Orissa High Court
Swarna Prava Tripathy And Anr. vs Dibyasingha Tripathy And Anr. on 5 May, 1998
Equivalent citations: AIR1998ORI173, I(1999)DMC316, 1998(II)OLR1, AIR 1998 ORISSA 173, 1998 A I H C 4573, (1998) 86 CUT LT 368, (1999) 1 DMC 316, (1999) 1 EASTCRIC 687, (1998) 2 HINDULR 698, (1999) 1 MARRILJ 628, (1998) 2 ORISSA LR 1
Bench: S.N. Phukan, A. Pasayat, P.K. Tripathy
JUDGMENT Pasayat, J.
1. Doubting correctness of a decision rendered by a Division Bench of this Court in Civil Appeal No. 17 of 1996 decided on 8-10-1996 regarding maintainability of appeal under Section 19 of the Family Courts Act, 1984 (in short, the 'Act') against an order of interim maintenance in terms of Sections 24 and 25 of Hindu Marriage Act, 1955 (in short, 'Marriage Act'), a reference has been made by another Division Bench for adjudicating the following question :
"Whether an order granting interim maintenance pendente lite is appealable under Section 19 of the Family Courts Act, 1984? If it is held that the appeal is not maintainable, what remedy is available to the aggrieved party."
Divergent views expressed by different High Courts were noted.
2. In Civil Appeal No. 17 of 1996 it was held by the Division Bench that an order made by a Family Court under Section 24 of the Marriage Act is appealable under Section 19 of the Act, on, the ground that it has finality attached to it, and it is not an interlocutory order. Section 19 appearing in Chapter V of the Act provides for appeal and revision, and reads as follows :
"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 C ode 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 :
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 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 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."
On a plain reading of the aforesaid provisions, it is clear that Sub-section (5) of Section 19 of the Act clearly stipulates that except what has been provided for in Sub-sections (1) to (4), no appeal or revision shall lie to any Court from any judgment, order or decree of the Family Court. Section 19(2) also stipulates that no appeal shall tie from a decree or order passed by the Family Court with consent of the parties, Against an interlocutory order, no appeal would lie if it is passed under the Code of Civil Procedure, 1908 (in short, 'CPC) or under the Code of Criminal Procedure, 1973 (in short, 'Cr. P. C.'). So far as power of revision is concerned, subsection (4) of Section 19 is relevant. It provides that 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 Cr. P.C. 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. Appellate jurisdiction has been conferred on the High Court under Section 19(1) of the Act and apart from that no appeal or revision is maintainable from any judgment, order or decree of a Family Court except what has been provided in Sub-section (4) relating to order passed under Chapter IX of the Cr. P. C. not being an interlocutory order.
3. The main controversy is whether an order passed under Section 24 or 26 of Marriage Act is an interlocutory order or a final order. As noted above, there are divergent of views expressed by different High Courts.
4. A learned single Judge in Chandramani Singh v. Premalata Mohanty, (1993) 2 Orissa LR 553, earlier held otherwise. Conclusions similar to those arrived at in Chandramani Singh's case (supra) were earlier arrived at in Smi. Sudhirlata Dei v. Krushna Chandra Mohanty, (1990) 1 Orissa LR 301. It is to be indicated that these decisions do not appear to have been noticed by the Bench hearing the Civil Appeal as there is no reference to these decisions in the judgment. Several decisions of different High Courts have been brought to our notice where the Courts have held that the order for interim maintenance is interlocutory in character. Some of the decisions are Dillip Chhaganlal Patel v. State of Maharashtra, AIR 1983 Bom 128; Laxmibai v. Ayodhya Prasad, AIR 1991 MP 47; Siramal Burad v. Shakuntala Devi Burad, (1994) 1 DMC 543; Narendra Kumar Mehta v. Smt. Suraj Mehta, AIR 1981 Andh Pra 100; Rakesh Chandok v. Vinodi, AIR 1982 J & K 95; Rajpal v. Smt. Dharmavati, AIR 1980 All 350; Jang Bahadur Syaf v. Smt. Mukta Syal, AIR 1986 Delhi 422; and Smt. Satish Bindra v. Surjit Singh Bindra, AIR 1977 Punj & Har 383.
