. Of Sanborn County, 78 SD 587, 105 NW 2d 671, 675. For example, a formal paper filed with the NLRB seeking a secret ballot election among a certain group of employees (bargaining unit).
A formal written application to a Court requesting judicial action on a certain matter. A recital of facts which give rise to a cause of action. Mathews v. Simmons, Tex. Civ. App. 589 SW 2d 156, 159. An application made to a Court ex parte, or where there are no parties in opposition, praying for the exercise of the judicial powers of the Court in relation to some matter which is not the subject for a suit or action, or for authority to do some act which requires the sanction of the Court; as for the appointment of a guardian, for leave to sell trust property, etc. Formerly, in equity practice the original pleading was denominated a petition or bill. Today, in almost all jurisdictions, whether in law or equity, the initial pleading is a complaint.
Written request to the Court for an order after notice. Uniform probate Code, $$ 1-201 (31), 5-103 (15).
Plaint. In civil law, a complaint; a form of action, particularly one for setting aside a testament alleged to be invalid. This word is the English equivalent of the Latin “querela”.
In English practice, a private memorial tendered in open Court to the Judge, wherein the party injured sets forth his cause of action. A proceeding in inferior Courts by which an action is commenced without original writ. This mode of proceeding is commonly adopted in cases of replevin.
Meaning of “Application”, “Petition” and “Plaint” according to “English Dictionary (Britain)” are as follows:
“Application”
(a) The act of bringing something to bear; using it for a particular purpose
“He advocated the application of statistics to the problem.”;
“A novel application of electronics to medical diagnosis”.
(b) A verbal or written request for assistance or employment or admission to a school.
(c) The action of putting something into operation.
Petition
A formal message requesting something that is submitted to an authority.
Plaint
(a) A written statement of the grounds of complaint made to Court of law asking for the grievance to be redressed.
(b) A cry of sorrow and grief.
Meaning of “Application”, “Petition” and “Plaint” according to “The Law Lexicon” by P. Ramanatha Mamnatha Aiyer are as follows:
Application:
A petition to Court; a request to a judicial office; the act of making or preferring a request (Burrill: The use of disposition made of a thing, Bouvier; Black)
Howsoever liberally one may construe the word ‘application’ it is not possible to regard a written statement as an application if it does not contain any request. Prem Raj v. Ramcharan AIR 1974 SC 968, 978. (Limitation Act, 1908, Art. 182).
The word ‘application’ is synonymous with the term petition which means a written statement of material facts requesting the Court to grant the relief or remedy based on those facts, Philip v. Director of Enforcement AIR 1976 SC 1185, 1187/Criminal Procedure Code (1974), Section 482(2)(a).
Application. If an application could be understood in a generic sense as a prayer made to an authority for some relief to set aside an order of another Authority and such an application is under the Statute would amount to an Appeal, Karnataka Theatres Ltd. v. S. Venkatesan AIR 1996 Kant 18, 21 (Companies Act, 1956, Section 111).
Application for Execution of a Decree.
Application for execution of a decree includes application by an auction-purchaser for delivery of possession, Sahu Deoki Nandan v. Narendra Quwee AIR 1974 All 144, 146. (Limitation Act (36 of 1963), Section 15(1) & Article 134).
Application is entertained. Merely because an application made by an employed person is taken on file or numbered, it cannot be said that it has been legally entertained. If the application is dismissed on the ground that the subject-matter of the claim would not fall within the Act, it cannot be said that the application is entertained. Madras Provincial Type Foundary Worker’s Union v. Ramnalinga Mudaliar AIR 1957 Mad 68, 69 (Payment of Wages Act, 1936, Section 15(3)).
“Application in accordance with law”. The expression “Applying in accordance with law” in Article 182 of the Limitation Act, means applying to the Court to do something which either to be decree-holders’ direct knowledge of facts, or his presumed knowledge of law, it is incompetent to do. (Purna Chandra Mandal v. Radha Nath Dass, 33C.867 : 4 CLJ 141 (Mitra’s Limitation Act, Notes under Article 182).
