[ad_1]
Uttarakhand High Court
3 July vs Pankaj Jaiswal on 3 July, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:5678
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition Misc. Single No. 1725 of 2025
03 July, 2025
Ramesh Chandra Jaiswal & another. -Petitioner
Versus
Pankaj Jaiswal --Respondent
-------------------------------------------------------------------
Presence:-
Mr. Himanshu Pal, learned counsel for the petitioners.
Mr. Lalit Miglani, learned counsel for the respondent.
-------------------------------------------------------------------
JUDGMENT
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.
2. 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.
3. 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
1
2025:UHC:5678
passed by the Sub Divisional Magistrate.
4. 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.
5. Section 16 of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 reads as under:-
“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:
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:
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.
(2) On receipt of an appeal, the Appellate Tribunal shall,
cause a notice to be served upon the respondent.
(3) The Appellate Tribunal may call for the record of
proceedings from the Tribunal against whose order the
appeal is preferred.
(4) The Appellate Tribunal may, after examining the
appeal and the records called for either allow or reject the
appeal.
(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:
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.
(6)The Appellate Tribunal shall make an endeavour to
pronounce its order in writing within one month of the
receipt of an appeal.
(7)A copy of every order made under sub-section (5) shall
be sent to both the parties free of cost.”
6. The aforesaid Act is a self contained Code,
which confers certain rights to parents and senior
citizens. It provides for a separate forum for
2
2025:UHC:5678
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.
7. 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.
8. 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.
9. 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:-
“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
3
2025:UHC:5678as 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.
32. 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.”
10. 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:-
“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 whom4
2025:UHC:5678the 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.
9. 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.”
11. 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:-
“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).”
12. 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
5
2025:UHC:5678
and not merely a procedural right.
13. 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.
14. 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.
15. 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
6
2025:UHC:5678
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.
16. 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.
17. 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:-
“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.”
18. 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:-
7
2025:UHC:5678
“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.
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:
“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.
(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):
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.”
(emphasis supplied)
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.”
19. 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
8
2025:UHC:5678
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.
20. 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.
21. 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.
________________________
MANOJ KUMAR TIWARI, J.
Dt: 03.07.2025
Navin
NAVEEN
Digitally signed by NAVEEN CHANDRA
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH
COURT OF UTTARAKHAND,
2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006d
a82a131bb4e4403d3c0a15, postalCode=263001,
CHANDRA
st=UTTARAKHAND,
serialNumber=18167EEFB5CA8CFFD421A103819DA875643
AF56D653D095C6ED9A86DAAB21CE5, cn=NAVEEN
CHANDRA
Date: 2025.07.08 11:23:10 +05’30’
9
[ad_2]
Source link