Gujarat High Court
Rajan Ankleshwaria S/O ... vs Vinni Ankleshwaria D/O Mahesh ... on 6 September, 2023
Bench: Ashutosh Shastri
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3311 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/FIRST APPEAL NO. 3311 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAJAN ANKLESHWARIA S/O MANOJKUMAR BABULAL ANKLESHWARIYA
Versus
VINNI ANKLESHWARIA D/O MAHESH GULSHANRAI MALHOTRA W/O
RAJAN ANKLESHWARIA
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Appearance:
MR JAL UNWALA, SENIOR ADVOCATE with MS TEJAL A VASHI(2704) for
the Appellant(s) No. 1
MR NIRAV C THAKKAR for MR BHAVIN J SATWARA(3718) for the
Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 06/09/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
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1. By way of present First Appeal under Section 96 of the
Code of Civil Procedure and Section 19 of the Family Courts
Act, appellant- original applicant has challenged the validity of
an order dated 4.7.2023 passed below Exh.6 of Civil Misc.
Application No.4 of 2023 passed by learned Principal Family
Court at Anand.
2. The background of case which has given rise to present
appeal is that appellant and respondent got married on
19.1.2013 and on 19.1.2014, their marriage was solemnized as
per Hindu Customary Rites and Ceremonies at Anand and
during their wedlock, a son, named as Dhven, was born on
26.7.2018. According to appellant, during passage of time, some
difference of opinion generated between appellant and
respondent and according to appellant, respondent wife left the
matrimonial house on 26.10.2022 without any valid reason.
When the respondent left the house, their son was with
appellant husband at his residence at Ahmedabad and appellant
alone used to take care of all needs of the son and used to take
care of academic schedule and used to pick and drop the son
from school. Later on, some arrangement has taken place for
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dropping the son with respondent at her above-mentioned place
at Anand in the weekends, i.e. on Friday, Saturday and Sunday,
and pick him up on Sunday from Anand. Said arrangement was
continued and academic schedule of their son was also not got
disturbed. Minor son had a vacation in the school from
24.12.2022 till 2.1.2023 and as such respondent requested the
appellant to drop their son at Anand for whole vacation period
and keeping faith on respondent, appellant has dropped their
son at the residence of respondent wife at Anand. Thereafter, on
2.1.2023, appellant called the respondent informing about his
schedule to pick up their son, but respondent wife conveyed
that she will not return the son to reside with appellant and
thereafter having received such non-cooperative attitude,
appellant was constrained to prefer an application being Civil
Misc. Application No.4 of 2023 for seeking custody of their
minor son Dhven under Sections, 7, 17 and 25 of Guardians and
Wards Act, read with Section 13 of Hindu Minority and
Guardianship Act read with Section 7 of the Family Courts Act
and read with Order-XXXIX of Code of Civil Procedure and in
that proceedings, an application was submitted below Exh.6 for
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seeking interim and temporary injunction.
3. It is the case of the appellant that during pendency of the
main proceedings, i.e. Civil Misc. Application No.4 of 2023,
appellant received a notice on 4.3.2023 from the Family Court
at Anand informing that respondent wife has preferred Civil
Misc. Application No.1 of 2023 under Section 7 of the Guardians
and Wards Act. Said applications then were referred for
mediation on 4.3.2023 and later on, failure report was
submitted on 27.3.2023 since mediation remained unsuccessful
and matter came back in the Family Court. Subsequently, a joint
pursis at Exh.18 was preferred on 28.3.2023 in Civil Misc.
