Madras High Court
S.Senthilkumar vs Suseela on 3 February, 2021
C.M.A. No.2398 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 03.02.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.A. No.2398 of 2018
S.Senthilkumar ... Appellant
-vs-
Suseela ... Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 19 of Family
Court Act against the order and decretal order dated 10.01.2018
passed in H.M.O.P. No.32 of 2017 on the file of the Subordinate Judge,
Gingee.
For Appellant : Mr.R.Thanjan
For Respondent : Mr.Ravindran Rangarajan
JUDGMENT
This appeal has been directed against the judgment and decree
dated 10.01.2018 passed by the Subordinate Judge, Gingee in
H.M.O.P. No.32 of 2017 wherein the prayer for granting divorce was
dismissed.
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C.M.A. No.2398 of 2018
2.Learned counsel appearing for the appellant submitted that the
appellant and the respondent got married on 15.02.2013 at Gingee
Town as per Hindu rights and customs and thereafter, the appellant
filed H.M.O.P. No.32 of 2017 on the file of the Sub Court, Gingee
seeking divorce. Aggrieved by the impugned judgment and decree the
appellant has filed this Appeal before this Court.
3.It is seen from records that during the pendency, the
respondent wife has filed a memo dated 01.02.2021 raising a
preliminary objection on the maintainability of the appeal stating that
as against the decree passed by the Sub Judge, Gingee, the statutory
appeal remedy would be available to the parties concerned under
Section 28 of the Hindu Marriage Act, 1955 only before the District
Court of the concerned jurisdiction, hence the appellant has no right to
file an Appeal before this Court under Section 19 of the Family Courts
Act, 1984. It is useful to refer Section 28 of the Hindu Marriage Act,
1955 and Section 19 of the Family Courts Act, 1984 as under:
'19.Appeal-
(1)Save as provided in sub-section (2) and
notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908) or in the Code of Criminal
Procedure, 1973 (2 of 1974) or in any other law, an appeal
shall lie from every judgment or order, not being an
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C.M.A. No.2398 of 2018
interlocutory order, of a Family Court to the High Court
both on facts and on law...'
28.Appeals from decrees and orders – (1)All decrees made
by the Court in any proceeding under this Act shall, subject
to the provisions of sub-section (3), be appealable as
decrees of the Court made in the exercise of its original
civil jurisdiction, and every such appeal shall lie to the
Court to which appeals ordinarily lie from the decisions of
the Court given in the exercise of its original civil
jurisdiction.
(2)Orders made by the Court in any proceeding under this
Act under section 25 or section 26 shall, subject to the
provisions of sub-section (3), be appealable if they are not
interim orders, and every such appeal shall lie to the Court
to which appeals ordinarily lie from the decisions of the
Court given in exercise of its original civil jurisdiction.
(3)There shall be no appeal under this Section on the
subject of costs only.
(4)Every appeal under this Section shall be preferred within
a period of ninety days from the date of the decree or
order.'
4.In the present case, the appellant husband has filed the above
H.M.O.P. No.32 of 2017 before the Sub Court, Gingee and the same
was dismissed on 10.01.2018 by the Sub Court, Gingee. Since the
appeal remedy would be available to the parties concerned under
Section 28 of the Hindu Marriage Act, 1955 only before the District
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C.M.A. No.2398 of 2018
Court of the concerned jurisdiction, the appellant cannot file this
Appeal before this Court under Section 19 of the Family Courts Act,
1984.
5.A careful reading of Section 28 of the Hindu Marriage Act
dealing with the appeals from decrees and orders passed by the
original civil jurisdiction clearly shows that all decrees made by the
Court in any proceeding under this Act shall be appealable, to which
the appeals ordinarily lie from the decisions of the Court given in the
exercise of its original civil jurisdiction, except on the subject of costs.
In the instant case, the Sub-Court, Gingee, has dismissed the divorce
petition, therefore, the appeal provisions under Section 28 of the Act
will govern the situation and thus, we are of the considered view that
the appeal will lie only before the District Court as against the
judgment and decree passed by the Sub-Court.
6.At this juncture, learned counsel appearing for the appellant
requested this Court to transfer the matter to the District Court,
Villupuram, since the respondent already remained exparte before the
Trial Court and there has been a delay in view of wrongly choosing this
Court as an Appellate Court instead of the District Court, otherwise,
the appellant would be put to face huge prejudice.
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C.M.A. No.2398 of 2018
7.In this regard, it is also relevant to extract Section 24 of the
C.P.C.