If a person other than one entitled applies for execution or if the person entitled applies for execution in a mode and for a relief outside the decree, the application is ‘not in accordance with law. (Bando Krishna v. Narasinha 14 Bom LR 861 : 37 B 42 : 17 Ind Cas 210 (212) per Chandaurarkr, J.).
Petition.
A petition, in common phraseology, is a request in writing; and in legal language describes an application to a Court in writing in contradistinction to a motion which may be made by a word of mouth.
A petition is an application made in a summary way to the Court, based upon a written statement of the facts leading up to the relief sought, and differing in that respect from a motion.
Petition is a supplication made by an inferior to a superior, and especially to one having jurisdiction. It is also used for that remedy, which the subject hath to help a wrong done by the King, who hath a prerogative not to be sued by writ. (Tomlins Law Die).
A formal application in writing made to Court for judicial action for something that lies in its jurisdiction; a written application addressed to a superior, or to a person or body in authority, soliciting some favour, right or mercy or the redress of some wrong or grievance (Section 401(6), Cr. PC); 2. a document embodying formal written request (Or. 33, R. 8, CPC).
“Petition”-“Application”. Per Iqbal Ahmed C.J.–In ordinary parlance the words “petition” and “application” no doubt, cannot the same meaning, but when one finds that in the statute (Provincial Insolvency Act) the Legislature has, in different sections, used the one or the other word, the conclusion is irresistible that the Legislature intended to use the one word in a sense different from the other 1942 ALJ 592 : AIR 1942 All 429 (FB).
The expression ‘petition’ means original petition filed for any of the substantive reliefs awardable under Sections 9 to 13-B, Shyamali v. Ashin Kumar . (Hindu Marriage Act (25 of 1955), Section 19).
Plaint.
A “Plaint” is the process by which proceedings in the Courts, are, generally commenced.
The statement in writing of a course of action in which the relief claimed is set out in detail (Order 6, Rule 1, CPC and Section 7(iv)(f), Court-fees Act).
A plaint in a Court is in the nature of an original writ. The first process in Court is a plaint.
Plaint means a statement in writing of the cause of action in a suit. S.T. Corporation of India v. Ironside Ltd. . (Bombay High Court Original Side Rules, Rr. 151-155).
Plaint or Memorandum of appeal. The words the plaint or memorandum of appeal’, as used in Col. 3 of Art. 5 mean the plaint of memorandum of appeal which has given rise to the judgment under review and not any other plaint or memorandum of appeal. Narayan Tiwari v. Vasudev Narayan Missir (Court Fees Act, 1870, Article 5).
The meaning of Application, Petition and Plaint according to Words and Phrases are given below:
Application.
In general–A motion is an “application” to the Court, and mere filing of a paper in the clerk’s office is not such an “application”, People v. Brickey 178 N.E. 483, 484, 345 III. 273.
Application for extension of time in which to file petition for certiorari to review judgment of Court of Appeals does not require notice to adverse counsel, not “application” within Court rule requiring notice. Code 19325 10629; Rules of the Supreme Court, Rules 11, 26. Woerner v. O’ Neal Commission Co. 89 SW 2d 162, 163, 169 Tenn 468.
Petition.
In general–A “petition” is a formal written request, made to some official or body having authority to grant it. State exc rel. Jackson v. School Dist. No. 2, 34P 2d 102, 104, 140 Kan 171.
A “petition” is a formal written request or prayer for a certain thing to be done, the signers of which attach their signatures voluntarily Davis v. Henderson 104 SW 1009, 127 Ky 13.
“Petition” meant an “appeal”, a “prayer” or a “request” to act, and did not mean a particular form diagram or definition. Tex O-Kan Flour Mills v. U.S. D.C. Tex., 49 F Supp 516, 520.
Plaint
A plaint in an inferior Court is in the nature of an original writ. The first process in an inferior Court is a plaint. Lilly, Abr. Tit. “Plaint”, See also, Jacob’s Law Dict. “Plaint”, Shaw v. Dutcher, N.Y. 19 Wend 216, 219.
