Himachal Pradesh High Court
Tejinder Singh vs Beverley Singh on 28 August, 2023
Bench: Jyotsna Rewal Dua, Virender Singh
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO (FC) No.12 of 2023
Reserved on : 02.08.2023
Date of decision : 28.08.2023
.
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Tejinder Singh ..Appellant
Versus
Beverley Singh ..Respondent
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of
Coram :-
Justice Jyotsna Rewal Dua, Judge
Justice Virender Singh, Judge
rt
Whether approved for reporting ?1 Yes
_____________________________________________________________
For the Appellant : Mr. R.L. Sood, Senior Advocate, with
Mr. Arjun Lall and Ms. Sanjeevani Sood,
Advocates.
For the Respondent : Mr. Neeraj Gupta, Senior Advocate, with
Mr. Ajeet Pal Singh Jaswal, Mr. Vedhant Ranta and
Ms. Meera Devi, Advocates.
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Jyotsna Rewal Dua, Judge
Respondent has raised a preliminary objection to the
maintainability of instant appeal. Hence, this question is being adjudicated
at the first instance.
The Issue
Whether the instant appeal preferred by the appellant (husband)
under Section 19 of the Family Courts Act, 1984 (the Act in short) read
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with Order 43 Rule 1 & Section 151 of the Code of Civil Procedure
against an order passed by the learned Family Court under Order 39 Rules
1 & 2 of the Civil Procedure Code read with Section 7(1)(d) of the
.
Family Courts Act is maintainable, is the point in issue.
2. Sequence of facts required to be noticed :-
2(i). Appellant is aged around 79 years and respondent is his wife
aged about 68 years. Both are citizens of United Kingdom. Marriage
between the two was solemnized on 18.03.2009 in New Delhi in
of
accordance with Anand Karaj rituals. It was duly registered with Registrar
of Marriages, New Delhi. It was appellant's fourth marriage and second of
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the respondent. Both have children from their previous marriages.
Matrimonial discord developed between the parties. We are not going into
details of the matter on merit as the present order is confined to the
adjudication on maintainability of present appeal. Suffice to observe that
the appellant filed a civil suit against his wife on 28.04/01.05.2023 in the
Court of Principal Judge, Family Court, Shimla. The plaint was under
Section 38 of the Specific Relief Act read with Order 7 Rules 1 & 2 as
well as Section 26 of the Code of Civil Procedure (CPC) read with
Section 7(d) of the Family Courts Act praying for following relief :-
"a. Grant a decree of permanent, perpetual and prohibitory
injunction against the respondent and in favour of the
petitioner, restraining her from entering or approaching any
place of residence of the petitioner, within 100 meters of such
place of residence, particularly, Knollwood Estate, Shimla
East, Shimla-171 002.
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b. Grant a decree of permanent, perpetual and prohibitory
injunction against the respondent restraining her from
approaching or coming in contact within the petitioner, and
from approaching him or coming within a distance of 10
.
meters.
c. Grant a decree of permanent, perpetual and prohibitory
injunction against the respondent restraining her from
removing any household articles, furniture, carpets, paintings,
silverware, artifacts, electric and electronic gadgets from the
house(s) of the petitioner.
of
d. Grant a decree of permanent, perpetual and prohibitory
injunction against the respondent restraining her, her servants,
agents or any other persons claiming through her or under her
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instructions, from interfering in any manner whatsoever, of the
use, occupation, possession and enjoyment by the petitioner
and any person claiming through or under him of his
immovable and moveable properties.
e. Grant a decree of permanent, perpetual and prohibitory
injunction against the respondent, restraining her from raising
any demand against the petitioner, for providing her with any
further personal exclusive residence.
f. Allow any other relief deemed fit by this learned Court, in
favour of the petitioner and against the respondent as may be
deemed fit and proper in the peculiar facts and circumstances
attending to the present case."
2(ii) Alongwith the plaint, an application under Order 39 Rules 1 & 2
CPC read with Section 7(1)(d) of the Family Courts Act was also moved
for grant of following temporary injunction :-
a. Grant a temporary injunction in favour of the
petitioner/applicant and against the respondent/non-applicant
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restraining her from approaching/entering the properties of
the petitioner/applicant, within a distance of 100 meters.
b. Further, to grant a temporary injunction against the
respondent restraining from maintaining a distance less than
.