Application No.4 of 2023 indicating that minor son shall be with
wife from Monday to Friday and in the weekends, i.e. from
Saturday 5.00 p.m. to Sunday 6.00 p.m. minor son shall with
present appellant. Said arrangement was abided by both the
parties to the proceedings till hearing of interim and temporary
injunction application being Exh.6. It is the case of the appellant
that incidently, appellant has also filed an application under
Section 9 of the Hindu Marriage Act before the Family Court on
28.6.2023 which has not been processed further, but then while
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taking decision on 4.7.2023, learned Principal Family Judge,
according to appellant, has traveled beyond the scope of
application which has led the appellant to submit present First
Appeal for the reliefs which are set out in paragraph 6 of the
appeal. Operative part of the order passed below Exh.6 reads as
under:-
ORDER
(1) This application is partly allowed.
(2) The applicant father shall have visitation rights every
Sunday of each calendar month for 4 hours between 4
p.m to 8 p.m. at the convenient place at Anand.
(3) The opponent shall handover the custody of minor son to
the applicant during visiting hours and the applicant
shall return the custody of minor son to the opponent
after completion of visiting hours.
(4) The applicant shall pick up the minor at the residence of
the opponent where the minor is residing at 4 p.m. and
shall drop him back there after completion of visiting
hours at 8 p.m.
(5) Parties are directed not to act in a manner that law and
order should be breached during visiting hours.
Pronounced today on this 4th day of July, 2023 in the Open Court
at Anand.
4. In the background of aforesaid circumstance, appellant
has preferred this First Appeal and upon advance copy, learned
advocate Mr. Nirav C. Thakkar with Mr. Bhavin J. Sathwara has
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represented the respondent and upon request of learned
advocates, the matter is taken up for hearing on the preliminary
issue raised by the opponent about maintainability of present
First Appeal.
5. When the matter is taken up for hearing, learned advocate
Mr. Nirav C. Thakkar appearing on behalf of the respondent has
submitted that looking to the impugned order which has been
passed by the Court below, First Appeal in the present form is
not maintainable, at the best, appellant is required to prefer
either Civil Revision Application or Special Civil Application. It
has been submitted that by virtue of order impugned, essentially
the relief contained in Exh.6 is governed basically by Order-
XXXIX Rule 1 and 2 of Code of Civil Procedure since what has
been asked for is the interim and temporary injunction in which
prima facie, balance of convenience and irreparable loss aspects
are only to be considered. Whereas, entertaining First Appeal
under Section 96 of Code of Civil Procedure or under Section 19
of the Family Courts Act would be giving wide scope of
jurisdiction which is otherwise not available and since while
deciding Exh.6, yet evidence is not led by either parties,
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jurisdiction under Section 96 of Code of Civil Procedure or
under Section 19 of the Act is not amenable to the appellant.
Since order is interlocutory in nature, even taking provisions of
the Guardians and Wards Act also, relief such which has been
sought for by the appellant can be a subject matter of appeal
under Section 47 at the best and as such in no case, present
First Appeal under Section 96 of Code of Civil Procedure or
under Section 19 of the Act is maintainable. By drawing
attention to the relevant provisions of the Guardians and Wards
Act, namely Sections 7, 25 as well as 47, a contention is raised
that ex-facie, present appeal is not maintainable and impugned
order being interlocutory order, no appeal is competent. As a
result of this, learned advocate Mr. Thakkar has submitted that
at the threshold, since appeal is not maintainable, same may be
dismissed on this preliminary issue. To substantiate his
contention, learned advocate Mr. Thakkar has made a reference
to two decisions delivered by Delhi High Court, one in the case
of Colonel Ramesh Pal Singh v. Sughandhi Aggarwal delivered
in MAT.AP. (F.C.) 211/2017 & CM APPL. 44390/2017
pronounced on 1.10.2019 and another decision dated 13.9.2012
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delivered by Delhi High Court in case of Manish Aggarwal v.
Seema Aggarwal and Ors. [FAO No.388 of 2012: CM No.15667
of 2012 & CM NO.15668 of 2012]and by referring to these two
decisions and relevant observations contained in paragraphs 25
and 26 respectively, a contention is raised that present appeal is
not competent and as such same be dismissed.