14. In AIR 1958 Andhra Pradesh 340 in Re Hyderabad Court-fees Act it was held by the Andhra Pradesh High Court (Division Bench) that in Hyderabad State, Sub-Courts were abolished some time back and the present City Civil Court to some extent takes its place. But the practice seems to be that the City Civil Court has been treated as one of the Courts contemplated by Article 1 of Schedule II of Hyadrabad Court-fees Act. Therefore, correct court-fee payable on the application made under Sections 9 and 13 of the Hindu Marriage Act is Re. 1/- under Schedule II, Article 1 of the Hyderabad Court Fees Act.
15. In (Srikant Chand v. Mt. Ram Mohini). the Patna High Court (Division Bench) has held that the court-fee on an application under Section 13(1) of the Hindu Marriage Act, 1955, for the dissolution of marriage is not otherwise provided for by the Court-fees Act. There is also no scope for importing the words ‘plaint’ and ‘suit’ in Section 13, which only used the word “application”. Therefore an application under Section 13 of the Hindu Marriage Act requires to be stamped as a mere petition under Article 1 (b) and not as a ‘plaint’ under Article 17(vi) of Schedule II of the Court-fees Act.”
16. In the case of (Smt. Shyamal Sarkar v. Ashim Kumar Sarkar) , the High Court of Calcutta has observed in paragraph 4 of the said judgment as below:
The Hindu Marriage Act has provided for four substantive reliefs like restitution of conjugal rights, judicial separation, nullity of marriage and divorce and in Sections 9, 10, 11, 12, 13, 13A, 13B& 14 where it has provided for those substantive reliefs, it has also provided that the mode to invoke reliefs under these sections would be by way of petition. But in Sections 24 and 25, where the Act has provided for proceeding for pendente lite and also permanent alimony, which can be initiated only as consequential to another original proceeding for any of the substantive reliefs under Sections 9 to 14, it has provided that the mode to involve those sections for such consequential reliefs would be by way of application. In Section 14 itself while in Sub-section (1), word ‘petition’ has been used with reference to substantive proceeding for dissolution of marriage, in the proviso to Sub-section (1) and in Sub-section (2) the word ‘application’ has been used to provide for the mode to initiate the incidental proceeding to obtain permission of the Court to present the (sic) petition for dissolution of (sic) before the expiry of one year since the date of marriage. Now, when in respect of the same subject-matter, namely, matrimonial reliefs, different words like ‘application’ and ‘petition’ have been used in the same statute, then there may very well be a presumption that the legislature, which is ordinarily presumed to use words precisely and not indiscriminately, has used the two different words to mean different things. When two different words are used in the same statute, it may be presumed that those words, even if otherwise analogous, have been used with different connotations. Applying these rules of interpretation, it may be held that the expression “petition” in Section 19 of the Hindu Marriage Act would mean original petition filed for any of the substantive relief award-able under Sections 9 to 13B of the Act and would not cover application under Sections 24 and 25 which can be filed only during the pendency or on the termination of a substantive proceeding under Sections (9) to (13B), as something incidental or consequential to such proceeding.
17. Order VII, Rule 1 prescribes what a plaint should contain, but no section or order or Rule of CPG prescribes as to what a petition should contain. On the other hand, CPC does not say that the ingredients required for plaint are the ingredients for petition. Therefore, a petition is completely different from the plaint.
18. The Hindu Marriage Act or the Special Marriage Act is the special statute enacted for special purpose and special jurisdiction has been prescribed for adjudicating the dispute on matrimonial matters. The legislature has deliberately used the word “petition” in Hindu Marriage Act and in Special Marriage Act, instead of the word ‘Plaint’, as it is the natural presumption that every word in every special statute is chosen by the Legislature after a good deal of deliberation and there is always an object in using every word in the special statute. Therefore all the proceedings under ‘Act’ or special statute shall be regulated as far as may be in consonance to the provisions of Code of Civil Procedure in the light of the provision of Section 21 of ‘Act’ subject to the rules framed by the Gauhati High Court Rules. For convenience Section 21 of ‘Act’ is reproduced herein below:
Section 21. Application of Act 5 of 1908 : Subject to the other provisions contained in the Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.
