Bombay High Court
Dr. Mrs. Sarika Akshay Ranade C/O. ... vs Dr. Akshay Arun Ranade C/O. Shri. ... on 22 June, 2021
Bench: R.D. Dhanuka, Virendrasingh Gyansingh Bisht
bdp
1
5-rpmst-10583.21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (ST) NO. 10583 OF 2021
IN
FAMILY COURT APPEAL NO. 122 OF 2019
Dr. Mrs. Sarika Akshay Ranade ... Petitioner
Versus
Dr. Akshay Arun Ranade ... Respondent
******
Mr. A. D. Sarwate for the Petitioner in Review Petition.
Mr. Omkar Paranjape for the Respondent.
******
CORAM: R. D. DHANUKA AND
V. G. BISHT, JJ.
DATE : 22nd JUNE, 2021.
(Through Video Conference)
P.C. :-
. By this Review Petition, the review petitioner (original
appellant) seeks recall of the judgment dated 7 th April, 2021 delivered
by this Court in Family Court Appeal No. 122 of 2019 thereby
dismissing the said Appeal filed by the Review Petitioner on the
ground of maintainability.
2. Learned counsel for the review petitioner submits that the
application for amendment made by his client was the final relief and
could not have been considered as an application for interim relief and
thus an appeal against the said order is maintainable under Section 19
of the Family Court Act.
bdp
5-rpmst-10583.21.doc
3. The review is sought by the review petitioner on the ground that
there are mistakes in the judgment delivered by this Court. There is an
error apparent on the face of record. This Court has not considered the
judgment of this Court referred and relied upon by the review
petitioner in review petition. There are no sufficient reasons.
4. In support of these grounds, learned counsel for the review
petitioner invited our attention to the paragraphs 31 to 34 of the
judgment. It is submitted that though this Court has rightly held that
against the order passed below Exh. 285 under Section 24 of the Act no
appeal was maintainable, in paragraph 33 of the judgment, this Court
has held that only order passed under Section 25 or 26 of the Act not
being an interlocutory order shall be assailable under sub-section(2).
He invited our attention to the cause title of the application filed by his
client at page no. 52 and would submit that in the said application filed
by his client was not only under Section 24 but was also under Sections
25 and 26 of the Act and thus this Court could not have taken a view
that application was only under Section 24 of the Act.
5. The next submission of the learned counsel for the review
petitioner is that no reasons are recorded by this Court on the issue
whether an application made by the review petitioner for maintenance
was an interim application or not. No finding is recorded by this Court
in that regard in the entire judgment.
6. Learned counsel for the review petitioner invited our attention to
the judgment delivered by this Court on 26 th February, 2021 in Family
bdp
5-rpmst-10583.21.doc
Court Appeal No. 31 of 2020 filed by Dr. Sandip Mrinmoy
Chakrabarty v/s. Mr. Reshita Sandip Chakrabarty and would submit
that in the said judgment, this Court has clearly held that appeal was
maintainable though certain interim orders passed by the Family Court
were impugned therein before this Court. He submits that though the
said judgment was delivered on 26th February, 2021, this Court in the
judgment delivered on 7th April, 2021 in the Family Court Appeal No.
122 of 2019 did not consider the said earlier judgment.
7. Mr. Paranjape, learned counsel for the respondent invited our
attention to the averments made in paragraph 8 of the review petition
and would submit that even according to the review petitioner, orders
passed by the Family Court below Exh. 77, 285, 391 and 403 were
impugned in the said Family Court Appeal. These orders passed by the
Family Court were in respect of the interim reliefs sought by the
review petitioner and not any final reliefs.
