G. Prakash vs Yesoda

R. Basant, J.—The petitioner has come to this Court with this Writ Petition under Article 226 of the Constitution of India to assail Exhibit P6 order, which is one passed evidently under Order IX Rule 13 of the Code of Civil Procedure. By that order the prayer for setting aside an ex parte decree has been dismissed.

The respondent herein who is the mother-in-law of the

petitioner had filed O.P. No. 738/99 against the petitioner claiming return of gold ornaments and cash and for payment of maintenance for the daughter of the petitioner. In that Original Petition, an ex parte order was passed. The petitioner filed an application to set aside that ex parte order. Vide impugned order, the said request was turned down and the petition was dismissed.

The petitioner claims to be aggrieved by the impugned order, Exhibit P6. He wants to challenge that order. Instead of filing an appeal u/s 19(1) of the Family Courts Act, the petitioner has come to this Court with this petition under Article 226/227 of the Constitution of India.

Called upon to explain how such a Writ Petition is maintainable, when the petitioner has the statutory right of appeal u/s 19(1) of the Family Courts Act, the learned Counsel for the petitioner asserts that no appeal would be maintainable u/s 19(1) and hence the only avenue of challenge which the petitioner has, is under Article 226/227 of the Constitution of India.

The Counsel presses the point and we have hence given the Counsel a patient hearing. The Counsel relied on Sections 19(1) and 19(5) of the Family Courts Act. We extract Section 19(1) below.

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 the Section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.

(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.

(6) An appeal preferred under Sub-section (1) shall be heard by a Bench consisting of two or more Judges.

A simple reading of the statutory provisions clearly reveals that in respect of matters not covered under Sub-section (2) not withstanding anything contained in the CPC and the Code of Criminal Procedure, challenge must be by an appeal u/s 19(1). Of course, there is a rider that the order challenged should not be an interlocutory order. On the plain meaning of Section 19(1), we find it impossible to entertain any doubt or controversy. Section 19(5) makes it clear further that no revision or appeal shall lie to any court from any judgment, order or decree of a Family Court, except as stipulated above.

The legislative intention as reflected in the plain language of Section 19 is that only a final order would be appealable and against an interlocutory order no appeal or revision would lie.

The only question that survives is whether the impugned order is an interlocutory order as to take away the right of appeal u/s 19(1). Adopt any standards to judge an order - as to whether it is interlocutory or final, the conclusion appears to be inevitable that the impugned order under which proceedings before the court below have actually come to a grinding halt is not an interlocutory order. It is not an interlocutory order or an intermediate order, but is only a final order in the sense that the order puts to rest all proceedings before the court below. We are unable to understand how a doubt can be entertained as to whether the impugned order is an interlocutory order. It is undoubtedly, a non-interlocutory, final order.

We find no merit in the reliance placed in the decision reported in Radha v. Velayudhan 1994 (1) KLT 398. That was clearly a case of interlocutory order. Appeal was not maintainable u/s 19(1) and the court was concerned with the question whether a revision would lie against such an interlocutory order notwithstanding the stipulations of Sections 19(5). It was held that the order challenged in that case was an interlocutory order. No appeal is maintainable u/s 19(1) and no appeal or revision is maintainable u/s 19(1) also, it was held.

The decision reported in Abdul Jaleel v. Sahida 1997 (1) KLT 734 which the learned Counsel for the petitioner has fairly brought to the notice of the court lays to rest the last trace of doubt on this question. Like the order in that case the impugned order in the instant case must certainly be held to be a final order and hence appealable u/s 19(1) and consequently, in the wake of such an efficacious alternative remedy which the petitioner has, this Writ Petition under Article 226/227 of the Constitution of India must be held to be not maintainable.

In the result, this Writ Petition is dismissed. We may, however, hasten to observe that the dismissal of this Writ Petition will not in any way fetter the rights of the petitioner to challenge the impugned order in appropriate proceedings u/s 19. Return the certified copy of the order to the learned Counsel for the petitioner forth with.