'24.General power of transfer and withdrawal – (1) On the
application of any of the parties and after notice to the
parties and after hearing such of them as desire to be
heard, or of its own motion without such notice, the High
Court or the District Court may at any stage -
(a)transfer any suit, appeal or other proceeding
pending before it for trial or disposal to any Court
subordinate to it and competent to try or dispose of
the same,or
(b)withdraw any suit, appeal or other proceeding pending
in any Court subordinate to it, and
(i)try or dispose of the same; or
(ii)transfer the same for trial or disposal to any Court
subordinate to it and competent to try or dispose of the
same; or
(iii)re-transfer the same for trial or disposal to the Court
from which it was withdrawn.'
8.A careful perusal of the above Section undoubtedly shows that
the High Court has got ample powers and jurisdiction to transfer the
proceedings from the Family Court to a Subordinate Court since the
same is comprehensive and discretionary. Therefore, the power of
transfer of the High Court cannot be whittled down or taken away.
More particularly, in the matrimonial proceedings, when the parties are
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C.M.A. No.2398 of 2018
already having mental as well as physical cruelty and untold hardships
at the instance of other party, if for any reason, any poor counsel, who
is not conversant with provisions of law, instead of filing appeal before
the competent Appellate Court, erroneously files appeal before any
other Appellate Court, the High Court has enormous power to do
justice without causing more prejudice to the parties.
9.An argument was advanced by the learned counsel for the
respondent that the matter may be directed to be re-presented by
taking away the same from this registry. If the said contention is
accepted, then the power of High Court under Section 24 of CPC will
be crippled. Since the same would cause un-necessary hardships to
the parties and also to the Courts, we do not agree for such argument.
The reason being that Section 24(1)(a) clearly shows that on an
application made by one party, the High Court or the District Court
may transfer any suit or Appeal or other proceedings pending before it
for trial or disposal to any court Subordinate to it and competent to try
or dispose of the same or even withdraw any suit, appeal or other
proceedings pending in any Court Subordinate to it. Therefore, when
objection has been raised by the respondent that after an order is
passed by the Subordinate Court, Gingee under Section 19 of the
Family Courts Act 1984, appeal remedy is available to the persons
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C.M.A. No.2398 of 2018
concerned under Section 28 of the Hindu Marriage Act, 1955 only
before the District Court of the concerned jurisdiction, we are of the
considered view that the Appellant has to file appeal under Section 28
of the Hindu Marriage Act 1955 only before the District Court,
Villupuram and he cannot maintain any Appeal under Section 19 of the
Family Court Act 1984 because this Court has no jurisdiction to
entertain the present Appeal against the decree passed by the Sub
Court, Gingee as the District Court, Villupuram is the Appellate Court
under Section 28 of the Hindu Marriage Act.
10.As the learned counsel appearing for the appellant has
wrongly chosen this Court instead of choosing the District Court, for
the fault on the part of the counsel, no litigant shall be put to
prejudice. The Hon'ble Apex Court in Rafiq and others vs. Munshilal
and Others reported in (1981) 2 SCC 788 has held that due to the
inaction, deliberate omission or misdemeanor of the counsel, parties
should not be put to suffer. In yet another decision in Hetram
Kashinath Shende vs. Sangeetha reported in
MANU/MH/1713/2012, the Bombay High Court (Nagpur Bench) has
held that the innocent litigant should not suffer for the mistake either
deliberate or intentional on the part of the advocate.
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C.M.A. No.2398 of 2018
11.Taking note of the fact that the appeal has been filed within
the statutory limit, accepting the legal position that no litigant shall be
put to face any prejudice, this Court is inclined to transfer the appeal,
accordingly, exercising power under Section 24 (1)(a) of the Code of
Civil Procedure, this appeal stands transferred to the District Court,
Villupuram for expeditious disposal, on merits. On such transfer,
learned District Judge, Villupuram is directed to take up the matter and
dispose of the same on merits and in accordance with law as
expeditiously as possible.
12.In fine, for the reasons stated above, the appeal stands
dismissed. No costs.
(TRJ) (GCSJ)
03.02.2021
Index : Yes/No
vga
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C.M.A. No.2398 of 2018
To
1.The Subordinate Judge, Gingee.
2.The Section Officer,
V.R.Section,
High Court, Madras.
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C.M.A. No.2398 of 2018
T.RAJA, J.
and
G.CHANDRASEKHARAN,J.
vga
C.M.A. No.2398 of 2018
03.02.2021
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