8. Learned counsel invited our attention to paragraphs 32 and 34 of
the judgment in question and would submit that after construing
Section 28 and after considering the nature of reliefs sought by the
review petitioner before the Family Court, which was subject matter of
the Family Court Appeal, this Court has rightly held that no appeal
wold lie to High Court under Section 19 against interim orders passed
under Section 24, 25 or 26. He submits that this Court rightly held that
reliefs sought by the review petition were interlocutory in the nature
and not final reliefs.
bdp
5-rpmst-10583.21.doc
9. Learned counsel for the respondents invited our attention to the
said application annexed at page 52 of the review petitioner, which was
filed by the review petitioner and would submit that the said
application was made in the main petition filed by the respondent. No
such reliefs were sought by the review petitioner by filing counter
claim. This Court has recorded detailed reasons in the impugned
judgment.
10. Learned counsel for the respondent distinguished the judgment
delivered by this Court on 26th February, 2021 on the ground that the
facts before this Court in the said judgment were totally different.
11. A perusal of the application filed by the review petitioner clearly
indicates that the said application was filed in the main proceedings
filed by the respondent against the review petitioner. No final reliefs
were sought by the review petitioner by filing any counter claim in the
said main proceedings filed by the respondent. The reliefs sought in
the said interim application also clearly indicates that all the relief were
of interim nature and were not the final reliefs. Merely, because the
review petitioner has referred to Sections 25 and 26 of the Hindu
Marriage Act in the said application, that would not be sufficient and
conclusive to say that the reliefs sought in the said application were of
final in nature and not interlocutory. This Court has to ascertain the
nature of reliefs by considering the prayers sought in the application.
This Court has already recorded finding in the judgment under
consideration that the reliefs sought by the review petitioner were
interim in nature and not of final nature.
bdp
5-rpmst-10583.21.doc
12. Insofar as the submission of the learned counsel for the review
petitioner that this Court has not recorded reasons while dealing with
some of the issue in the judgment is concerned that could not be a
ground to recall the judgment under Order 47 Rule 1 of the Code of
Civil Procedure.
13. Insofar the submission that this Court ought to have considered
the judgment which is now sought to be relied upon in case of Dr.
Sandip Mrinmoy Chakrabarty (supra) is concerned, though learned
counsel for the petitioner who had appeared in that matter, the said
judgment was not brought to the notice of this Court. Be that as it may,
a perusal of the said judgment clearly indicates that the respondent wife
in the said appeal had filed two separate proceedings one under the
Domestic Violence Act before the learned Judicial Magistrate First
Class, Pune and another proceeding by way of Divorce Petition before
the Family Court. The husband had filed a petition under Section 24 of
the Code Civil Procedure for clubbing of both the proceedings. This
Court clubbed both the proceedings and directed the Family Court to
dispose of both the proceedings. When the Family Court passed a
common order in both the proceedings, the husband filed an appeal
against the common order. The wife had raised an issue of
maintainability of the said appeal. After considering the prayers in
both the proceedings, this Court had recorded a finding that none of the
reliefs were falling under Section 31 or 33 nor were granted by Family
Court. All the reliefs sought by the respondents therein granted by the
Family Court under the provision of Sections 19 to 22 of the Domestic
bdp
5-rpmst-10583.21.doc
Violence Act were of the civil nature. This Court accordingly held that
the moment both the proceedings were clubbed by judicial order and
directed to be tried together, the jurisdiction of the Family Court
became abundantly clear over the proceedings under the Domestic
Violence Act. Resultantly, the order passed in the proceedings became
the order passed by the learned Judge of the Family Court for all
purposes and thus appeal was maintainable. The facts before this Court
in the said judgment were totally different.
14. In this case, the review petitioner filed an application in the
petition for restitution of conjugal rights against the review petitioner.
This Court has accordingly held that none of the reliefs sought by the
review petitioner in those 4 applications were of final nature and were
not appealable under Section 19 of the Family Court Act. No ground is
made out for recall of the said judgment dated 7 th April, 2021. Review
Petition is thoroughly misconceived and is accordingly dismissed. No
order as to costs.
[V. G. BISHT, J.] [R. D. DHANUKA, J.]
