Allahabad High Court
Smt Anchal Goyal vs Parag Goyal on 3 December, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Neutral Citation No. - 2024:AHC:189867-DB Court No. - 39 Case :- FIRST APPEAL No. - 1017 of 2024 Appellant :- Smt Anchal Goyal Respondent :- Parag Goyal Counsel for Appellant :- Kiran Kumar Arora Counsel for Respondent :- Aditya Bhushan Singhal, Shadab Husain Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. Heard Sri Kiran Kumar Arora, learned counsel for the appellant and Sri Aditya Bhushan Singhal, learned counsel for the respondent.
2. Present appeal has been filed under Section 19 of the Family Court Act, 1984 (hereinafter referred to as the 'Act'), arising from order dated 4.10.2024 passed by Principal Judge, Family Court, Saharanpur on Application Paper No. 39A/1-3, filed [under Order VI Rule 17 Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC')], by the present appellant in Original Suit No. 323 of 2022 (Parag Goyal Vs. Smt. Anchal Goyal), whereby the learned court below has dismissed the amendment application filed by the present appellant, seeking to introduce the following two paragraphs as paragraph nos. 54अ and 54ब, to her written statement.
"54अ- यह कि पिटिशनर ने माननीय उच्च न्यायालय नैनीताल में रेस्पोन्डेन्ट के विरूद्ध एक याचिका अन्तर्गत धारा 482 सी०आर०पी०सी० (सी-482 नम्बर 781 वर्ष 2024 पराग गोयल बनाम आंचल गोयल) योजित की हुई है। उक्त याचिका अन्तर्गत धारा 482 सी०आर०पी०सी० की कार्यवाही में पिटिशनर पराग गोयल ने अपने अधिवक्ता के मार्फत न्यायालय में यह कथन किया है कि "Learned counsel for the applicant Mr. Karan Anand, on instruction, submits that the applicant is ready to live with the respondent wife"
"54ब- यह कि रेस्पोन्डेन्ट भी सदैव पिटिशनर के साथ रहने को इच्छुक एवं तैयार रही है व वर्तमान में भी पिटिशनर के साथ रहने को तैयार है। इसके अतिरिक्त पिटिशनर के माननीय उच्च न्यायालय नैनीताल में दिनांक 25-06-2024 को किये गये कथन से रेस्पोन्डेन्ट की कथित क्रूरता (यदि कोई हो तो, हालांकि रेस्पोन्डेन्ट को स्वीकार नही है) उपमर्षित (Condone) हो चुकी है, जिस कारण भी पिटिशनर का वाद खण्डित होने योग्य है।"
3. At the outset, a preliminary objection has been raised by learned counsel for the respondent that the present appeal is not maintainable under Section 19 of the Act. For ready reference, Section 19 of the Act to the extent it is relevant to the present proceeding, reads as below:
"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 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 judgement 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."
4. During the course of his submissions, learned counsel for the appellant has also referred to and relied on the provisions of Section 115 CPC as amended and in force in the State of U.P. Section 115 CPC (as in force in the State of U.P.) to the extent relevant to the present discussion reads as below:
"115. Revision - (1) A superior court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court where no appeal lies against the order and where the subordinate court has -
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity."
5. Submission of learned counsel for the appellant is, the issue whether an order rejecting an amendment application is a "case decided" is no longer res integra. A five-judge Full Bench of this Court in Rama Shanker Tiwari Vs. Mahadeo & Ors., (1968) ALJ 109, had the occasion to consider the following question:
"Whether an order passed Under Order VI, Rule 17 of the Code of Civil Procedure, either allowing an amendment or refusing to allow an amendment is a "case decided" within the meaning of Section 115 of the Code?"
6. The provision of Section 115 CPC as was then in force in the State of U.P. read as below:
"115. Revision. - [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears -
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."
7. The question referred was answered by the Full Bench by a majority 4:1. The majority opinion authored by G.C. Mathur, J., reasoned as below:
"4. To hold that an order Under Order VI, Rule 17, CPC is not a "case decided" would result, in many cases, in denying relief to parties where it is most needed and in the perpetuation of gross injustice. The party aggrieved will have to wait till the suit is decided on merits after taking evidence and then raise the question in appeal. If its contention is correct, then the appellate court will set aside the order of the trial court on the amendment application and remand the case for a fresh trial. This will result in unnecessary delay and expense to both the parties. Even though an order allowing or refusing an amendment is a "case decided" this Court will not interfere unless the conditions laid down in Clauses (a), (b) and (c) of Section 115, CPC are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied except by interference at that stage. Most of the other High Courts have also taken the view that an order Under Order VI, Rule 17, CPC is a "case decided"--see Sukumar Chatterjee Vs. Kiran Chandra Mitter, AIR 1964 Cal 439, AIR 1948 258 (Nagpur), Shah Shantilal Chunilal Vs. Shah Shantilal Fulchand and Another, AIR 1963 Guj 195, Damodara Sastry v. Nilgri Sanjiviah AIR 1955 Mys. 141 and Pathikonda Gopala Rao v. Nagiri Pedda Kitamma AIR 1956 AP 138."