19. As per the statutory provisions of ‘Act’, all the matrimonial proceedings, including a divorce proceeding commences on the presentation of a petition bearing a distinct character, but the CPC provides that a suit commences on presentation of a plaint. A matrimonial proceeding, though described as a suit for practical purposes, is different from a suit within the meaning of CPC.
20. A pro forma of matrimonial petition as prescribed in the Act must contain some mandatory statements, such as, there is no collusion or connivance between the parties with respect to the subject-matter of the petition etc. but the CPC does not provide for any such statutory requirement while presenting a plaint for a suit and this is the basic different between a petition in a matrimonial proceeding and a plaint in a suit of CPC. Therefore, a petition for a divorce, in no way, is a plaint in nature as the learned trial Court has decided.
21. Section 9 of the Hindu Marriage Act, 1955 deals with restitution of conjugal rights, Section 10 deals with judicial separation, Section 11 deals with void marriages Section 12 deals with voidable marriages, Section 13 deals with divorce, Section 13A deals with alternate relief in divorce proceedings, Section 13B deals with divorce by mutual consent, Section 14 deals with no petition for divorce to be presented within one year of marriage, Section 19 deals with Court to which petition shall be presented, Section 20 deals with contents and verification of petitions, Section 21 deals with application of Act 5 of 1908, Section 23 deals with decree in proceeding, Section 24 deals with maintenance pendente lite and expenses of proceedings, Section 25 deals with permanent alimony and maintenance, Section 26 deals with custody of children. In all these sections, namely 9, 10, 11, 12, 13, 13A, 13B, 19, 20, 20(2), 23A of the Act legislature has specifically specified the word “petition” whereas, in Section 14(1) of the Act word prescribes is petition and proviso to Section 14(1) of the ‘Act’ has prescribed the word “upon application”. Sections 24, 25 and 26 of the ‘Act’ had prescribed the word “application”. It is pertinent to note that Section 10(2) of ‘Act’ takes cognizance on the application by petition of either party. Likewise Section 26 of ‘Act’ has prescribed to take cognizance upon application by petition.
22. The Hindu Marriage Act provides for preparation of decree for special purposes which is not a decree within the meaning of Section 2 (2) of the Code of Civil Procedure; Section 21 of the ‘Act’, provides that procedure of CPC is applicable in regulating all the proceeding in the ‘Act’ subject to other provisions of the ‘Act’ and to such rules as the High Court may make in this behalf. Decree under the Hindu Marriage Act and Decree under the CPC therefore, are not of the same in nature and character. For example, a decree passed under Section 10 of the ‘Act’ may be rescinded by the Trial Court itself on the application by petition of either party on being satisfied of the truth of the statements made in the petition if it considers just and reasonable to do so’. But, a decree passed under the CPC can, in no circumstances, be rescinded, altered, cancelled or modified by the Trial Court; such a decree may be rescinded or changed only by the Higher Court. Therefore, interpretation regarding the meaning of a decree under the ‘Act’ as made by learned Family Court in the impugned order is not legally sustainable.
23. The decision of learned Family Court that the relief claimed in a divorce petition is declaratory in nature is apparently erroneous. As a declaratory suit contains no consequential relief, therefore, decree passed in a declaratory suit is not enforceable. A decree is enforceable if there is any consequential relief in such decree. But without any separate prayer for consequential relief, any decree or order passed under the ‘Act’ bears consequential relief. As Section 28-A of ‘Act’ itself provides that:
28A: Enforcement of decrees and orders:
All decrees and orders made by the Court in any proceeding under this Act shall be enforced in the like manner as the decree and orders of the Court made in the exercise of its original civil jurisdiction for the time being are enforced.
