S. Ajay Kumar vs S. Krishna Veni

T. Ch. Surya Rao, J.—The revision petitioner assails the order dated 21st June, 1999 of the learned Judge, Family Court Secunderabad passed in LA. 307 of 1999 in O.S. 16 of 1997. The impugned order emanated on an application filed u/s 151, C.P.C. seeking a direction to separate two suits O.S. 16 of 1997 and O.S. 28 of 1997 and try them separately, the application having been necessitated in view of the earlier order passed by the Judge, Family Court ordering to club both the suits.

It is the contention of the learned Counsel for the revision petitioner that such an order passed by the Judge, Family Court is illegal and contrary to directions given by a Bench of this Court to try the suit O.S. 28 of 1997 day-to-day. Apart from the merits in the matter, the learned Counsel appearing for the respondent has taken an objection on the maintainability of the revision. The revision having been filed u/s 115 of C.P.C. is clearly barred under the provision of the Family Courts Act, 1984. Section 19 is the relevant provision. Sub-sections (4) and (5) are germane for consideration in the context of this case. Section 19 of the said Act insofar as relevant is extracted hereunder:

"Section 19:

(1), (2), (3), xxx xxx xxx

(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 and 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 so 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."

In no uncertain terms Sub-section (5) mandates that no appeal or revision shall lie to any Court from any judgment or order or decree of a Family Court.

It has been mentioned at this juncture by the learned Counsel for the petitioner that a revision had been filed earlier and a Bench of this Court heard that revision and passed appropriate orders directing the Judge of the Family Court to proceed with the trial day-to-day in O.S. 28 of 1997. Entertaining a revision by a Bench of this Court without deciding the ratio involved in it on the relevant point is of no consequence when we consider the maintainability of the revision on merits and that it cannot be a precedent. The learned Counsel for the petitioner has further contended that the power of the High Court conferred under Article 227 of the Constitution of India has not been taken away and it cannot be taken away by any statute, be it a legislation passed by a Parliament or the State Legislature. The said contention has every force and the powers of this Court under Article 227 cannot be doubted. The question is, whether this application filed u/s 115, C.P.C. is maintainable or not the petitioner has not chosen to file an appropriate petition to convert this application as revision under Article 227 of the Constitution under the doctrine ex debito justitiae. Having not chosen such course, this Court has no option except to consider this application on merits. In view of the clear legislative mandate under Sub-section (5) of Section 19 of Family Courts Act, 1984, this revision petition is not maintainable.

The learned. Counsel for the respondent while driving home the point canvassed by him about the maintainability of this revision, relied upon two judgments : one is that of the Full Bench of the Orissa High Court and the other is that of a Bench judgment of Allahabad High Court. In Swarna Prava Tripathy and Anr. v. Dibyasingha Tripathy and Anr. 1998 AIHC 4573 : (1999) DMC 316 , the Full Bench of the Orissa High Court held that :

"a revision u/s 115, C.P.C is not maintainable."

In Rakesh Kumar Shandilya v. Smt. Renu, II (1998) CLT 429 , the Division Bench of the Allahabad High Court has also taken the same view. Since the position is no more res integra and even clear and explicit in view of the provisions of Sub-section (5) of Section 19 of the Family Courts Act, 1984,1 am of the considered view that the present revision application is not maintainable as having been clearly barred by the said provisions.

This does not, however, preclude the petitioner from coming to this Court under appropriate provisions, if he is so advised, i.e. under Article 227 of the Constitution of India.

For the above reasons petition fails. The C.R.P. is dismissed. No costs.