10 meters from the respondent and from either speaking to him
or from addressing any communication to him."
Subject matter of this lis mainly concerns appellant's property at
Knollswood Estate, Chhota Shimla. Respondent asserts her right of
residence in the 'shared household', whereas the appellant wants to
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restrain her from exercising that right in this particular property. The other
properties owned or possessed by the parties, if any, are not subject matter
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of present dispute.
2 (iii) The respondent also knocked the doors of the Court and filed a
complaint against the appellant under the Domestic Violence Act on
28.04.2023 in the Court of learned Chief Judicial Magistrate Shimla. On
29.04.2023, learned ACJM (Court No.1) Shimla called for Domestic
Incident Report from the concerned Protection Officer.
2(iv) In the application moved by the appellant under Order 39 Rules 1
& 2 CPC in his civil suit, learned District Judge (Family Court) on
01.05.2023 while issuing notice to the respondent, temporarily restrained
her from entering into the residential house of the petitioner situated at
Knollswood Estate, Shimla East, Shimla. She was, however, given the
liberty to live in cottage of aforesaid Knollswood Estate.
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2(v) The respondent moved an application under Order 39 Rule 4 read
with Section 151 CPC for vacation of ex-parte injunction order dated
01.05.2023. She also filed her written statement to the plaint instituted by
.
the appellant.
2(vi) The Protection Officer furnished the Domestic Incident Report on
12.05.2023 in the complaint instituted by the respondent.
2(vii) The application moved by the appellant under Order 39 Rules 1
of
& 2 read with Section 151 CPC read with Section 7(1) (d) of the Act was
dismissed by the learned District Judge (Family Court), Shimla on
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19.05.2023. It is this order which has been assailed by the appellant in the
present appeal instituted under Section 19(1) of the Family Courts Act.
For completion of sequence , we may note that learned ACJM, Shimla
vide order dated 25.05.2023 disposed of the application of respondent
filed under Section 23(2) of the Domestic Violence Act with following
operative directions :-
"39. In the light of the judgments cited supra and the discussion rendered
herein above, it is clear that the applicant being legally wedded wife of
respondent has right of residence. The offer of respondent qua the
alternate accommodation made to the applicant as per para 7 and 8 of the
reply filed to application under Section 12 of the D.V Act appears to be a
reasonable offer. Hence, in view of judgments ' Sabah Vs. Adnan' and '
Jaidev Rajnikant Shroff VS Poonam Jaidev Shroff', cited supra, no order
is required to be passed under Sub-Section 19 (a) (b) & (c) of D.V Act. In
the facts and circumstances of this case, only an order under Section 19
(f) is required to be passed directing the respondent to secure alternate
accommodation for the applicant or to pay rent for the same. The offer of
respondent made in para 7 and 8 of his reply filed to the application under
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Section 12 of D.V Act being reasonable is accepted. However, the
applicant would be entitled to choose to reside in either of the premises
mentioned in para 7 and 8 of the aforesaid reply. If the premises
mentioned in para 7 and 8 of the reply are not acceptable to the applicant
then the respondent shall pay rent to the tune of ₹ 50,000/- per month (in
.
view of the status of parties) to applicant. The applicant shall submit her
choice in writing and the respondent shall make necessary arrangements
accordingly. He shall allow the wife to enter upon, reside and remain in
such premises without any disturbance and interference.
40. Accordingly, application is partly allowed. Application stands
disposed of. Be tagged with main case file for record.
of
41. The observation made, here-in-above, are confined to the dispose of
the present application and same shall have no bearing on the merits of
the case.
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42. The copy of order be given free of cost to the parties to the
application, the Police Officer- In-Charge of the Police Station concerned
and also to Protection Officer in view of Section 24 of the Protection of
Women from Domestic Violence Act."
The respondent-wife has preferred Criminal Appeal under
Section 29 of the Domestic Violence Act against the above order in the
Court of learned Sessins Judge, Shimla.
2(viii) On the first day of listing of the present appeal, notice of the
appeal was waived for the respondent and an objection was raised to the
maintainability of the appeal. By way of interim arrangement,
implementation of impugned order dated 19.05.2023 was ordered to be
kept in abeyance with direction to the parties to continue with the
arrangement as ordered by the Family Court on 01.05.2023. The said
arrangement is continuing as on date.
