Madras High Court
V.Vijay Vaidhyanathan vs V.Usha on 29 November, 2021
CMA(MD)Nos.11744 and 11745 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE : 29.11.2021
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD).Nos.SR11744 and 11745 of 2021
V.Vijay Vaidhyanathan ... Appellant/Respondent
in both C.M.As
Vs.
V.Usha ... Respondent/Petitioner
in both C.M.As
COMMON PRAYER : Civil Miscellaneous Appeals filed under Section
19(1) of the Family Courts Act, 1984, to set aside the Ex-order and fair
order dated 21.11.2019 made in H.M.O.P.Nos.36 and 130 of 2017 on the
file of the Subordinate Judge, Virudhunagar.
For Appellant :Mr.G.Anto Prince
COMMON JUDGMENT
Heard Mr.G.Anto Prince, learned counsel appearing for the
appellant.
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CMA(MD)Nos.11744 and 11745 of 2021
2.The respondent/wife filed a petition in H.M.O.P.No.36 of 2017
before the Sub Judge, Virudhunagar, for restitution of conjugal rights.
The appellant/husband filed a petition in F.C.O.P.No.1966 of 2016
before the Family Court, Rangareddy District, at Malkajgiri, Hyderabad,
for divorce, which was transfered to Sub-Court, Virudhunagar and the
same was taken on file in H.M.O.P.No.130 of 2017.
3.The learned Sub-Judge, Virudhunagar, tried both the cases
together and delivered a common judgment on 21.11.2019. Aggrieved
over the same, the appellant has filed the above appeals. Even though the
appellant has filed F.C.O.P before the Family Court, Hydrabad, as per the
direction of the Hon'ble Supreme Court, the said case was transfered to
the learned Sub-Judge, Virudhunagar, which was taken on file in
H.M.O.P.No.130 of 2017.
4.Since the learned Sub-Judge dismissed the petition filed by the
appellant/husband, the appeal has to be filed before the District Court
only, as per the judgment of the Hon'ble Supreme Court in the case of
(2019)9 SCC 154, 3SCC (Cri) 702 & 709 SCC online SC 507, wherein
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CMA(MD)Nos.11744 and 11745 of 2021
the Hon'ble Supeme Court has held that the High Court Registy cannot
be decided maintainability of petitions, which requires judicial
application of mind.
5.Since the appeal has to be filed before the lower appellate Cout,
this CMAs cannot be maintained before this Court against HMOP.
Therefore, the Civil Miscellaneous Petitions are dismissed. No costs.
However, the learned counsel appearing for the appellant submitted that
the appeal has to be filed before the lower appellate Court, he is entitled
to get the refund of the Court fee paid by him. Therefore, this Court
directs Registry to return the Court fee to the appellant and the appellant
is directed to file an appeal before the District Court, Virudhunagar and
also returned the original records. The period of filing the appeal before
this Cout, while calculating the limitation for filing the appeal, shall be
excluded.
6.With the above observations, these appeals are disposed of at the
SR stage.
29.11.2021
Ns
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CMA(MD)Nos.11744 and 11745 of 2021
S.ANANTHI,J.
Ns
C.M.A.(MD).Nos.SR11744 and 11745 of 2021
29.11.2021
https://www.mhc.tn.gov.in/judis
