Smt. Boby Devi vs Kiran Pal Singh

R.R. Yadav and Y.R. Tripathi, JJ.—The present appeal is filed u/s 19 of the Family Courts Act against the order dated 14.5.2002 passed by Family Court, Meerut, whereby the family court has rejected the application of the Appellant moved under Order IX, Rule 13, Code of CPC read with Section 151, C.P.C.

When the aforesaid appeal was presented in the registry, the office has raised an objection to its maintainability in view of Section 19(5) of the Family Courts Act.

The learned Counsel for the Appellant, Sri K. M. Garg contended that the present appeal is maintainable within the meaning of Section 19 of the Family Courts Act and the office report deserves to be overruled.

We have given our thoughtful consideration to the argument raised by Sri Garg. learned Counsel for Appellant and we are of the opinion that there is substance in the argument raised by the learned Counsel for Appellant. The office report deserves to be overruled for the reasons given hereinbelow.

A close scrutiny of Section 10 of Family Courts Act clearly provides that subject to the other provisions of this Act and the Rules, the provisions of Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973, before a family court and for the purposes of the said provisions of the Code, family court shall be deemed to be a civil court and shall have all the powers of such Court.

It is evident from perusal of Section 10 of Family Courts Act that provisions of CPC are applicable to the proceedings before the family courts. It would be pertinent to observe here that provisions encoded in CPC are based on principle of natural justice and fair play, hence all the provisions of CPC are made applicable to the proceedings before family courts within the meaning of Section 10 of the Family Courts Act. It is true that right to file an appeal is creation of a Statute, therefore, the controversy involved in the present case deserves to be examined with reference to statutory provisions.

Once it is found that all the provisions of Code of CPC are applicable to the proceedings before family courts and the family courts are to act as a civil court, then by corollary of reasons an appeal against the order impugned dated 14.5.2002 is maintainable within the meaning of Clause (i) of Sub-section (1) of Section 104 of Code of CPC read with Sub-rule (d) of Rule 1 of Order XLIII which provides that an appeal shall lie against an order rejecting an application moved under Order IX, Rule 13, Code of CPC to set aside a decree passed ex parte. It is held that if a suit filed u/s 9 of the Hindu Marriage Act for restitution of conjugal right is decreed ex parte by family court, then aggrieved party is entitled to move an application to recall such ex parte decree. Since in the present case, family court has rejected the application moved under Order IX, Rule 13, Code of CPC and declined to recall ex parte decree, therefore, in such a situation against rejection of application moved under Order IX, Rule 13, C.P.C., an appeal is maintainable within the meaning of Clause (i) of Sub-section (1) of Section 104, Code of CPC read with Sub-rule (d) of Rule 1 of Order XLIII which provides that an appeal shall lie against an order rejecting an application moved under Order IX, Rule 13, Code of CPC to set aside a decree passed ex parte.

There is yet another reason to arrive at the aforesaid conclusion. Sub-section (1) of Section 19 of the Family Courts Act, 1984, provides that save as provided in Sub-section (2) and notwithstanding anything contained in the Code of CPC or in the Code of Criminal Procedure 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.

From bare reading of Sub-section (1) of Section 19 of the Family Courts Act, it is crystal clear that an appeal is maintainable against every judgment or order passed by a family court provided it is not an interlocutory order. As a matter of fact, an appeal is prohibited against interlocutory order and consent decree or order passed by family courts.

Now the next core question which is to be determined relating to maintainability of the instant F.A.F.O. would be what is correct interpretation of expression ''interlocutory order'' used under Sub-section (1) of Section 19 of Family Courts Act. It is submitted by the learned Counsel for the Appellant that generally the expression ''interlocutory order'' is taken to mean as a converse of the term ''final order''. In support of his aforesaid contention, he placed reliance on a decision rendered by Apex Court in the case of Madhu Limaye Vs. The State of Maharashtra,

In our considered opinion, the connotation ''interlocutory order'' used under Sub-section (1) of Section 19 of Family Courts Act means if family court in exercising its power passed an order in a way allowing further action to continue in a suit or proceeding before it, then such order would be termed as ''interlocutory order'' but on the other hand, if by an order passed by family court the lis between the parties is finally stood disposed of and nothing is left to be decided further, such orders would be termed as ''final order'' and would be appealable under Sub-section (1) of Section 19 of said Act.

Our aforesaid view is buttressed from the decision rendered by Supreme Court in the case of Madhu Limaye (supra). The relevant paragraph 14 of the aforesaid decision is quoted hereinbelow for ready reference which reads thus :

In passing, for the sake of explaining ourselves, we may refer to what has been said by Kania, C.J. in AIR 1949 1 (Federal Court) , by quoting a few words from Sir George Lowndes in the case of AIR 1933 58 (Privy Council) . The learned Law Lord said with reference to the ordered under consideration in that case :

The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decided an important and even, a vital issue in the case, but it left the suit alive, and provided for its trial in the ordinary way.

Many a time a question arose in India as to what is the exact meaning of the phrase "case decided" occurring in Section 115 of the Code of Civil Procedure. Some High Courts had taken the view that it meant the final order passed on final determination of the action. Many others had, however, opined that even interlocutory orders were covered by the said term. This Court struck a mean and it did not approve of either of the two extreme lines. In Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, , it has been pointed out (at P. 410) :

A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy.

In view of what we have discussed hereinabove, office report is hereby overruled and it is held that the present appeal is maintainable. A copy of the order passed today be placed before Stamp Reporter to avoid inconvenience to the Bar on the aforesaid issue in future.

Heard the learned Counsel for the Appellant on merits at admission stage.

Admit.

Issue notice.

Meanwhile the execution and implementation of the ex parte decree dated 3.5.2001 passed by Family Court in Case No. 604 of 2000 between the parties shall remain stayed till further order of this Court.

After dictation of judgment the members of the Bar present in Court made a request to make the judgment reportable. The request is allowed and judgment is made reportable.