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2(ix) On 05.07.2023, looking to the relationship between the parties
and the nature of dispute between them, the matter was referred to the
learned mediator for exploring possibility of an amicable settlement. The
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mediation proceedings remained unsuccessful. Hence, the matter was
heard.
2(x) The respondent vigorously objected to the maintainability of this
appeal instituted under Section 19(1) of the Family Courts Act, whereas
the appellant defended the course of remedy adopted by him in laying
of
challenge to the order dated 19.05.2023 dismissing his application under
Order 39 Rules 1 & 2 read with Section 151 CPC.
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3. Both sides have addressed arguments for and against the
maintainability of the appeal. Their respective submissions hinge around
interpretation of Section 19 of the Act & the law laid down and
interpreted by the Courts on the point. For convenience and to avoid
repetition, the submissions and discussion thereupon have been
assimilated hereinafter.
4. Submissions & Observations
It will be in place to first extract Section 19 of the Family Courts
Act around which the submissions of both parties revolve. Section 19 of
the Act runs 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.
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(2) No appeal shall lie from a decree or order passed by the Family Court with
the consent of the parties 1[or from an order passed under Chapter IX of the
Code of Criminal Procedure, 1973 (2 of 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].
(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
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.
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(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. 3[(6)] An appeal preferred under sub-section
(1) shall be heard by a Bench consisting of two or more Judges."
Section 19 though is with the heading "appeal", but also provides
remedy of revision. As per this Section :-
If a decree/order is passed by the Family Court with the consent of
parties or under Chapter IX of the Criminal Procedure Code after
the commencement of the Act, then appeal shall not lie against
such decree/order.
Appeal shall lie to the High Court against every judgment passed
by the Family Court on facts and law.
Appeal on facts and law shall lie to the High Court from an order
of the Family Court not being an interlocutory order.
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Provision of filing revision is also available against correctness,
legality or proprietary of an order not being an interlocutory order
and also to the regularity of such proceedings.
.
4(i) Instant appeal is against an order passed by the learned
Family Court under Order 39 Rules 1 & 2 read with Section 151 CPC and
Section 7(1) (d) of the Act. The application moved by the appellant
(plaintiff) under Order 39 Rules 1 & 2 CPC has been finally adjudicated
of
upon under this order. Point to be first considered is what is an
interlocutory order, the final order and the nature of order passed under
Order 39 Rules 1 & 2 CPC. We now proceed to consider some of the
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judicial precedents cited by the parties.
4(i) (a) In 2005(4) Bom. CR 493 (Amishi Milan Hunawar Vs.
Shri Milin Bhabani Shankar), the Bombay High Court relied upon AIR
1998 Orissa 173 (Swarna Prava Tripathy Vs. Dibyasingha Tripathy)
and 1991 Mh.L.J. 737 (Sunil Hansraj Gupta Vs. Payal Gupta) to hold
that right to appeal depends upon statutory provisions in that regard.
There is no inherent right to the litigant to file an appeal against an order
passed by the Court or authority having original jurisdiction unless the
statute dealing with the procedure relating to the matter in controversy or
the proceedings before such Court or authority specifically provides for an
appeal against the order passed by such Court or authority. Right to appeal
can always be restricted or regularized by the statutory provisions. Once
Section 19 (1) of the Family Courts Act specifically provides that an
appeal would lie against every judgment and order of the Family Court
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except interlocutory order and when sub-section (5) of Section 19
specifically bars appeal against any order other than the order which is
made appealable under sub-section 1 of Section 19, the intention of the
.
Legislature is made very clear that the orders which have no finality are
not to be subjected to an appeal under the said Act. The expression
'interlocutory order' used in the Family Courts Act refers to the orders
passed during pendency of the main proceedings and which relate to any
dispute which is sought to be resolved or put to rest, temporarily and
of
pending the disposal of the main proceedings. An order which cannot
have existence or an order which does not subsist on conclusion of the
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main proceedings unless it is specifically protected while disposing the
main proceedings, will for all purposes be an interlocutory order within
the meaning of said expression under the said provision of law. Being so,
any order which is passed during the pendency of the proceedings which
does not amount to a final decision on any point relating to the rights of
the parties and which has been passed either to maintain status quo or to
facilitate the disposal of the main proceedings, or for the purpose of
progress of the main proceedings either in relation to the marital
relationship or other disputes which can be dealt with by the Family Court
in terms of the provisions of the said Act would be an interlocutory order
and, therefore, no appeal would lie under Section 19(1) against such order.