24. Therefore, the ‘Act’ itself provides that a decree of divorce can be enforced in the like manner as a decree or order made under the provision of CPC is enforced and separate prayer for consequential relief is not necessary to be made and as such the view of learned Family Court that a petition for divorce is declaratory in nature, is erroneous.
25. The learned Family Court directed to pay Rs. 20/- for divorce petition under the ‘Act’, as according to it, divorce petition is declaratory in nature and Article 17 (111) under Schedule II of the Court-fees Act, 1870 (Tripura) is applicable. But it is categorically shown in the above paragraph that a divorce petition is never declaratory in nature, rather it has consequential relief and so is enforceable by the ‘Act’ itself. So, Article 17(III) under Schedule II of the Court-fees Act, 1870 (Tripura) is, in no way, applicable and as such court-fee for divorce petition cannot be Rs. 20/-.
26. If the decision of the learned Family Court that court-fee payable in a divorce petition under the ‘Act’ is Rs. 20/- as per Article 17(III) of Schedule II of the Court-fees Act, 1870 (Tripura) is to be accepted, then it is also to be accepted that a divorce petition is declaratory in nature and therefore not enforceable under law, such proposition and view of learned Family Court may be ridiculous as it may indicate that a decree of divorce passed by a competent Court for law as non-enforceable which a Court of law cannot permit, being contrary to the provision of Section 28-A of the ‘Act’.
In view of the foregoing analysis the impugned order dated 24-1-2007, passed by the learned Family Court, Agartala is legally not sustainable.
27. The view taken by learned Family Court that word “petition” and “application” carry the same meaning and/or are same In Act relying on the decision of Nanjappa v. Vimala Devi AIR 1957 Mysore 44 is incorrect as the High Court has used the inter-changeability of the word, “petition” and “application” in respect of consideration of the respective stand of the parties in the interlocutory application and High Court in Nanjappa (supra) has not held that both “petition” and “application” are same and as such, the view of Family Court is erroneous.
28. It appears the legislature has used different words, e.g. petition and application for the appropriate purpose at different places in different sections of the Act. Somewhere the legislature have used “upon application by petition”. A simple plain language and the word used in a statute has to be understood in the general form, for the purpose the legislature has used it. In my respectful consideration the word “petition” as well as “application” cannot be same and these are different as has been prescribed by the legislature in the ‘Act’. When the language of section is very clear, it has to be given natural meaning. Different words used by the legislature in different sections of a statute or Act are different and cannot be ignored and these different words are to be given their natural meaning as from reading the plain language of the ‘Act’ no other view can possibly be taken.
29. The Supreme Court in the case of Promoters & Builders Assocn. of Pune v. Pune Municipal Corpn has observed as below:
11. …In Union of India v. Hansoli Devi it has been held that it is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the Court must give effect to the words used in the statute and it would not be open to the Court to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and the policy of the Act. In Nathi Devi v. Radha Devi Gupta it was emphasized that it is well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the legislature. The Courts always presume that the legislature inserted every part of a statute for a purpose and the legislative intention is that every part of the statute should have effect. In Ganga Prasad Verma (Dr.) v. State of Bihar 1995 Supp (1) SCC 192 it has been held that where the language of the Act is clear and explicit, the Court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature….
30. It is cardinal rule of construction that no word should be construed redundant or surplus in interpreting the provision of a statute or rule Ref : Dinesh Chandra Sangma v. State of Assam . The Apex Court in State of Maharashtra v. Santosh Shanker Acharya has held that it is too well known principle of construction of statute that the legislature engrafted every part of the statute for a purpose. The legislative intention is that every part of the statute should be given effect. Legislature is deemed not to waste its words or to say anything in vain and a construction, which attributes redundancy to the legislature, will not be accepted except for compelling reasons.
31. The Apex Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd. held that it is the basic principle of construction of statute that statutory enactment must ordinarily be construed according to their plain meaning and no words should be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute. Paras 24, 25 and 26 of the Bhavnagar University (supra) reads as follows:
24. True meaning of a provision of law has to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law.
25. Scope of legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable, or totally irreconcilable with the rest of the statute.
