Telangana High Court

Mrs. Neha Salecha vs Mr. Siddharth Jain on 13 March, 2024

Author: K. Lakshman

Bench: K.Lakshman, P.Sree Sudha

            HON'BLE SRI JUSTICE K. LAKSHMAN
                                 AND
           HON'BLE SMT. JUSTICE P. SREE SUDHA

            FAMILY COURT APPEAL No.57 OF 2024

JUDGMENT:

(Per Hon'ble Sri Justice K. Lakshman)

Heard Mr. D. Madhava Rao, learned counsel for the appellant.

2. The present appeal is filed by the appellant - wife under

Section - 19 of the Family Courts Act, 1984 (for short 'Act, 1984')

challenging the order dated 16.12.2023 in I.A. No.553 of 2021 in

FCOP No.263 of 2019 passed by learned Judge, Principal Family

Court, City Civil Court at Secunderabad.

3. Respondent No.1 herein - husband had filed a petition vide

FCOP No.263 of 2019 under Section - 13 (1) (ia) and (ib) of the

Hindu Marriage Act, 1955 (for short 'Act, 1955') to grant decree of

divorce by dissolving the marriage dated 27.02.2017 between him and

the appellant herein on the ground of cruelty and desertion.

4. The aforesaid FCOP No.263 of 2019 was allowed by learned

Family Court granting decree of divorce vide order dated 16.09.2019.

While so, the appellant - wife had filed an Interlocutory Application

vide I.A. No.553 of 2021 under Order - IX, Rule -13 of the Code of

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Civil Procedure, 1908, to set aside the ex parte order and decree dated

16.09.2019 and restore the FCOP to its file contending the following

grounds:

i. Summons were not served on the appellant;

ii. Respondent No.1- husband shown the address in which she was

not residing and obtained ex parte order and decree from

learned Family Court by way of misrepresentation and

misleading; and

iii. The appellant herein does not know the proceedings in the

aforesaid FCOP and, therefore, she could not pursue the same;

5. Respondent No.1 herein filed counter opposing the said

application contending that he and his counsel has sent summons

through air mail and courier multiple times. She is aware of the ssaid

proceedings. Even then, she failed to pursue the said proceedings.

Therefore, she was set ex parte and order dated 16.09.2019 was

passed.

6. Vide order 16.12.2023, learned Family Court after hearing

both sides dismissed the aforesaid petition. Challenging the same, the

appellant - wife filed the present appeal.

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7. When the present appeal is coming for admission, an

objection was raised with regard to maintainability of the appeal under

Section - 19 (1) of the Act, 1984. On the said aspect, Mr. D. Madhava

Rao, learned counsel for the appellant argued extensively. Placing

reliance on Shah Babulal Khimji v. Jayaben D. Kania 1, he would

contend that there is trapping of finality in the order and the rights of

the appellant were substantially affected. Therefore, the present

appeal is maintainable against the impugned order.

8. It is relevant to extract Section - 19 of the Act, 1984 and the

same is 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 interlocutory order, of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of

. (1981) 4 SCC 8

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1974):Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991 (59 of 1991).

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

(4)The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.

(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.

(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."

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9. In view of the above, it is relevant to note that a similar issue

fell for consideration before a Full Bench of Allahabad at Lucknow

Bench in Kiran Bala Srivastava v. Jai Prakash Srivastava 2. In the

said case, husband filed a suit vide O.S. No.77 of 1987 against the

wife under Section - 13 of the Hindu Marriage Act, 1955 in a Family

Court at Lucknow. Wife moved an application under Section - 24 of

the Act, 1955 claiming to herself and to her daughter pendent lite

maintenance @ Rs.8,000/- a month and the litigation expenses to the

tune of Rs.11,000/-. The Family Court therein passed an order

directing the husband to pay pendent lite maintenance @ Rs.500/- a

month from the date of application and also to pay Rs.2,000/- in lump

sum towards expenses of the litigation. Wife has filed an application

seeking enhancement of the monthly maintenance. Husband has filed

an application under Order XLVII read with 151 of CPC to review the

said orders i.e., awarding an amount of Rs.1,000/- towards pendent

lite maintenance and enhancement order dated 28.07.2022. The

Family Court disposed of the said application vide order dated

07.03.2002 directing the husband to pay pendent lite maintenance in

terms of earlier order dated 16.07.2001, but subject to adjustment of

. MANU/UP/2771/2004

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amount paid pursuant to the orders passed under Section - 125 of

Cr.P.C. Challenging the said order, wife preferred an appeal. The

said appeal was listed before a Division Bench. Vide order dated

03.04.2002, a Division Bench referring to the matter to the full Bench

to answer the following reference:

"Whether appeal under Section - 19 of the Family Act, 1984, would lie against order passed under Section - 24 of the Hindu Marriage Act for grant of interim maintenance."