6. It has further been contended that under the provisions of
the Guardians and Wards Act, 1890, a statutory provision is
specifically made as to which are the orders appealable and
Section 47 is clearly indicating that for the relief, which has
been sought for, of interim injunction in nature, such order is
not appealable, hence a request is made to dismiss the appeal
as not competent.
7. As against this, learned senior advocate Mr. Jal S. Unwala
appearing for appellant has vehemently contended that Section
19 of the Family Courts Act is wide enough covering any order
as appealable and as such impugned order which has been
passed is clearly appealable. It has been submitted that looking
to the relief which has been sought for in the application Exh.6
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and order passed thereupon, Section 47 would not have any
application and there is a clear distinction between interim
order and interlocutory order, hence has submitted that this
being not an interlocutory order, appeal would be maintainable.
According to Mr. Unwala, even if it is to be treated as
application for interim injunction, then order which has been
passed cannot be treated as interlocutory in nature, it can be
termed as interim order and that being the position, appeal is
competent. Mr. Unwala has made a reference of two decisions,
one by Coordinate Bench of this Court [judgment dated
1.5.2023 rendered in First Appeal No.1820 of 2023] and another
by Delhi High Court [order dated 22.10.2021 passed in MAT.
AAP. (FC) No.126 of 2019] and by making reference of both
these decisions, a contention is raised that preliminary objection
which has been raised about maintainability out-rightly deserves
to be rejected.
8. Learned senior advocate Mr. Unwala has submitted that
question was cropped up before Delhi High Court in almost in
identical situation about visitation right of a minor and High
Court of Delhi has taken a view that nature of order is to be
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seen; either to treat the same as interim or interlocutory order.
Any order which affects the rights and welfare of minor child
always to be treated as interim in nature and it cannot be
termed as interlocutory order, hence by referring to paragraphs
12 to 14 of the judgment of Delhi High Court (supra), a
contention is reiterated that preliminary issue deserves to be
discarded.
9. Additionally, learned senior advocate Mr. Unwala has
further submitted that Coordinate Bench of this Court in First
Appeal No.1820 of 2023 has also examined the issue relating to
interpretation of Section 19 of the Family Courts Act and has
submitted that any order which is passed by Family Court with
regard to dispute/ controversy/ action between the parties if
finally deciding rights and no further issue on such dispute
remains to be adjudicated, then such orders can be termed as
final orders and same are always appealable under Section 19 of
the Family Courts Act. Hence, interim injunction sought below
Exh.6 if to be construed in its proper perspective, same is to be
treated as interim in nature and not interlocutory order.
Accordingly, appeal is very much competent and same deserves
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to be adjudicated upon on merits. No other submissions have
been made.
10. Having heard learned advocates appearing for the parties
and having gone through the material on record, it appears that
main application which has been submitted being Civil Misc.
Application No.4 of 2023 is filed under Sections 7, 17 and 25 of
the Guardians and Wards Act, read with Section 13 of Hindu
Minority and Guardianship Act read with Section 7 of the Family
Courts Act and read with Order-XXXIX of Code of Civil
Procedure and relates to seeking injunction. Relief clause
contained in the said application is in paragraph-39 which reads
as under:-
(a) The Hon'ble Court be pleased to direct the Opponent to
return the custody of the minor son DHVEN to the
Applicant.
(b) The Hon'ble Court be pleased to declare that the Opponent
is not entitled to take the minor child outside the
jurisdiction of this Hon'ble Court without the permission of
the Applicant and this Hon'ble Court.
(c) The Hon'ble Court be pleased to permanently restraint the
Opponent from taking the minor son out of the jurisdiction
of this Hon'ble Court without the permission of this Hon'ble
Court.
(d) The Hon'ble Court be further pleased to grant such other
and further relief as may be just and proper in the facts and
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circumstances of the case, in favor of the Applicant and
against the Opponent.