The impugned order directing the appellant not to prevent the ingress and
egress of the members of the respondent's family and to allow the
respondent's family to enter, occupy, use and utilize the suit flat was held
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to be an interlocutory order passed during the pendency of the
proceedings. The appeal, therefore, was held to be not maintainable.
4(i) (b) In ILR (2013) I Delhi 210 (Manish Aggarwal Vs. Seema
.
Aggarwal & Ors.), the Delhi High Court examined the scope and ambit
of Section 19 of the Family Courts Act and inter alia concluded 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 character of an intermediate
order and are not merely interlocutory orders would be amenable to
of
appellate jurisdiction under sub-section 1 of Section 19 of the said Act.
The Court held that order granting interim maintenance under Section 24
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of the Hindu Marriage Act would be an intermediate order affecting vital
rights of the parties.
4(i) (c) The Chhatisgarh High Court in AIR 2017 Chh 45 (Ajay
Jagarnath Gupta Vs. State of Chhattisgarh and others) while
considering the scope of proviso to Section 2(1) of the Chhattisgarh High
Court (Appeal to Division Bench) Act 2006 held that this proviso bars
appeals only against those interim orders which are totally interlocutory
in nature, do not decide matters of moment and do not have an element of
finality attached to them. An interim order vitally affecting rights of the
parties having bearing on final adjudication of the case cannot be termed
as interlocutory order, even though order is interim. An appeal would lie
against such order. An appeal would also lie against those orders which
cannot be undone at the time of final hearing and which have an element
of finality attached to them. The order, effect of which cannot be undone
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at the time of final hearing, cannot be termed to be interlocutory order and
in such an eventuality, an appeal would lie against such order.
4(i) (d) In 2018 (4) All L.J. 103 (Yogish Arora Vs. Jennette
.
Yogish Arora alias Miss Jennette D'Souza), it was observed that under
Section 7 of the Family Courts Act, the Family Court has the jurisdiction
to pass injunction order. However, unlike under order 39 Rules 1, 2 & 4
C.P.C., no specific provision has been made in the Act for grant of interim
injunction or modifying or vacating the same. Consequently, no specific
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provision for challenging such order whether granting, refusing,
modifying or vacating the injunction has been provided. The Court then
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considered the question whether the order granting or refusing or
modifying or setting aside injunction can be treated as interlocutory order
or not. The Court opined that insofar as the property which is covered or
is the subject matter of the order, whereby interim injunction order is
either granted or refused or modified or vacated would become final
between the parties till the disposal of the proceedings pending before the
Family Court. Their stand on the subject-matter of such order cannot be
changed unless interfered by the higher Court either way. Under such
circumstances, the order granting or refusing injunction or modifying or
vacating injunction passed by the Family Court would not be purely
interlocutory order. It can be safely drawn that order of injunction would
be appealable inasmuch as such order attains finality during the pendency
of the proceedings. The order granting or refusing interim injunction or
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modifying or vacating the same would be appealable under Section 19(1)
of the Family Courts Act.
Question before a Division Bench of Allahabad High Court in
.
(2014) 1 All LJ 1 (Smt. Kamal Kumari Vs. State of U.P. through
Principal Secretary (Law) Secretariat U.P. and another) was with
respect to the maintainability of appeal filed under Section 19 of the
Family Courts Act against a decree for dissolution of marriage passed
under Section 13 of the Hindu Marriage Act. The Court held that to attract
of
Section 19 of the Family Courts Act, it is essential that the decree or order
is that of the Family Court. In such cases, appeal shall lie to the High
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Court. Section 19 is not attracted to the cases where the decree or order is
by the Civil Judge of original jurisdiction in relation to the areas where
Family Court had not been established. In areas where Family Courts
have been established and where the decision is by such Court, remedy of
appeal will be available to such litigants as per provisions of the Family
Courts Act. In areas where family Courts have not been established, a
litigant therein cannot plead discrimination as no litigant has a right to
institute a lis or file appeal before any particular forum till such time a
remedy is available.