10. Full Bench of the Allahabad High Court at Lucknow

Bench, referring to the provisions of the Hindu Marriage Act, Section

- 19 of the Act, 1984 and the principle laid down in several judgments

including the judgment of the Apex Court in Shah Babulal Khimji1

held that since the orders under Section - 24 of the Hindu marriage

Act granting pendent lite maintenance is a judgment, so appeal will lie

under Section - 19 (1) of the Act, 1984.

11. Full Bench of Rajasthan High Court at Jodhpur in Kavita

Vyas v. Deepak Dave 3 relying on the decision in Shah Babulal

Khimji1 and Kiran Bala Srivastava2 and also several other

. AIR 2018 Raj. 72

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judgments held that an appeal shall lie under Section - 19(1) of the

Act, 1984 against an order passed by Family Court under Section - 24

of Hindu Marriage Act.

12. Similar issue was fell for consideration before a Division

Bench of Delhi High Court in Manish Aggarwal v. Seema

Aggarwal 4. The Division Bench considered provisions of the Hindu

Marriage Act, Section - 19 of the Act, 1984 and the principle laid

down by the Apex Court in Shah Babulal Khimji1, Amarnath v.

State of Haryana 5, Madhu Limaye v. State of Maharashtra 6 and

V.C. Shukla v. State 7 in paragraph No.25 held as follows:

"25. We, thus, conclude as under:

i. In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19 (1) of the said Act to the Division Bench of this Court in view of the provisions of subsection (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub-section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said Act.

. MANU/DE/4612/2012

. AIR 1977 SC 2185

. AIR 1978 SC 47

. 1980 (2) SCR 380

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ii. No appeal would lie under Section 19 (1) of the said Act qua proceedings under Chapter 9 of the Cr.P.C. (Sections 125 to 128) in view of the mandate of sub-section (2) of Section 19 of the said Act.

iii. The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr.P.C. under sub-section (4) of Section 19 of the said Act. iv. As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act."

13. To maintain an appeal under Section - 19 (1) of the Act,

1984, there should be trapping of finality in the impugned order and

that the substantial rights of the parties should be effected. In fact, in

Shah Babulal Khimji1, in paragraph Nos.113 to 120, the Apex Court

has enumerated certain illustrations of interlocutory, intermediary and

final order. The said paragraphs are relevant and the same are

extracted hereunder:

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"113. Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word "judgment" as used in clause 15 of the letters patent because the letters patent has advisedly not used the terms "order" or "decree" anywhere. The intention, therefore, of the givers of the letters patent was that the word "judgment" should receive a much wider and more liberal interpretation than the word "judgment" used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the letters patent. It seems to us that the word "judgment" has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment can be of three kinds:

(1) A final judgment.-- A judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves nothing

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else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the letters patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. (2) A preliminary judgment.--This kind of a judgment may take two forms--(a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the Trial Judge is concerned and therefore appealable to the larger Bench. (b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections are decided by the trial Judge against the defendant, the suit is not

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terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore,be construed to be a judgment so as to be appealable to a larger Bench.

(3) Intermediary or interlocutory judgment.-- Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses

(a) to (w) of Order 43 Rule 1 and have already been held by us to be judgments within the meaning of the letters patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. For instance, where the

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trial Judge in a suit under Order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the letters patent so as to be appealable to a larger Bench. Take the converse case in a similar suit where the trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is false and succeed in the suit. Thus, such an order passed by the trial Judge would not amount to a judgment within the meaning of clause 15 of the letters patent but will be purely an interlocutory order.

