# Chandra Srivastava, Kanpur v. State

- **Citation:** (2012) 1 ILRA 7
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-12
- **Bench:** Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-srivastava-kanpur-v-state-42256
- **Pages:** 3

## Headnote

Hindu Marriage Act, 1955-Section 28Appeal against judgment decree passed
under Section 13 of the Act-valuation of
appeal shown Rs. 10,000-appeal before
High Court-held not maintainable.

Held: Para 4 and 5

The
aforesaid
clearly
indicates
that
Section 28 of the Hindu Marriage Act
does not provide for appeal against
judgement. It provides for appeal only
against decree and since an appeal
under Section 19 of the Family Courts
Act lies only against a judgement or
order, no appeal would lie under Section
19 of the Family Courts Act against a
decree. An appeal against a decree
passed by the Civil Judge would lie under
Section 28 of the Hindu Marriage Act.

Since in the present case the impugned
judgement
and
decree
have
been
assailed under Section 28 of the Hindu
Marriage Act and the valuation of this
appeal is Rs. 10,000/-, the pecuniary
jurisdiction
as
well
as
appellate
jurisdiction would not be with the High
Court. An appeal against a decree passed
by the original Court under Section 13 of
the Hindu Marriage Act, would lie before
8 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the
court
of
competent
appellate
jurisdiction.
Case law discussed:
(2006 Alld. C.J. 1936)

## Text

1 All] Smt. Suman V. Brij Kishore
7

4. It is to be noted that this writ
petition was filed in the year 1994 and
this court while directing the respondents
to file counter affidavit also passed an adinterim order dated 3.1.1994 staying the
operation of the impugned order. It is
unfortunate that till date no counter
affidavit has been filed and as such
averments made in the writ petitioner
remained unrebutted.

5. It is not the case of the
respondents that the land in question was
under valued. For imposing liability for
payment of additional stamp duty, it
would be the duty of the respondents to
categorically show that there was some
concealment made by the petitioner at the
time of execution of the sale deed. On
mere presumption, stamp duty cannot be
imposed after valuing the constructions. It
is also pertinent to mention that a Full
Bench of this Court in Shri Ramesh
Chandra Srivastava, Kanpur vs. State
of
U.P.
and
others
[2007
All.C.J.718]held that the market value of
the property has to be determined with
reference to the date on which the
document is executed.

6. In view of the aforesaid
discussions, the impugned order dated
22.9.1993 is hereby set-aside. Consequent
to follow. However, it will be open for the
authorities to pass fresh order, if they so
desire after giving opportunity of hearing
to the petitioners.

7. The writ petition stands allowed
in above terms.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2012

BEFORE
THE HON'BLE SANJAY MISRA, J.

First Appeal No. - 13 of 2012

Smt. Suman

 ...Petitioner
Versus
Braj Kishore

 ...Respondent

Counsel for the Appellant:
Sri Atul Srivastava

Counsel for the Respondents:
.......................................

Hindu Marriage Act, 1955-Section 28Appeal against judgment decree passed
under Section 13 of the Act-valuation of
appeal shown Rs. 10,000-appeal before
High Court-held not maintainable.

Held: Para 4 and 5

The
aforesaid
clearly
indicates
that
Section 28 of the Hindu Marriage Act
does not provide for appeal against
judgement. It provides for appeal only
against decree and since an appeal
under Section 19 of the Family Courts
Act lies only against a judgement or
order, no appeal would lie under Section
19 of the Family Courts Act against a
decree. An appeal against a decree
passed by the Civil Judge would lie under
Section 28 of the Hindu Marriage Act.

Since in the present case the impugned
judgement
and
decree
have
been
assailed under Section 28 of the Hindu
Marriage Act and the valuation of this
appeal is Rs. 10,000/-, the pecuniary
jurisdiction
as
well
as
appellate
jurisdiction would not be with the High
Court. An appeal against a decree passed
by the original Court under Section 13 of
the Hindu Marriage Act, would lie before
8 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the
court
of
competent
appellate
jurisdiction.
Case law discussed:
(2006 Alld. C.J. 1936)

(Delivered by Hon'ble Sanjay Misra,J. )

1. This is an appeal under Section 28
of the Hindu Marriage Act 1955, against
the judgement and order dated 16.11.2011
and decree dated 30.11.2011 passed in
Case No. 774 of 2007, Brij Kishore vs.
Smt. Suman, by Additional Civil Judge
(Senior
Division),
Court
No.
2,
Bulandshahar.
Stamp
Reporter
has
reported
that
this
appeal
is
not
maintainable before this Court.

2. Learned counsel for the appellant
has submitted that the plaintiff respondent
had filed Original Suit No. 774 of 2007,
under Section 13 of the Hindu Marriage
Act, which has been decreed by the trial
Court. According to him, since the
proceedings were under Section 13 of the
Hindu Marriage Act, the appeal under
Section 19 of the Family Courts Act
would not be maintainable. However,
since it is a matrimonial dispute decided
by the Civil Judge in the absence of
establishment
of
Family
Court
in
Bulandshahar, the appeal would lie to the
High Court under Section 28 of the Hindu
Marriage Act, as is provided under
Section 19 of the Family Courts Act.