4(i) (e) A Full Bench of Rajasthan High Court in 2018 (1) RLW
97 (Kavita Vyas Vs. Deepak Dave), held that an appeal would lie under
Section 19 of the Family Courts Act against an order passed by the Family
Court under Section 24 of the Hindu Marriage Act. A Full Bench decision
of Allahabad High Court reported as 2005 (23) LCD 1, (Kiran Bala
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Srivastava Vs. Jai Prakash Srivastava), Division Bench judgment of
Delhi High Court reported as 192 (2012) DLT 714 (Manish Aggarwal
Vs. Seema Aggarwal) and Division Bench judgment of Uttrakhand High
.
Court reported as AIR 2010 Utr 67 (Rahul Samrat Tandon Vs. Smt.
Neeru Tandon) who opined that order passed under Section 24 of the
Hindu Marriage Act though limited in its duration till the main
proceedings are decided, is a final order, were relied upon. It was held that
an order would be a judgment because it decides matters of moment
of
which affect the valuable right of the parties. The expression "some right
or liability" is not restricted to the right in controversy in the main
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proceedings itself. It may be an order which is of ancillary nature, but is
determinative of the right and liability of the parties.
4(ii) (a) (1977) 4 SCC 137 (Amar Nath and others Vs. State of
Haryana and others), Hon'ble Apex Court inter-alia considered the
definition of word interlocutory given in Webster's New World
Dictionary as an order other than final decision. It was held that
interlocutory order to be appealable must be that which decides the rights
and liabilities of the parties concerning a particular aspect. The term
interlocutory order may be used in a statute sometimes in a restricted
sense and not in any broad or artistic sense. The touchstone for an order to
be an interlocutory order and hence not appealable is to see whether the
order is purely interim/temporary in nature and does not decide, touch or
substantially affect the important right/liability of the parties. It was also
highlighted by the Hon'ble Apex Court that finality of the order could not
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be judged by co-relating the order with the controversy in the complaint
and the fact that controversy still remains alive was irrelevant. Para 6 of
the judgment reads as under :-
.
"Let us now proceed to interpret the provisions of s. 397 against the historical
background of these facts. Sub- section (2) of s. 397 of the 1973 Code may be
extracted thus :
The powers of revision conferred by Sub- section (1) shall not be exercised in
relation to any interlocutory order passed ;in any appeal, inquiry, trial or other
proceeding.
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The main question which falls for determination in this appeal is as to, the what is
the connotation of the term "interlocutory order" as appearing in sub-s. (2) of s.
397 which bars any revision of such an order by the High Court. The term
"interlocutory order" is a term of well-known legal significance and does not
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present any serious diffident. It has been used in various statutes including the
Code of Civil Procedure, Letters Patent of the High Courts and other like statutes.
In Webster's New World Dictionary "interlocutory" has been defined as an order
other than final decision. Decided cases have laid down that interlocutory orders to
be appealable must be those which decide 'the rights and liabilities of the parties
concerning a particular aspect. It seems to, us that the term "interlocutory order"
in s. 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 that would be against
the very object which formed the basis for insertion of this particular provision in s.
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 s. 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 as to be.
outside the purview of the revisional jurisdiction of the High Court."
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4((ii) (b) In AIR 1977 (4) SCC 551 (Madhu Limaye Vs. The
State of Maharashtra), the view taken in Amar Nath's case (supra)
with regard to interpretation of the word interlocutory order was
.
further explained. The Apex Court further observed that ordinarily and
generally, the expression interlocutory order has been understood and
taken to mean as converse of the term final order. An order which does
not deal with the final rights of the parties, but either is made before
judgment and gives no final decision on the matters in dispute, but is
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merely on a matter of procedure, or is made after the judgment, and
merely directs how the declaration of right already given in the final
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judgment is to be worked out, is termed interlocutory. An interlocutory
order, though not conclusive of the main dispute may be conclusive as
to the subordinate matter with which it deals. The Apex Court thus
clearly held that an interlocutory order can be final in certain ways.
That it is neither advisable or possible to make a catalogue of orders to
demonstrate which binds of orders would be final. The finality of the
order was not to be judged by co-relating that order with the
controversy in the complaint. The fact that the controversy still
remained alive is irrelevant.
