Madras High Court
Sivakumar vs K.Sasikala on 30 April, 2021
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.R.P.SR.No.28786 of 2020
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 30.04.2021
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.SR.No.28786 of 2020
Sivakumar ...Petitioner
Vs
K.Sasikala ...Respondent
Prayer: Civil Revision Petition filed under Section 115 of Civil
Procedure Code, to set aside fair and decreetal order passed in
I.A.No.1255 of 2019 in I.A.No.232 of 2015 in F.C.O.P.No.186 of 2014,
on the file of the Family Judge, Salem, dated 07.01.2020.
For Petitioner : Mr.S.Kamadevan
ORDER
The present petition is listed before this Court under the caption “For Maintainability”.
2. This petition has been filed as against the fair and decreetal order passed in I.A. No.1255/19 in I.A. No.232/15 in FCOP No.186/2014 on the file of the Family Court, Salem. The said I.A. No.1255/19 was the https://www.mhc.tn.gov.in/judis/ 1 C.R.P.SR.No.28786 of 2020 off-shoot of I.A. No.232/15, which was filed by the respondent/wife claiming interim maintenance. The said I.A. No.232/15 resulted in the passing of an exparte decree as the petitioner herein was repeatedly absent.
3. The issue in the present case relates to the petition in DVOP No.38/14 on the file of the Addl. Mahila Court, Salem, which was filed by the wife and in the said petition, CMP No.887/15 was filed seeking interim maintenance for herself and her daughter. The Court, vide order dated 15.3.15, directed payment of Rs.3000/- as interim maintenance to the respondent/wife and the child. In I.A. No.232/15, interim maintenance in a sum of Rs.5,000/- was ordered vide an exparte order dated 8.8.16, as the petitioner remained absent.
4. The petitioner herein, assailed the exparte order of interim maintenance in I.A. No.232/15 by filing I.A. Nos.1252 to 1254/19 to condone the delay in filing the necessary petition to set aside the exparte order, which was dismissed by this Court and assailing the said order, three civil revision petitions have been filed for maintainability, which https://www.mhc.tn.gov.in/judis/ 2 C.R.P.SR.No.28786 of 2020 have been ordered to be numbered by this Court by an order of even date.
5. The present petition, which has been filed by the petitioner, has been returned by the Registry on the question of maintainability, by raising the following objection :-
6. To the said objection raised by the Registry, the petitioner, while representing the papers, has submitted the following endorsement :-
7. Still entertaining a doubt as to the maintainability of the present petition, the matter is listed before this Court for deciding the maintainability of the present petition.
8. Learned counsel appearing for the petitioner submits that the pivotal objection of the Registry pertains to the order being passed by the Court below under Order IX Rule 13 CPC , which is appealable u/s 19 of the Family Courts Act. However, it is the submission of the learned counsel for the petitioner that the dismissal of the petition, which is the subject matter of the present petition before this Court is relatable to an https://www.mhc.tn.gov.in/judis/ 3 C.R.P.SR.No.28786 of 2020 order passed in the condone delay application in I.A. No.1253/19 and the order passed in the said petition had enured to the present petition as well and there being no separate order passed in I.A. No.1255/19 on merits, no challenge to the same is maintainable u/s 19 and only remedy open to the present petitioner is by way of filing the revision before this Court.
9. Heard the learned counsel appearing for the petitioner and perused the office note submitted by the Registry as also the endorsement made by the petitioner, which have been extracted above.
10. It is borne out by record, which is not in dispute that as against the order of interim maintenance, passed in I.A. No.232/15, the said exparte order was put in issue by filing petitions in I.A. Nos.1252 to 1254/19 to condone the delay in setting aside the exparte order, which came to be dismissed for reasons recorded by the Court below. In pursuant to the filing of DVOP No.38/14 in which CMP No.887/15 was filed seeking interim maintenance, interim maintenance was ordered, which was again questioned by filing I.A. No.1255/19, which was also dismissed, leading to the filing of the present petition. https://www.mhc.tn.gov.in/judis/ 4 C.R.P.SR.No.28786 of 2020
11. Though it is contended by the learned counsel for the petitioner that the objection raised by the Registry relating to maintainability in filing the civil revision, is wholly misconceived, as no order under Order IX Rule 13 has been passed, which alone is appealable u/s 19 of the Family Court Act, as the order passed in CMP No.887/15 is only on the basis of the order passed in I.A. Nos.1252 to 1254/19 and no separate reasoned order has been passed and, therefore, only a civil revision petition is maintainable, however, the said contention does not merit acceptance for the simple reason that the trial court, which heard I.A. No.1255/19, had adverted to the exparte decree passed in I.A. No.232/15 and also adverted to the dismissal of I.A. No.1252/19 on the said date in and by which the prayer of the petitioner for condonation of the delay to set aside the exparte decree was dismissed. When the Court below has adverted to the order passed in I.A. No.1252/19, which is the backbone on the basis of which the present I.A. No.1255/19 was also dismissed, the reasons given for the dismissal of I.A. No.1252/19 would squarely stand attracted to the present I.A. No.1255/19 as well and the order passed in I.A. No.1252/19 insofar as it relates to the reasons given for https://www.mhc.tn.gov.in/judis/ 5 C.R.P.SR.No.28786 of 2020 dismissing the petition for condoning the delay has to be read as part and parcel of the present order in I.A. No.1255/19 and the stand of the petitioner that no separate reasoned order has been given by the court below, which in turn clothes the petitioner to file an appeal u/s 19 of the Family Courts Act is wholly misconceived and deserves to be rejected.
12. The order passed in I.A. No.1252/19, which is the substratum of the order passed in I.A. No.1255/19, which has been put in issue, and both the orders have to be read parallelly as the reason for the order in I.A.No.1255/19 is given in I.A. No.1252/19, of which reference is drawn in I.A. No.1255/19. Therefore, the objection raised by the Registry relating to an appeal remedy available to the petitioner u/s 19 of the Family Courts Act cannot be said to be an illusory remedy, as painted by the learned counsel for the petitioner and, in fact, the said remedy is the correct and legal remedy open to the petitioner, which the petitioner has to pursue.
https://www.mhc.tn.gov.in/judis/ 6 C.R.P.SR.No.28786 of 2020
13. For the reasons aforesaid, this Court holds that the present revision petition is not maintainable and, accordingly, the same is dismissed. Registry is directed to return the copies of the original orders to the petitioner for pursuing the appeal remedy, as stated above, before the appropriate forum before this Court, if so advised.
30.04.2021 Index:Yes/No Speaking order/Non-Speaking Order sbn To The Family Court, Salem.
https://www.mhc.tn.gov.in/judis/ 7 C.R.P.SR.No.28786 of 2020 V.BHAVANI SUBBAROYAN, J.
sbn C.R.P. SR.No.28786 of 2020 30.04.2021 https://www.mhc.tn.gov.in/judis/ 8