Ashish Gulati vs Smt. Anshu Gulati
2021 Latest Caselaw 3090 Chatt

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             HIGH COURT OF CHHATTISGARH, BILASPUR
                                    Order Sheet
                            W.P.(227) No. 609 of 2021
 Ashish Gulati S/o Late Shri N.L. Gulati Aged About 42 Years R/o 25, Sunder Nagar,
 Bhilai, District- Durg, Chhattisgarh.
                                                                                ---- Petitioner
                                        Versus

 Smt. Anshu Gulati W/o Ashish Gulati Aged About 38 Years Present Address- D-306,
 Sector- 05 Tagore Nagar, Raipur, Chhattisgarh.
                                                                            ---- Respondent

11/11/2021 Shri Siddharth Rathod, Advocate for the petitioner.

Shri Manoj Paranjpe, Advocate with Shri Bharat Sharma, Advocate for the respondent.

The respondent counsel has raised the objection regarding the maintainability of this petition under Article 227 of the Constitution of India.

It is submitted by counsel for the respondent that the petition has been brought against the impugned order, by which the application under Section 5 of the Limitation Act has been allowed. There is a provision for revision available against the impugned order under Section 115 of the Code of Civil procedure and also under Section 19(4) of the Family Courts Act.

Relying on the judgment of High Court of Telangana and Andhra Pradesh in the case of Gogireddy Eswara Reddy and Another vs. Tangirala Hanumayamma, reported in 2015(1) ALD 503 and on the judgment of Madhya Pradesh High Court in the case of Shaligram vs. Nagar Palika, Vidisha, reported in 2004(3) MPLJ 29, it is submitted that the High Court of Telangana and Andhra Pradesh both have expressed their

views that in case where the application under Section 5 of the Limitation Act for condonation of delay is allowed, the same can be challenged in revision only. Hence, this petition may be dismissed as not maintainable.

Learned counsel for the petitioner opposes the submissions and submits that the impugned order is an order of interlocutory nature. Section 19(1) of the Family Courts Act as well as Section 19(4) of the Act, 1984 very clearly exclude the appellate jurisdiction and revisional jurisdiction in the matter of interlocutory orders passed by the Family Court, therefore, there is no remedy available to the petitioner to file a revision petition.

Relying on the judgment of Supreme Court in the case of V.S. Shukla vs. State through CBI, reported in AIR 1980 SC 962, it is submitted that the Supreme Court held that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order, therefore, the order passed allowing the application under Section 5 of the Limitation Act is of interlocutory nature, as it does not determine the rights of the parties and the suit or the trial continues. It is further submitted that in the case of Praveen Bhutani vs. Usha Sethi and Others, reported in (2015) 2 AD (Delhi) 124, the Delhi High Court has held similarly that interlocutory order is not defined in the Court and the order passed on the application for condonation of delay is only an interlocutory order as it does not decide or touch the important rights or liabilities of the parties. The condonation of delay was allowed by the Court below in which the High Court of Delhi declined to interfere.

Reliance has also been placed on the orders of this Court in the case of Shekhar Chouhan vs. Geeta Devi in FAM No. 222 of 2019, in the case of V.C. Shukla vs. State through CBI, reported in (1980) AIR (SC) 962, in the case of Amar Pal Singh Broka and Ors. Vs. Ku. Amrit Kaur and Anr. in W.P.(227) No. 250 of 2020 and also in the case of Anil Mishra vs. Sakshi Mishra, reported in (2017) AIR (Chhattisgarh) 108, the Division

Bench of this Court referring to the judgment of Supreme Court in the case of Surya Dev Rai vs. Ram Chander Rai and Others, reported in (2003) 6 SCC 675, in which it was held that interlocutory orders can be challenged before the High Court under Articles 226 & 227 of the Constitution of India, therefore, the petition filed is maintainable.

In reply, it is submitted by counsel for the petitioner that the judgments cited by the respondent's side are directed on the point, therefore, the impugned order can be challenged only by way of preferring revision petition.

Heard counsel for both the parties and perused the documents present alongwith this petition.

In the present case, the petitioner had filed an application under Section 9 of the Hindu Marriage Act, 1955 against the respondent which was decreed ex parte. The respondent/ non-applicant filed an application under Order IX Rule 13 of the CPC before the Family Court alongwith the application under Section 5 of the Limitation Act praying for condonation of delay. The application for condonation of delay has been allowed and the application under Order IX Rule 13 of the CPC is pending.

In the case of Gogireddy Eswara Reddy and Another vs. Tangirala Hanumayamma, (supra) it was held that the order dismissing the application for condonation of delay terminates the whole proceedings, therefore, the same can be challenged in the revision petition. The question on this point has been answered by the Division Bench of the High Court of Telangana and Andhra Pradesh and the same is the view taken by the Madhya Pradesh High Court in the case of Shaligram vs. Nagar Palika (supra).

The submission of the petitioner counsel is that the order passed is in interlocutory nature needs consideration. The difference present in the instant case and in the cases cited by the respondent are that by the

impugned order in this case, the application under Section 5 of the Limitation Act was allowed, whereas, in the cases cited by the respondent, the application for condonation of delay was dismissed, therefore, it was held in the cases cited by the respondent that the revision shall be maintainable against the orders by which the condonation of delay application has been dismissed.

Taking into consideration the difference present in the present case, the prayer under Section 5 of the Limitation Act was allowed and therefore, the proceeding on the application filed by the respondent is continuing, therefore, the order allowing the condonation application has not finally decided the dispute present.

In the case of V.C. Shukla vs. State through CBI (supra), the Supreme Court held in paragraphs 29 & 30 is as follows:

'29. To sum up, the essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter. in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. Untwalia J. in the case of Madhu Limaye v. State of Maharashtra (supra) clearly meant to convey that an order framing charge is not an interlocutory order but is an intermediate order as defined in the passage, extracted above, in Corpus Juris Secundum, Vol. 60. We find ourselves in complete agreement with the observations made in Corpus Juris Secundum. It is obvious that an order framing of the charge being an intermediate order falls squarely with in the ordinary and natural meaning of the term 'interlocutory order'. as used in Section

11(1) of the Act. Wharton's Law Lexicon (14th Edition, p. 529) defines interlocutory order thus: "An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties."

30. Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one, which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Code or any other statute. 'That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in Section 11(1) of the Act. '

Further, in the case of Praveen Bhutani vs. Usha Sethi and Ors.

(supra), it was held that the revision shall not be maintainable against the order passed condoning the delay in any proceeding. Therefore, the case present is not akin to the cases cited by the respondent's side.

Looking to the continuity of the proceeding under Order IX Rule 13 of the CPC, after the application under Section 5 of the Limitation Act was allowed, therefore, the impugned order can be said to be an interlocutory

order, therefore, there is no remedy available to the petitioner under Section 19(4) of the Family Courts Act. Hence, in view of these discussions, I do not find any substance in the objection raised, which is overruled.

Also heard on application for grant of interim relief. Learned counsel for the respondent is granted time to file reply. List this case after four weeks.

In the meanwhile, it is ordered that the proceeding before the Court below pending under Order IX Rule 13 of the CPC shall remain stayed until the next date of hearing.

Sd/-

(Rajendra Chandra Singh Samant) Judge

Nimmi