The appeal would be maintainable in case the order in
question is not to be construed as an interlocutory order.
4(ii) (c) (1981) 4 SCC 8 (Shah Babulal Khimji Vs. Jayabin D.
Kania and another) held that even an interlocutory order could be called
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a judgment when it had the quality of attaching finality to it. The Apex
Court laid down that there were three kinds of judgments : (i) final
judgment, (ii) preliminary judgment and (iii) intermediary or interlocutory
.
judgment. Intermediary or interlocutory judgment was described as
under :-
"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
of
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-s. (2) of s. 2 cannot be physically imported into the
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definition of the word 'judgment' as used in cl. 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 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
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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 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
of
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 larger Bench.
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(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 o. 43 R.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 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
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19
within the meaning of cl. 15 of the Letters Patent but will be purely an
interlocutory order. Similarly, suppose the Trial Judge passes an Order setting
aside an exparte decree against the defendant, which is not appealable under any
of the clauses of O. 43 R.1 though an order rejecting an application to set aside
the decree passed exparte falls within O. 43 R.l cl. (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
of
the plaintiff and hence amounts to an interlocutory judgment and is therefore,
appealable to a larger Bench.
114.
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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 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
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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 is what was held by this Court in Shanti Kumar's case
(supra), as discussed above.
117. Let us take another instance of a similar order which may not
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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
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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 cl. 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 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's case (supra) (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.
::: Downloaded on - 28/08/2023 20:34:08 :::CIS 21119. 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 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 the Trial Judge. The courts must give sufficient allowance to the Trial Judge and raise a of 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.
rt (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 (2) An order rejecting the plaint.
(3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure.
(4) An order rescinding leave of the Trial Judge granted by him under clause 12 of the Letters Patent.::: Downloaded on - 28/08/2023 20:34:08 :::CIS 22
(5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under s. 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 s. 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.
of (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 s. 10 of the Code of Civil rt Procedure.
(14) An order granting or refusing to stay execution of the decree.
(15) An order deciding payment of court fees against the plaintiff.
121. Here, it may be noted that whereas an order deciding the nature of the court fees to be paid by the plaintiff would be a judgment but this order affects only the plaintiff or the Government and not the defendant. Thus, only the plaintiff or the Government as the case may be will have the right to file an appeal in the Division Bench and not the defendant because the question of payment of court fees is a matter between the Government and the plaintiff and the defendant has no locus in this regard.
122. We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a straitjacket. We, however, hope and trust that by and large the controversy raging for about a century on the connotation of the term 'judgment' would have now been settled and a few cases which may have been left out, would undoubtedly be decided by the court concerned in the light of the tests. Observations and principles enunciated by us.
::: Downloaded on - 28/08/2023 20:34:08 :::CIS 23123. In the instant case, as the order of the Trial Judge was one refusing appointment of a receiver and grant of an ad-interim injunction, it is undoubtedly a judgment within the meaning of the Letters Patent both because in view of our judgment, order 43 Rule 1 applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of .
finality and would therefore be a judgment within the meaning of cl. 15 of the Letters Patent. The consistent view taken by the Bombay High Court in the various cases noted above or other cases which may not have been noticed by us regarding the strict interpretation of cl. 15 of the Letters Patent are hereby overruled and the Bombay High Court is directed to decide the question in future in the light of our decision."
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5. Conclusion 5(a) The Apex Court has held that most of the interlocutory orders rt which contain quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 CPC. These have been held to be judgments though within the meaning of Letters Patent Appeal and, therefore, appealable. It was further observed that there are other such kind of interlocutory orders which are not covered by Order 43 Rule 1 CPC but have characteristics and trappings of finality, in that adversely affect a valuable right of the party, decide an important aspect of trial in an ancillary proceeding.