3. The question was considered by a
Full Bench of this Court in the case of
Kiran Bala Srivastava (Smt.) vs. Jai
Prakash Srivastava (2006 Alld. C.J.
1936). The Full Bench considered the
difference of an appeal under Section 19
(1) of the Family Courts Act, which
provided
for
an
appeal
against
a
judgement or order of the Family Court. It
also considered the provision of Section
28 of the Hindu Marriage Act, which
provides for an appeal against a decree or
order. It was held that Section 28 of the
Hindu Marriage Act does not provide for
appeal against a judgment, therefore, the
answer to the question referred to the Full
Bench as to whether an appeal under
Section 19 of the Family Courts Act
would lie against an order passed under
Section 24 of the Hindu Marriage Act was
given in affirmative since the order under
Section
24
granting
pendente
lite
maintenance is a judgment and an appeal
would therefore, lie under Section 19 (1)
of the Family Courts Act. Paragraph 21 of
the said judgement of the Full Bench is
quoted hereunder:

"21. What noticeable in sub-section
(1) of Section 19 of the Act of 1984, is
that deviating from Section 96 of the
Code of 1908 or from sub-section (1) of
Section 28 of the Act of 1955, it provides
for appeals against "judgment". The Code
of Civil Procedure, 1908, does not
provide for appeal against judgments. It
provides for appeals against decrees and
orders. Likewise Section 28 of the Act of
1955 also does not provide for appeals
against judgments. It provides for appeals
only against decrees [see: sub-section (1)]
and against certain orders [see: subsection (2)]. The question arises as to why
the legislature made a departure by
providing appeal against judgments also,
under sub-section (1) of Section 19 of the
Act of 1984. Not that the legislature was
not aware of the established practice or
did not know the meaning of the word
judgment, as given by the Apex Court in
Khimji's case (supra)."

4. The aforesaid clearly indicates
that Section 28 of the Hindu Marriage Act
does not provide for appeal against
1 All] Ravindra Kumar Singh and others V. State of U.P. and others
9
judgement. It provides for appeal only
against decree and since an appeal under
Section 19 of the Family Courts Act lies
only against a judgement or order, no
appeal would lie under Section 19 of the
Family Courts Act against a decree. An
appeal against a decree passed by the
Civil Judge would lie under Section 28 of
the Hindu Marriage Act.

5. Since in the present case the
impugned judgement and decree have
been assailed under Section 28 of the
Hindu Marriage Act and the valuation of
this appeal is Rs. 10,000/-, the pecuniary
jurisdiction
as
well
as
appellate
jurisdiction would not be with the High
Court. An appeal against a decree passed
by the original Court under Section 13 of
the Hindu Marriage Act, would lie before
the
court
of
competent
appellate
jurisdiction.

6. In view of the aforesaid
circumstances, the report of the Stamp
Reporter is accepted and it is upheld. This
appeal is not maintainable before the High
Court. The appellant may avail his
remedy under Section 28 of the Hindu
Marriage Act before the competent court
having
appellate
jurisdiction
against
decrees. The period, w.e.f. 16.11.2011
(the date when present appeal was
presented before the Stamp Reporter) to
12.01.2012 i.e. today, shall be given
benefit of for the purpose of limitation, in
case the appeal is filed under Section 28
of Hindu Marriage Act against a decree
by the appellant. This appeal is dismissed
as not maintainable before this Court.

7. No order is passed as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.01.2012

BEFORE
THE HON'BLE RITU RAJ AWASTHI,J.

Misc. Single No. - 84 of 2012

Ravindra Kumar Singh and others

 ...Petitioner
Versus
State of U.P. Thro Secy. Department of
Home and others
 ...Respondents

Counsel for the Petitioner:
Sri Vinay P.Singh Rathore

Counsel for the Respondent:
C.S.C.
Sri N.C.Mehrotra
Sri O.P. Srivastava.

Constitution
of
India,
Article
226General Direction to deposit Fire Arm
License
with
dealer-considering
Lok
Sabha or Vidhan Sabha election-without
considering individual role regarding
apprehensive of danger of violence-heldillegal-without being written order of
competent
authority-such
directionunsustainable.

Held: Para 10

"23.
Considering
the
facts
and
circumstances of the case these writ
petitions are disposed of with the
following directions:

(1)
A
writ
in
the
nature
of
Mandamus commanding the State of U.P.
is issued directing that the citizens who
have valid fire arm licenses including the
petitioners may not be compelled to
deposit their fire arms in general merely
on the basis that Lok Sabha Election is to
be held in near future.

(2) It is also directed that no
District
Magistrate
or
District