(emphasis supplied)
8. However, A.K. Kirty, J., in his minority opinion, reasoned as below:
21. The principal matter which now needs consideration is whether and, if so, to which extent orders allowing or refusing amendment of pleadings fulfill the aforesaid requirements so as to come under the phrase "case which has been decided" in Section 115 of the Code. Plaints and written statements which constitute pleadings are documents over which the parties themselves have complete control. They may make therein any or all averments which may appear to them to be necessary, appropriate or expedient either to support a claim or to contest a claim. Once however, these documents are filed in the Court, the parties cease to have control over them. Nothing therein can be added to, deleted or altered unless permitted by the Court. The power to grant such permission has been expressly conferred on the Court Under Order VI, Rule 17 of the Code. It is a very wide power and its exercise is dependent on the judicial discretion of the Court. It is this discretionary nature of the power that creates the real obstacle in the way of holding that an order allowing or disallowing amendment of a pleading gives rise to a case decided so as to be revisable u/s 115 of the Code. The filing of an application for amendment of a pleading gives rise to a 'case which is decided' as soon as an order allowing or dismissing it is passed. Be it so, but one may pertinently enquire: What is the controversy involving a matter of jurisdiction decided thereby? How has it a direct bearing on the rights of the parties or affected their rights and obligations directly? The required answers are hard to find. Yet to hold that under no circumstances will an order allowing or disallowing an amendment of a pleading give rise to a case decided so as to be revisable u/s 115 of the Code might result in defeating the object and purpose of the section itself. I find it difficult to accept this extreme view although I find it also logically difficult to subscribe to the view that all orders allowing or disallowing amendment of a pleading will be cases decided and revisable u/s 115 of the Code. I may here refer to two decisions of the Supreme Court in which it has been held that even where very wide words have been used in statutes conferring rights of appeal from every order or decision made or given in proceedings arising thereunder they would exclude interlocutory orders which are merely procedural or do not affect the rights or liabilities of the parties--See Shankerlal Aggarwal and Others Vs. Shankerlal Poddar and Others, AIR 1965 SC 507 and The Central Bank of India Ltd. v. Gokul Chand AIR 1967 SC 79 at 800. Thus, I do not find it possible to hold that every interlocutory order passed or every finding or decision given in a proceeding in a court subordinate to the High Court will constitute a case which has been decided so as to be revisable u/s 115 of the Code.
22. The only matter which now remains to be considered is when and under what circumstances an order either allowing or dismissing an application to amend a pleading will be a case decided and revisable. The basic ingredients and the guiding rules furnished by Khanna's (supra) case are not exhaustive or rigid. There is room for elaboration. By way of sequel thereto it seems permissible to propound that the order, finding or decision may also potentially have a direct bearing on the rights of the parties and further that they by their own force either create or eliminate a question of jurisdiction. Therefore, the key to the solution in determining whether an order allowing or disallowing an application for amendment of a pleading will be a case decided is to be sought in the nature of the amendment sought, its direct or likely impact on the rights and obligations of the parties concerned and its immediate or potential effect on the Court's jurisdiction. If the application for amendment of pleading answers to the description affirmatively, order granting it or dismissing it may give rise to a case which has been decided and be revisable u/s 115 of the Code. If the application does not do so, the order granting or dismissing it will not give rise to a case decided revisable u/s 115 of the Code."
(emphasis supplied)
9. Thereafter, the reference was answered in terms of the majority, on the following terms:
"24. The opinion of the majority of Judges constituting the Full Bench is that an order passed Under Order VI, Rule 17 of the Code of Civil Procedure, either allowing an amendment or refusing to allow an amendment, is a "case decided" within the meaning of that expression in Section 115, Code of Civil Procedure."
10. Thus, it has been submitted by learned counsel for the appellant that there can be no doubt that an order deciding an amendment application remains a "case decided". To that extent, such orders would fall outside the scope of the words of limitation used in Section 19(1) of the Act - "interlocutory order".