11. During pendency of aforesaid main application, an
application seeking temporary injunction was moved at Exh.6 in
which after narrating the circumstance, prayers have been
made in paragraph-40 which reads as under:-
(a) Pending hearing and final disposal of the case the
Hon'ble Court be pleased to direct the Opponent to
return the custody of the minor son DHVEN to the
Applicant.
(b) Pending hearing and final disposal of the case Hon'ble
Court be pleased to temporarily restrain the Opponent
from taking the minor son out of the jurisdiction of this
Hon'ble Court without the permission of this Hon'ble
Court.
(c) Pending hearing and final disposal of the case the
Hon'ble Court be pleased to grant unlimited visitation
rights to the Applicant towards the minor son physically
and also virtually through video.
(d) The Hon'ble Court be further pleased to grant such other
and further relief as may be just and proper in 'the facts
and circumstances of the case, in favor of the Applicant
and against the Opponent.
12. Aforesaid prayer contained in Exh.6 had been dealt with
by order dated 4.7.2023 in which, as indicated above, while
allowing the application in part, visitation rights are prescribed
in the manner which is reflecting from the order. It is this order
which is made the subject matter of present First Appeal.
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13. Main issue raised before the Court is whether this order
dated 4.7.2023 is to be construed as interlocutory or interim
order and whether is amenable to Section 96 of Code of Civil
Procedure or Section 19 of the Family Courts Act to prefer First
Appeal and in this context, we have considered the submissions
of both the learned advocates.
14. Which orders are to be considered and treated as interim
or interlocutory is well propounded in series of decisions by
now. Here in this case, prayers which are made in the main
application are to the effect to return the custody of minor son
to the applicant and declare that opponent is not entitled to take
minor child outside the jurisdiction of the Hon'ble Court without
permission of the applicant and Hon'ble Court and also sought a
relief to permanently restrain the opponent from taking minor
child out of the jurisdiction of the Court without permission.
Whereas, in application at Exh.6, a prayer is made, as indicated
above, to direct the opponent to return the custody of minor son
to the applicant and pending that application, opponent be
temporarily restrained from taking minor son out of the
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jurisdiction of the Court and during pendency and final disposal
of the said application, relief is sought to grant unlimited
visitation right to the applicant of minor son. It is this relief
which is dealt with by learned Family Court and considering the
totality of circumstance, visitation rights have been extended to
the appellant for a particular period as already mentioned in
operative part which is stated herein-before. It appears that this
order which has been passed, impugned in the appeal, is not
finally deciding the issue in respect of visitation rights or
custody of child.
15. The meaning of an interlocutory order is that if 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. So, in the 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 or main application, which does not
however conclude the main controversy itself and as such, if
the term interlocutory order if interpreted in its logical and
natural sense, same would not decide finality of issue. Here in
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the case on hand, perusal of the relief of the main application
i.e. Civil Misc. Application No.4 of 2023 is clearly indicating that
same has been filed for return of the custody of minor and a
relief to declare that opponent is not entitled to take minor child
outside the jurisdiction and also sought a permanent relief to
restrain the opponent from taking the minor out of jurisdiction
of the Court, whereas interim prayer which has been made in an
application which is filed in the main application below Exh.6, is
to direct the opponent to return the custody of minor to the
applicant and temporarily restrain the opponent from taking the
minor outside the jurisdiction and as such while deciding the
application Exh.6, rights with regard to return of the custody
issue has not been finally decided and as such, by no stretch of
imagination it can be said that impugned order is not an
interlocutory order. To more amplify the above conclusion, to
treat the impugned order as interlocutory order, we have an
assistance of following decisions which we feel it necessary to
quote hereunder:-
(1) In the case of Vishal Kochar v. Pulkit Sahni and Another
reported in 2022 SCC OnLine Raj 3337, the Court has observed
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based upon the decision of Hon'ble the Apex Court reported in
AIR 1980 SC 962 and since some of the observations are very
relevant, we deem it proper to quote paragraph 7 hereunder:-
"7. Term 'Interlocutory Order' has not been defined in the Cr.P.C.