5. In Civil Appeal No. 17 of 1996 strong reliance was placed on certain observations made by the Apex Court in Shankarlal Aggarwala v. Shankarlal Poddar, AIR 1965 SC 507; The Cen-
tral Bank of India Ltd. v. Gokel Chand, AIR 1967 SC 799; Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786. It is to be noted that one of the Hon'ble Judges who was a party to the aforesaid judgment, in Civil Revision No. 94 of 1996 disposed of on 20-2-1997 held that the Civil Revision was not maintainable against an order under Section 24 of Marriage Act by observing that the expression 'order' in sub-section (5) of Section 19 of the Act does not exclude an interlocutory order. Reference was made to a decision of Kerala High Court in Kanhikkanthoppu Parambil Radha v. Kondarappatt Velayudhan. AIR 1994 Ker 412, where it was observed that meaning of Sub-section (5) of Section 19 of the Act is such that same is capable of taking in not only final order but also interlocutory order.
6. At this juncture it is necessary to pigeonhole which can be called interlocutory orders and final orders. Interlocutory orders are of various kinds; some like orders of slay, injunction, or receiver, are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation, the principle of res judicata does not apply to the findings on which these orders are based, though if application were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court. An order may be final for one purpose and interlocutory for another. The expression 'interlocutory order as used in restricted and not in any broad or artistic sense, denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties, in Webster's Third International Dictionary, the expression 'interlocutory' has been defined as, 'not final or definite, made or done during the progress of an action; intermediate, provisional'. The emphasis is, therefore, at the stage when the order is passed. Interlocutory stage is decidedly the state between the cognisance taken by the Court and the judgment pronounced. The interlocutory order is supplemental proceeding which is a means to an end and not an end itself. The word 'interlocutory' means according to the import of the dictionary 'intermediate' and the interlocutory order is one passed during the progress of the proceeding that is to say, interlocutory order must be an order passed after the initiation of the proceedings and before the final order disposing of the matter. In New Webster's Dictionary, College Edition, the meaning given is 'of the nature of, pertaining to, or occurring in, conversation or dialogue; spoken intermediately, as interlocutory conversation interjected into the main speech. Law, pronounced during the course of an action, as a decision or order, not finally decisive of a case, pertaining to a provisional decision.' Interlocutory orders are steps taken towards the final adjudication for assisting the parties in the prosecution of their case in the pending proceedings. See Central Bank of India v. Gokul Chand, AIR 1967 SC 799. Interlocutory inter alia means not that which decides the case, but that which only settles some intervening matter relating to the cause. As interlocutory order is one which is made pending the cause and before a final hearing on the merils. An interlocutory order is made to secure some end and purpose necessary and essential to the progress of the suit, and generally collateral to the issues formed by the pleadings and not connected with the final judgment.
7. The position in law relating to the controversy at hand has been indicated in Ramesh Chander Kaushal v. Mrs. Veena Kaushal, AIR 1978 SC 1807 as follows (Para 6);
"Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai did, that a final determination of a civil right by a civil Court must prevail against a like decision by a criminal Court. But here two factors make the principle inapplicable. Firstly, the direction by the Civil Court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite, under Section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reason-
able. Secondly, this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication."
8. In view of the law as laid by the Apex Court, the inevitable conclusion is that an order passed under Section 24 or 26 of Marriage Act is an interlocutory order and as such, no appeal would lie in terms of Section 19(1) of the Act. The question is whether revision would lie. In view of what has been stated in Sub-section (5), revision would not lie.
