Allahabad High Court
Upendra Singh vs Court No.Ist Addl.Prin.Judge ... on 7 December, 2022
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 6
Case :- MATTERS UNDER ARTICLE 227 No. - 30202 of 2021
Petitioner :- Upendra Singh
Respondent :- Court No.Ist Addl.Prin.Judge Family Court Kheri And Anr.
Counsel for Petitioner :- Vishnu Pratap Singh
Counsel for Respondent :- Samarth Saxena
Hon'ble Abdul Moin,J.
Heard Sri Syed Tamjit Ahmad, Advocate holding brief of Sri Vishnu Pratap Singh, learned counsel for the petitioner and Sri Samarth Saxena, learned counsel appearing for the respondents.
Instant petition has been filed under Article 227 of Constitution of India praying for setting aside the order dated 11.11.2021 passed by the Court of First Additional Principal Judge, Family Court, Kheri in Case No. 38 of 2017 Inre; Upendra Singh Vs. Archna Verma.
Vide order dated 11.11.2021, the learned Family Court has rejected the application for amendment which had been filed by the petitioner.
A preliminary objection has been raised by Sri Samarth Saxena, learned counsel appearing for the respondent that as the application for amendment has been rejected by the learned Family Court, the same would fall within the ambit of being a 'case decided' keeping in view the Full Bench judgment in the case of Rama Shanker Tiwari Vs. Mahadeo and Ors reported in 1968 (38) AWR 103 and thus considering Section 19 of the Family Court Act, 1984 (hereinafter referred to as "Act, 1984"), the petitioner has got a remedy of filing of an appeal as the impugned order would not fall within the ambit of being an interlocutory order.
In this regard, reliance has also been placed on the judgment of this Court in the case of Sudhanshu Gupta Vs. Komal Gupta reported in 2019 (5) AWC 4434.
Responding to that, Sri Syed Tamjit Ahmad, learned counsel for the petitioner argues that as the matter has been pending before this Court since last one year and has been pending before the learned Family Court since the year 2017 and it was only certain amendments which are required to be incorporated in the plaint which have been filed by the petitioner as such, it was in the fitness of the things that the said application should have been allowed by the learned Family Court which should not have been rejected on the ground of delay and thus the present petition would be maintainable. The other argument is that as this Court is exercising jurisdiction under Article 227 of Constitution of India as such, the petition would be maintainable.
Having heard the learned counsel appearing for the contesting parties and having perused the records what emerges is that the order under challenge dated 11.11.2021 is an order by which amendment application filed by the petitioner has been rejected.
Section 19 of the Act, 1984 provides that notwithstanding anything contained in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973 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.
The corollary to this case that an appeal has to be filed against every judgment or order not being an interlocutory order.
This Court in the case of Sudhanshu Gupta (supra) while considering the full bench judgment of this Court in the case of Rama Shanker Tiwari (supra) has clearly held that an application either allowing or refusing to allow an amendment would fall within the ambit of being a case decided. Consequently, once the order dated 11.11.2021 has been passed by the learned Family Court by which the amendment application has been rejected, the same would fall within the ambit of being a 'case decided' and as such, the petitioner has a statutory remedy of filing of an appeal against the said order under Section 19 of the Act, 1984. For the sake of convenience, the relevant paragraphs of the judgment of this Court in the case of Sudhanshu Gupta (supra) are reproduced below:-
"13. The Full Bench decision cited by counsel for the revisionist, namely Rama Shanker Tiwari Vs. Mahadeo and Ors., 1968 (38) AWR 103, holds that an order under Order 6 Rule 17 CPC, either allowing or refusing to allow an amendment, is a "case decided".
14. Although, this judgment has been relied upon by counsel for the revisionist to submit that the revision is maintainable, in my considered opinion, this judgment necessarily holds against the revisionist. Once it is accepted that an order rejecting an amendment application is a case decided, it necessarily follows that it is not an interlocutory order and is therefore, appealable under Section 19 of the Family Courts Act.
15. The revision is not maintainable also because sub-section 3 of Section 115 CPC as applicable in U.P. provides that the Superior Court shall not, under this section, vary or reverse any order made, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. Even if the order impugned is set-aside and the amendment application of the revisionist is allowed, the proceedings before the Family Court shall not stand finally disposed of.
16. Under the circumstances, the order impugned in this revision being a final order and not an interlocutory order, it is clearly appealable under Section 19 of the Family Courts Act and for this reason alone, the revision is necessarily not maintainable. This is so because no revision lies against an order which is appealable."
As regards, the argument raised by learned counsel for the petitioner that as this Court is exercising jurisdiction under Article 227 of Constitution of India consequently, despite statutory remedy of an appeal available to the petitioner under Section 19 of the Act, 1984, instant petition can be decided on merits, suffice it to say that it is settled proposition of law that where an alternative remedy is available then this Court while exercising jurisdiction under Article 227 of Constitution of India would not interfere with the matter. (See:- Matter Under Article 227 No. 2846 of 2022 Inre; Lucknow Development Authority Vs. Ganesh Shanker Tripathi). No judgment has been cited to indicate that the remedy of appeal is not available against the order by which amendment has been rejected by the learned family Court.
Keeping in view the aforesaid discussion, no case for interference is made. Accordingly, the petition is dismissed leaving it open to the petitioner to pursue other remedies that may be available to him against the order impugned.
Order Date :- 7.12.2022
Pachhere/-