Hon'ble Apex Court in the case of V.C. Shukla vs State,
reported in AIR 1980 (SC) 962 , has given following
observation in para No.23 regarding the nature of
interlocutory order:-
"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 the 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 to resort to Criminal Procedure Code or any
other statute. 'That is to say, if we construe interlocutory order in
ordinary (4 of 13) [CRLR-462/2021] parlance it would indicate the
attributes, mentioned above, and this is what the term interlocutory
order means when used in s. 11(1) of the Act."
8. Further, in the case of Madhu Limaye vs State of
Maharashtra, reported in (1977) 4 SCC 551, the Hon'ble Apex
Court has made following observations with regard to the
criterion of interlocutory order:-
"Ordinarily and generally the expression 'interlocutory order' has
been understood and taken to mean as a converse of the term 'final
order'. In volume 22 of the third edition of Halsbury's Laws of
England at page 742, however, it has been stated in para 1606:-
"....... a judgment or order may be final for one purpose and
interlocutory for another, or final as to part and interlocutory as to
part. The meaning of two words must therefore be considered
separately in relation to the particular purpose for which it is
required.'
In para 1607 it is said:-
"In general a judgment or order which determines the principal
matter in question is termed "final".
"In para 1608 at pages 744 and 745 we find the words:-
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"An order which does not deal with the final rights of the parties,
but either (1) is made before judgment, and gives no final decision
on the matters in dispute, but is merely on a matter of procedure,
or (2) is made after judgment, and merely directs how the
declarations of right already given in the- final judgment are to be
worked out, is termed "interlocutory". An (5 of 13) [CRLR-462/2021]
interlocutory order, though not conclusive of the main dispute, may
be conclusive as to the subordinate matter with which it deals."
(2) Yet, in another decision of Hon'ble the Apex Court in the
case of Honnaiah T.H. v. State of Karnataka and others reported
in 2022 LiveLaw (SC) 672, observations contained in paragraph-
12 are relevant, which we deem it proper to quote hereunder:
"12 There would be a serious miscarriage of justice in the course
of the criminal trial if the statement were not to be marked as
an exhibit since that forms the basis of the registration of the
FIR. The order of the trial judge cannot in these
circumstances be treated as merely procedural or of an
interlocutory in nature since it has the potential to affect the
substantive course of the prosecution. The revisional
jurisdiction under Section 397 CrPC can be exercised where
the interest of public justice requires interference for
correction of manifest illegality or the prevention of gross
miscarriage of justice. 5 A court can exercise its revisional
jurisdiction against a final order of acquittal or conviction, or
an intermediate order not being interlocutory in nature. In the
decision in Amar Nath v State of Haryana, 6 this Court
explained the meaning of the term "interlocutory order" in
Section 397(2) CrPC. This Court held that the expression
"interlocutory order" denotes orders of a purely interim or
temporary nature which do not decide or touch upon the
important rights or liabilities of parties. Hence, any order
which substantially affects the right of the parties cannot be
said to be an "interlocutory order". Speaking for a two-Judge
Bench, Justice Murtaza Fazal Ali observed:
"6. [...] It seems to us that the term "interlocutory order" in Section
397(2) of the 1973 Code has been used in a restricted sense and not
in any broad or artistic sense. It merely denotes orders of a purely
interim or temporary nature which do not decide or touch the
important rights or the liabilities of the parties. Any order which
substantially affects the right of the accused, or decides certain
rights of the parties cannot be said to be an interlocutory order so
as to bar a revision to the High Court against that order, because
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that would be against the very object which formed the basis for
insertion of this particular provision in Section 397 of the 1973
Code. Thus, for instance, orders summoning witnesses, adjourning
cases, passing orders for bail, calling for reports and such other
steps in aid of the pending proceeding, may no doubt amount to
interlocutory orders against which no revision would lie under
Section 397(2) of the 1973 Code. But orders which are matters of
moment and which affect or adjudicate the rights of the accused or
a particular aspect of the trial cannot be said to be interlocutory
order so Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460;
Sheetala Prasad v Sri Kant, (2010) 2 SCC 190 6 (1977) 4 SCC 137
as to be outside the purview of the revisional jurisdiction of the
High Court."