Above parameters though were described for determining as to what would fall within the scope of 'judgment' for the purpose of Letters Patent Appeal, the parameters, however, will hold good even for determining what would constitute pure interlocutory order and which of the interlocutory orders could be treated as not merely an interlocutory order, but something beyond that, something akin to the judgment which can be assailed in an appeal under Section 19(1) of the Act. The order ::: Downloaded on - 28/08/2023 20:34:08 :::CIS 24 passed under Order 39 Rules 1 & 2 CPC read with Section 7(1) (d) of the Act, deciding the application for temporary injunction prayed for, possesses the characteristics and trapping of finality. It affects valuable .
rights of the parties. It decides important aspects of the main trial in ancillary proceedings. Such an order though not conclusive of main dispute, but is conclusive of subordinate matter. It decides some contentious issues between the parties. Such an order passed under Order 39 Rules 1 & 2 CPC cannot be said to be totally interlocutory in nature.
of 5(b) In relation to Section 19 of the Act vis-à-vis final order passed under Order 39 Rules 1 & 2 CPC read with Section 7(1) (d) of the Act, rt our observations are as under :-
(i) The Family Court derives its jurisdiction from Section 7 of the Act.
Such jurisdiction is not confined only to the matrimonial issues, but also extends to suits or proceedings between the parties to a marriage with respect to the property of the parties or of either of them and also to the suit or proceeding for an order or injunction in circumstances arising out of marital relationship. Section 7 of the Act reads as under :
"7. Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and ::: Downloaded on - 28/08/2023 20:34:08 :::CIS 25
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.-The suits and proceedings referred to in this sub-section .
are suits and proceedings of the following nature, namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage of or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
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(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment."
Section 10 of the Act provides for applicability of the provisions of CPC subject to other provisions of the Act & Rules (other than the proceedings under Chapter IX Cr.P.C.) to the Family Court. For ::: Downloaded on - 28/08/2023 20:34:08 :::CIS 26 purposes of said provisions of the Code, a Family Court shall be deemed to be a Civil Court & shall have all powers of such Court.
The order passed by the Family Court exercising its jurisdiction .
under Section 7 of the Act thus cannot be said to be mere interlocutory in nature. It falls within the purview of appealable orders under Section 19(1) of the Act.
(ii) The order passed under Order 39 Rules 1 & 2 CPC read with Section 7(1) (d) of the Act deciding the application for temporary of injunction possesses the characteristics and trapping of finality. It affects valuable rights of the parties. It decides important aspect of rt the trial in main proceedings, though passed in ancillary proceedings. It finally adjudicates matter of the moment. Such an order though not conclusive of main dispute, but is conclusive of subordinate matter. It decides some contentious issues between the parties. Such an order passed under Order 39 Rules 1 & 2 CPC cannot be said to be totally interlocutory in nature.
(iii) The order closing the proceedings under Order 39 Rules 1 & 2 CPC is final in its nature till the decision in the matter unless modified. Such order/proceedings have characteristic of finality attached to them. Same visits parties with consequences.
(iv) If the order passed under Order 39 Rules 1 & 2 CPC read with Section 7(1) (d) of the Act is to be held as purely interlocutory in nature, then neither the provision of appeal under Section 19(1) nor the provision of revision under Section 19(4) of the Family ::: Downloaded on - 28/08/2023 20:34:08 :::CIS 27 Courts Act could be resorted to against it as neither appeal nor revision can be preferred under the Family Courts Act against an interlocutory order.
.
(v) The order passed under Order 39 Rules 1 & 2 CPC is that kind of intermediate order referred to by Hon'ble Apex Court in Shah Babulal Khimji's case (supra) in para 113 (3) of the judgment. The appeal against the order passed under Order 39 Rules 1 & 2 CPC has been provided under Order 43 Rule 1(r) CPC.
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6. The Result In the application moved by the appellant under Order 39 Rules 1 rt & 2 read with Section 151 CPC and Section 7(1) (d) of the Act, the case set up was that he was being subjected to extreme & calculated acts of cruelty by the respondent ; He had refused to meet unreasonable and regularly increasing exorbitant financial demands of the respondent, who had been demanding a share in his immovable properties besides demanding that he should purchase an independent property in her name at Delhi ; Respondent had ignored his falling health conditions. A lot of other allegations have been levelled, into which we are not going at present in view of limited controversy being decided under this order.