26. It is also well settled that a beneficent provision of legislature must be liberally construed so as to fulfill the statutory purpose and not to frustrate it.
32. The Court-fees Act, 1870 (Tripura) prescribes no court-fee for divorce petition under the ‘Act’. For a divorce proceeding, Section 13 of the ‘Act’ indicates the term ‘petition’ not ‘plaint’. Nowhere in the entire Hindu Marriage Act, the term ‘Plaint’ is used. Everywhere the term either ‘petition’ or ‘application’ is used. Therefore, neither there is scope to deny the term ‘petition’ used in the Act itself nor describe a petition for divorce under the ‘Act’ as a ‘Plaint’ and as such Court Fee of Re. 1/- prescribed for petition in Article 1(c) of Schedule II of the Court-fees Act, 1870 (Tripura) is payable also for petition for divorce under the ‘Act’.
33. Article 20 of the Court-fees Act, 1870 (Tripura) prescribed Court Fee of Rs. 20/-for “every petition under the Indian Divorce Act, 1869 (Act IV of 1860) except petition under Section 44 of the same Act and every Memorandum of Appeal under Section 55 of the same Act”. But, the Court-fees Act, is also silent about the court-fee to be paid on the petition under the ‘Act’ and the Special Marriage Act, 1971; so Re. 1/- shall be the court-fee for every petition including divorce petition under the ‘Act’, as per the Court-fees Act, 1870 (Tripura).
34. Undoubtedly the legislature has not used ‘plaint’ anywhere in the ‘Act’ however at some places in different sections of ‘Act’ legislature has prescribed words “petition” and “application”. No doubt these words in common parlance appear synonymous or connote similar meaning but when legislature has, at its wisdom chosen these two different words–one special statute e.g. Hindu Marriage Act herein, in different sections by using one or the other word, the conclusion is irresistible that the legislature intended to use the one word in a sense different from the other. The use of word “petition” and “application” in different sections of ‘Act’ is plain and unambiguous then the Court must give effect to these words used in the “Act” presuming that the legislature inserted every part of a Statute for a specific purpose with an intention that every part of the statute should have effect, then it would not be open to the Court to adopt hypothetical construction on the presumption that such construction is more relevant, or consistent with the alleged object and the policy of the ‘Act’.
35. I have heard learned Counsel for the petitioner and I have perused the records and also gone through the relevant provisions of law and I find that though divorce has been sought for by presenting a Title Suit (Divorce) No. 228 of 2006 before learned Family Court which is nothing but petition and such petition cannot be termed as a plaint or application, since a specific provision and entry has been made for affixing the court-fee under the Court-fees Act, 1870 i.e. to affix court-fee of Re. 1/- on the petition then there cannot be court-fee of Rs. 20/- which is required to be affixed on the plaint. The serial 17(iii) or 17(vi) of serial 20 of the Schedule II of the Court-fees Act 1870 is not applicable in the present case whereas, court-fee of Re. 1 /- may be said to be paid in reference to serial 1 (b) of Schedule II of Court-fees Act, 1870. But when there is Court-fees Act, 1870 (Act 7 of 1870) for Tripura where serial 17(iii) and serial 20 is not applicable as there is no separate prescribed fee for title suit (divorce) to be presented by way of petition under Hindu Marriage Act. Therefore, court-fee of Re. 1/- on the petition of the petitioner is to be said under serial 1(c) Schedule II of the Court-fees Act, 1870 (Tripura) as prescribed for the petition. The view taken by the learned Family Court in the impugned order is incorrect and shall tantamount jurisdictional illegality, impropriety, therefore, the order dated 24-1-2007 passed by the learned Family Court, Agartala, West Tripura in T.S. (Divorce) No. 228 of 2006 is set aside in view of the above observations, therefore, the petition shall have to be treated as duly presented and accordingly process shall have to be issued in the opposite party and T.S. (Divorce) No. 228 of 2006 shall have to be adjudicated on its merits by learned Family Court expeditiously in accordance with law.
36. The Civil Revision Petition is accordingly allowed.