Explaining the historical reason for the enactment of Section 397(2)
CrPC, this Court observed in Amar Nath (supra) that the wide
power of revision of the High Court is restricted as a matter of
prudence and not as a matter of law, to an order that "suffered from
any error of law or any legal infirmity causing injustice or prejudice
to the accused or was manifestly foolish or perverse." In KK Patel v
State of Gujarat,7 where a criminal revision was filed against an
order taking cognizance and issuing process, this Court followed
the view as expressed in Amar Nath (supra), and observed:
"11. [....] It is now well-nigh settled that in deciding whether an
order challenged is interlocutory or not as for Section 397(2) of the
Code, the sole test is not whether such order was passed during the
interim stage (vide Amar Nath v State of Haryana, Madhu Limaye v
State of Maharashtra, 8 VC Shukla v State,9 and Rajendra Kumar
Sitaram Pande v Uttam 10). The feasible test is whether upholding
the objections raised by a party, it would result in culminating the
proceedings, if so any order passed on such objections would not be
merely interlocutory in nature as envisaged in Section 397(2) of the
Code. In the present case, if the objection raised by the appellants
were upheld by the Court the entire prosecution proceedings would
have been terminated. Hence, as per the said standard, the order
was revisable."
16. From the aforesaid situation, we are of the clear opinion
that so long as the relief of seeking return of the child is not
finally decided by virtue of impugned order, same cannot be
said to be an interim order, but is merely an interlocutory order
since said impugned order is neither finally deciding the right of
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the applicant about custody nor terminating the main
application. Since that be the situation, it is not possible for us
to construe the impugned order as not an interlocutory order.
17. We may state that provisions of the Family Courts Act
have been brought for speedy settlement of family disputes and
thereby for enforcement of such rights looking to the need, for
speedy disposal of the disputes relating to marriage and family
affairs and for the matters connected therewith, a legislation in
the form of Family Courts Act, 1984 has been brought in.
Section 19 contained in Chapter-V deals with appeals and
revisions. Phraseology used in sub-section (1) of Section 19
provides that no appeal shall lie from any judgment or order
which is an interlocutory order. Provision of appeal under
Section 19 of the Act as such is stringent by incorporating non-
obstante clause therein. Even a revision against an interlocutory
order is barred by virtue of sub-section (4) of Action 19 and as
such when the legislature in its wisdom thought it fit to enact
Section 19 with a particular phrase and object to dispose of
matrimonial cases as expeditiously as possible, such clear and
unambiguous language cannot be ignored by the Court and
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literal words which are used in the very Section are not possible
to be interpreted in a different way, which may frustrate the
very object for which the provision is made and as such when
this statutory provision itself is clearly indicating in no
uncertain terms that appeal against an interlocutory order is
amenable, we are of the clear opinion that there is a substance
in the preliminary objection raised by learned advocate
appearing for the opponent.
18. In the light of the afore-mentioned discussion, when we
perused the decisions which have been cited by before us by
learned senior counsel Mr. Unwala to withstand the preliminary
objection, we noticed a clear distinction between the fact
situation than what is on hand of this Court in decision dated
1.5.2023 taken in First Appeal No.1820 of 2023. An overall
reading of the said judgment has emerged a situation where
right of the appellant wife seeking documents was closed
forever, leaving her with no other remedy and as such said
order in that case was treated as not interlocutory. The Court at
several places has clearly observed that text and tenor of the
order reveals that application below Exh.45 seeking documents
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has finally determined the rights of appellant as well as the
husband with regard to production of documents which would
have a direct bearing on the determination of quantum of
compensation for the appellant wife and her minor son and in
that fact situation, when order has foreclosed the rights of the
parties finally, the Coordinate Bench has come to a conclusion
that appeal cannot be said to be non-maintainable. Whereas,
here in this case, as discussed above, main application is also
for return of the custody of minor and interlocutory application
below Exh.6 has also contained a relief to return the custody
pending hearing of the main application and as such passing of
an order below Exh.6 in the case on hand can never be said to
be interim order but it is clearly an interlocutory order as is not
finallydeciding the right of relief contained in the main
application. Hence, judgment referred to by learned senior
counsel Mr. Unwala of Coordinate Bench dated 1.5.2023 passed
in First Appeal No.1820 of 2023 is of no assistance to the
appellant.