Similarly, suppose the trial Judge passes an order setting aside an ex parte decree against the defendant, which is not appealable under any of the clauses of Order 43 Rule 1 though an order rejecting an application to set aside the decree passed ex parte falls within Order 43 Rule 1

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clause (d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of letters patent. The fact, however, remains that the order setting aside the ex parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench.

114. In the course of the trial, the trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to

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the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the trial Judge.

115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.

116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the letters patent. Suppose the trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the trial Judge is purely discretionary and interlocutory, it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore, though interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the letters patent. This

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is what was held by this Court in Shanti Kumar case [(1974) 2 SCC 387:AIR 1974 SC 1719 : (1975) 1 SCR 550] , as discussed above.

117. Let us take another instance of a similar order which may not amount to a judgment. Suppose, the trial Judge allows the plaintiff to amend the plaint by adding a particular relief or taking an additional ground which may be inconsistent with the pleas taken by him but is not barred by limitation and does not work serious injustice to the defendant who would have ample opportunity to disprove the amended plea taken by plaintiff at the trial. In such cases, the order of the trial Judge would only be a simple interlocutory order without containing any quality of finality and would therefore not be a judgment within the meaning of clause 15 of the letters patent.

118. The various instances given by us would constitute sufficient guidelines to determine whether or not an order passed by the trial Judge is a judgment within the meaning of the letters patent. We must however hasten to add that instances given by us are illustrative and not exhaustive. We have already referred to the various tests laid down by the Calcutta, Rangoon and Madras High Courts. So far as the Rangoon High Court is concerned we have already pointed out that the strict test that an order passed by the trial Judge would be a judgment only if it amounts to a decree under the Code of Civil Procedure, is legally erroneous and

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opposed to the very tenor and spirit of the language of the letters patent. We, therefore, do not approve of the test laid down by the Rangoon High Court and that decision therefore has to be confined only to the facts of that particular case because that being a case of transfer, it is manifest that no question of any finality was involved in the order of transfer. We would like to adopt and approve of generally the tests laid down by Sir White, C.J., in Tuljaram Row case [ILR 35 Mad 1] (which seems to have been followed by most of the High Courts) minus the broader and the wider attributes adumbrated by Sir White, C.J., or more explicitly by Krishnaswamy Ayyar, J. as has been referred to above.

119. Apart from the tests laid down by Sir White, C.J., the following considerations must prevail with the court:

(1) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice to one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by

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the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.

(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.

(3) The tests laid down by Sir White, C.J. as also by Sir Couch, C.J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind."

120. Thus, these are some of the principles which might guide a Division Bench in deciding whether an order passed by the trial Judge amounts to a judgment within the meaning of the letters patent. We might, however, at the risk of repetition give illustrations of interlocutory orders which may be treated as judgments:

(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant.

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(2) An order rejecting the plaint.

(3) An order refusing leave to defend the suit in an action under Order 37, of the Code of Civil Procedure.

(4) An order rescinding leave of the trial Judge granted by him under clause 12 of the letters patent. (5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under Section 80, bar against competency of the suit against the defendant even though the suit is kept alive.

(6) An order rejecting an application for a judgment on admission under Order 12 Rule 6.

(7) An order refusing to add necessary parties in a suit under Section 92 of the Code of Civil Procedure. (8) An order varying or amending a decree. (9) An order refusing leave to sue in forma pauperis. (10) An order granting review.

(11) An order allowing withdrawal of the suit with liberty to file a fresh one.

(12) An order holding that the defendants are not agriculturists within the meaning of the special law. (13) An order staying or refusing to stay a suit under Section 10 of the Code of Civil Procedure. (14) An order granting or refusing to stay execution of the decree.

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(15) An order deciding payment of court fees against the plaintiff."

14. In the light of the above stated legal position, coming to the

facts of the present case, the appellant herein had filed an interlocutory

application vide I.A. No.553 of 2021 under Order - IX, Rule - 13 of

CPC to set aside ex parte order and decree dated 16.09.2019 in FCOP

No.263 of 2019. The application was dismissed. There is no trapping

of finality and the substantial rights of the appellant were not affected.

In fact, the said application was filed to set aside the ex parte order

and decree passed by learned Family Court. Thus, the impugned

order is an interlocutory order, but not an intermediary or final order.

15. It is relevant to note that the Family Court Act was enacted