Respondent has refuted all the allegations. She has her own woes to narrate. She has alleged that the appellant has already thrown her out from the 'shared house' at New Delhi ; He is attempting to throw her out from the only remaining home i.e. Knollswood Estate Chhota Shimla ;
Respondent has properties of her own but that does not mean that the ::: Downloaded on - 28/08/2023 20:34:08 :::CIS 28 appellant is absolved of his duties and responsibilities to ensure that she maintains her social standing & status and is able to live her life with dignity. According to the appellant, respondent has threatened to get him .
arrested. An account of certain incidents & happenings involving the premises in question was given by both parties. Learned Trial Court in the impugned order dated 19.05.2023 has taken stock of the same as under :-
"15. Admittedly, the applicant has already rented out the accommodation situated at Sardar Patel Marg, Chanakayapuri, New Delhi, where the of respondent was living in shared house with the applicant during winter. The alleged act of violence was reported to the police on 18.04.2023, when the respondent tried to enter into her another shared household at Knollswood rt Estate, Chotta Shimla, from where the applicant had already shifted her belongings to a nearby accommodation adjoining to the main house, which clearly goes to show that the respondent is being deprived of staying in her shared household at Knollswood Estate, Chotta Shimla, to which she is entitled to under Section 2 (s) of the Protection of Women from Domestic Violence Act, 2005.
16. Though, the applicant has placed reliance upon authority of the Hon'ble Apex Court in case titled as Jaidev Rajnikant Shroff versus Poonam Jaidev Shroff, (2022) 1 SCC, 683, wherein the Hon'ble Supreme Court has upheld order of the Family Court restraining the respondent from entering into her shared household in view of the grave acrimonious relations between the parties as well as criminal litigation and the longstanding divorce proceedings pending between them. However, in the case in hand, no such criminal litigation or divorce proceedings are pending in between the parties prior to the incident dated 18.04.2023 when act of violence was reported to the police and the police and the proceedings under Domestic Violence Act was initiated against the applicant. Therefore, the facts and circumstances of the aforesaid cited authority are not applicable to the facts and circumstances of the present case, as such, the same cannot be relied upon.
17. Thus, on close scrutiny of the pleadings of the parties and the documents placed on record, I am of the considered view that the applicant has ::: Downloaded on - 28/08/2023 20:34:08 :::CIS 29 no prima facie case in his favour and the balance of convenience also does not lie with him. I am also of the view that the applicant shall not suffer injury of such a nature and extent which cannot be compensated in terms of money, if, the ad-interim injunction as sought by the applicant is not granted in his favour, rather, the respondent shall suffer more injury, if the ad-interim .
injunction is allowed in favour of the applicant, as the same shall restrain the respondent from prosecuting the proceedings under Domestic Violence Act pending before the learned Additional Chief Judicial Magistrate, Court No1 Shimla, which is not permissible under clause (b) of section 41 of the Specific Relief Act, 1963. Further, the conduct of the applicant has been such, which clearly disentitles him to the injunction, as provided under clause (i) of Sectio 41 of the Specific Relief Act. Therefore, the application under order 39 Rules 1 of and 2 CPC read with Section 151 CPC deserves dismissal. Hence, point No. 1 is answered in negative against the applicant.
Final Order.rt
18. In view of my findings on points No. 1 and 2 above, the application is dismissed. However, this order shall have no binding on the merits of the main suit. It is, also made clear that the observations hereinabove, made by this Court, shall have no bearing upon the proceedings pending before the learned Addl. Chief Judicial Magistrate (1) Shimla under Domestic Violence Act. The application is disposed of accordingly. It be tagged with the main case file."
Under the impugned order, learned Trial Court had finally decided the application under Order 39 Rules 1 & 2 CPC read with Section 7 (1) (d) of the Act. The matter of moment between the parties was finally adjudicated upon. Interim injunction against the respondent from entering the premises in dispute was declined by the Court. This order culminated the ancillary proceedings. A contentious issue between the parties was put to rest. We are not going into either the details or the merits of the impugned order lest it prejudices the case of either party. The order in question involves and affects vital rights of the parties. Merely ::: Downloaded on - 28/08/2023 20:34:08 :::CIS 30 because the main lis is still pending, would not take the order outside the appealable purview of Section 19 of the Family Courts Act. The impugned order has all the characteristics of an intermediate order and is .
not just an interlocutory order. We, therefore, hold that instant appeal is maintainable.
7. List the main appeal for hearing after three weeks. Interim arrangement to continue in the meanwhile.
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Jyotsna Rewal Dua
Judge
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28th August, 2023 (K) Virender Singh
Judge
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