19. At this stage, we may observe that decision delivered by
the Coordinate bench is no-doubt binding but if the facts
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situation are altogether different and Court with above
observation has treated that order passed in that proceeding
was finally deciding the rights and hence in a different situation
prevailing on this case, we are unable to apply said observations
as a straitjacket formula without ignoring different facts
situation.
20. At this stage, we may quote the observations made by the
Hon'ble Apex Court on the issue of precedential value of an
order which would clearly support the conclusion which we
have arrived in the present case on hand, i.e. paragraph 64 of
the decision in the case of State of Madhya Pradesh Vs.
Narmada Bachao Andolan and Another reported in (2011)
7 SCC 639:-
"64. The Court should not place reliance upon a judgment
without discussing how the factual situation fits in with a
fact-situation of the decision on which reliance is placed, as
it has to be ascertained by analysing all the material facts
and the issues involved in the case and argued on both
sides. A judgment may not be followed in a given case if it
has some distinguishing features. A little difference in facts
or additional facts may make a lot of difference to the
precedential value of a decision. A judgment of the Court is
not to be read as a statute, as it is to be remembered that
judicial utterances have been made in setting of the facts of
a particular case. One additional or different fact may make
a world of difference between the conclusions in two cases.
Disposal of cases by blindly placing reliance upon a
decision is not proper. (Vide MCD v. Gurnam Kaur, Govt. of
Karnataka v. Gowramma and State of Haryana v. Dharam
Singh)"
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21. Additionally, the decision of Delhi High Court, which has
been pointed out by learned senior counsel Mr. Unwala is also
on a different fact situation and candidly, it has been submitted
that said order dated 22.10.2021 is referred to a Larger Bench
for further consideration of issue and it has been submitted that
no final order by Larger Bench is yet available. In that view of
the matter, we are not impressed by the submissions made by
learned senior counsel Mr. Unwala based upon said decision of
Delhi High Court, more particularly when aforesaid discussion
is clearly indicating that preliminary objection raised by learned
advocate Mr. Nirav C. Thakkar for the opponent is worthy of
acceptance. So far as other provisions which are taken in aid for
maintainability of the appeal, i.e. Section 96 of the Code of Civil
Procedure and provisions which are mentioned in the column
below cause title, same having not been so agitated or argued
and as such since in substance, impugned order is whether
appealable or not in view of Section 19 of the Family Courts Act,
we have dealt with the issue and as such when special law has
specifically prescribed a statutory provision, same deserves no
ignorance. Accordingly, keeping in view the aforesaid
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discussion, we are of the opinion that objection which has been
dealt with is sustainable.
22. Since we are disposing of the First Appeal only on
preliminary issue with regard to its maintainability, we desist
ourselves from expressing any opinion on merit with regard to
other contentions contained in the proceedings and we leave it
open for the appellant to agitate in an appropriate proceeding
permissible in law.
23. With aforesaid observations, we hereby DISMISS the First
Appeal as being not maintainable.
24. Since the main First Appeal is dismissed, Civil Application
does not survive for further consideration. Accordingly, same
also stands DISPOSED OF.
Sd/-
(ASHUTOSH SHASTRI, J)
Sd/-
(DIVYESH A. JOSHI,J)
OMKAR