9. The residual question is remedy available to affected parties in respect of interlocutory orders. In appropriate cases, writ application would lie, to be dealt with under Article 227 of the Constitution of India, as observed by the Apex Court in Mahadeo Savlaram Shelke v. Pune Municipal Corporation, (1995) 3 SCC 33 : (1995 AIR SCW 1439 at p. 1441). Same reads as follows :
"Shri Rajinder Sachar, learned Senior Counsel for the appellants contended that under Section 115, C.P.C. High Court has power of revision where the appeal is not provided for either to it or subordinate Court. Since the Joint Judge had exercised the appellate power, by operation of Section 115(2), the High Court was devoid of jurisdiction to exercise the revisional power. When statutory prohibition was imposed by CPC which is a more expeditious and efficacious remedy, the exercise of jurisdiction by the High Court under Article 226 was not warranted. At this juncture it is necessary to point out that the High Court exercised its power under Article 227 and not either under Article 226 or under Section 115. CPC. Even otherwise the bar under Section 115(2) is to exercise revisional power where the party is provided with right of appeal to the High Court or "the subordinate Court against the impugned order. It is not a bar to exercise revisional power under Section 115(1) against appellate order. The ratio in Aundal Ammal v. Sadasivan Pillai, (1987) 1 SCC 183 : (AIR 1987 SC 203) is that no second revision under Section 115(1) would lie against rcvisional order of the subordinate Court."
It is, however, to be noted that power under Article 227 of the Constitution was held as not to be exercised in a routine manner. Power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keep-ing the subordinate Courts and Tribunals within bounds of their authority, and not for correcting mere errors. A mere wrong decision without anything more is to attract jurisdiction of High Court under Article 227. The supervisory jurisdiction conferred under the said Article is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority. In exercising the supervisory power, the High Court does not act as an appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors in the decision. The power of superintendence being extraordinary is to be exercised most sparingly and only in appropriate cases. The power of superintendence is not intended to confer in the High Court an unlimited prerogative to interfere-in every case where a wrong decision has been arrived at by a judicial or quasi-judicial Court or Tribunal, either on fact or in law. The High Court will refuse to issue any writ in the event it is found that substantial justice has been done to the parties or in larger interest it would not be prudent to issue such a writ.
10. The reference is disposed of accordingly. The matter be placed Before the Division Bench for hearing.
S.N. Phukan, C.J.
11. I agree P.K. Tripathy, J.
12. After going through, I entirely agree with the findings and conclusion in the leading judgment written by Hon'ble Sri A. Pasayat. J. But so far as the answer to the part of the reference that "whether an order granting interim maintenance pendente lite is appealable under Section 19 of the Family Courts Act, 1984" is concerned, the following view is added to the findings recorded in the above leading judgment.
13. It is so well settled a position of taw that support of no authority is needed to say that an appeal is a creature of the statute and it cannot be assumed when the statute does not expressly provide. Section 19 of the Family Courts Act. 1984 (in short, 'the Act 1984') while prescribing for appeals against judgment or order has made an exception in not providing for right of appeal to the cases of (i) interlocutory orders; (ii) decree or orders passed on consent of both the parties and
(iii) a consented order passed under Chapter IX of the Code of Criminal Procedure, 1973, such statutory provision debarring an appeal has been expressly restated in sub-section (5) of Section 19 of the Act. 1984.
14. Section 24 of the Hindu Marriage Act, 195.5 (in short, 'Act 1955') gives jurisdiction to the Court to pass order for pendente lite maintenance and litigation expenses, in appropriate case, on application being made by a party to the proceeding. Sub-section (1) of Section 28 of the Act provides that all decrees passed in any proceeding under that law are appealable. However, sub-section (2) while providing for appeal against order under Sections 25 and 26 of the Act, 1955 does not make order Under Section 24 of the Act appealable. Similar provisions also exists with respect to proceedings under the Special Marriage Act, 1954 which is clear from a bare perusal of the provisions in Sections 36 to 39 in that Act. The aforesaid deprivation of the forum of appeal to an order of interim maintenance during the pendency of the matrimonial proceeding is obviously with a view that such orders are interlocutory. I entirely agree with the analysis made and finding recorded in the leading judgment regarding the term 'interlocutory order' vis-a-vis an order under Section 24 of the Act, 1955.