11. Elaborating, learned counsel for the appellant has next relied on another decision of a three - judge Full Bench of this Court in Kiran Bala Srivastava Vs. Jai Prakash Srivastava, 2005 (23) LCD 1, wherein the following question was referred to the Full Bench:
"Whether an appeal under Section 19 of the Family Courts Act, 1984 would lie against an order passed under Section 24 of the Hindu Marriage Act, for grant of interim maintenance?"
12. At first, that Full Bench relied on the decision of the Supreme Court in Shah Babu Lal Khimji Vs. Jayaben, AIR 1981 SC 1786. It was thus reasoned as below:
"20. In other words, the Apex Court ruled that order or interlocutory order possessing the characteristics and trappings of finality or affecting valuable, rights of the party or deciding important aspects of the trial in main or in ancillary proceedings, will be "judgment".
21. What noticeable in sub-section (1) of Section 19 of the Act of 1984, is that deviating from Section 96 of the Code of 1908 or from sub-section (1) Section 28 of the Act of 1955, it provides for appeals against "judgment". The Code of Civil Procedure, 1908, does not provide for appeal against judgments. It provides for appeals against decrees and orders. Likewise Section 28 of the Act of 1955 also does not provide for appeals against judgments. It provides for appeals only against decrees [see: sub-section (1)] and against certain [see: sub-section (2)]. The question arises as to why the legislature made a departure by providing appeal against judgments-also, under sub-section (1) of Section 19 of the Act of 1984. Not that the legislature was not aware of the established practice or did not know the meaning of the word judgment, given by the Apex Court in Khimji's case (supra)."
13. Thereafter, that Full Bench further considered the term "interlocutory order" in the context of an order passed under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'HMA'). It took note of three decisions of the Supreme Court in Amar Nath Vs. State of Haryana, AIR (1977) SC 2185, Madhu Limaye Vs. State of Maharasthra, AIR (1978) SC 47 and Mohan Lal Magan Lal Thakkar Vs. State of Gujarat, AIR (1968) SC 733. In Amar Nath (supra), the Supreme Court observed as below:
"The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. 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 Section 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 revison 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 Section 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 Section 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."
(emphasis supplied)
14. Further, referring on the decision in Madhu Limaye (supra), the Full Bench further observed as below:
"The said view was reiterated in Madhu Limaye's case with the observation that some kinds of order may fall in between final order" and "interlocutory order" and the bar in sub-section (2) of Section 397 was not meant to be attracted to such kind of "intermediary orders"."
15. Then, considering the meaning to be given to the words "interlocutory orders" used in Section 19 of the Act, the Full Bench also considered the definition of that phrase in Halsbury's Law of England and Central Bank of India Vs. Gokul Chand, AIR (1967) SC 799. Thereupon, that Full Bench made the following pertinent observations:
"27. The argument that appeal against any such order, will delay the disposal of main petition does not appeal to us, so as to give a limited meaning to the word "judgment". In an appeal against any order under Section 24 of the Act of 1955, granting pendente lite maintenance, main proceedings need not necessarily be stayed or held up. The reason is that grant of such maintenance is not to affect the merits of the main petition.
28. The learned Counsel for the respondents has referred to the definition of "interlocutory orders" in Vol. 22 of the third edition of Halsburys Law of England and also to Central Bank of India v. Gokul Chand, AIR 1967 SC 799 and also Amar Nath's case and Madhu Limaye's case (supra), so as to say that order under Section 24 of the Act of 1955 are just steps in aid of the main proceedings and have no existence in dependent of the main proceedings, so will not fall within the definition of the judgment and will be only an interlocutory order. We are of the view that in view of the discussion made above order of pendente lite maintenance has all the characteristics and trappings of the judgment as it decides the valuable rights and liabilities of the parties to the proceedings. In so far as those rights and liabilities are concerned the order is final. The fact that the considerations that matter in granting or refusing pendente lite maintenance under Section 24, have no connection with issues in the main proceedings or the question that even after disposal of application under Section 24, the main petition remains alive for disposal, do not prevent the order under Section 24 from falling within the definition of the "judgment". We are also of the view that the expression "interlocutory order" appearing in sub-section (1) of Section 19 of the Act, 1984 qualify the word "order" only and does not qualify the word "judgment" appearing before the word "order". In other words, if order of pendente lite maintenance is a "judgment" for all legal and practical purposes, it matters, little whether the same is interlocutory or final."
(emphasis supplied)
16. Thereafter, it was held that that order passed under Section 24 of the HMA is a 'judgement' as it involves effect of finality to the pendente lite maintenance awarded, thereunder.
17. Thus, it has been submitted that at present the impugned order deciding the amendment is a 'judgement'. It decides an issue or dispute at present. Though the divorce suit may remain pending, such an order may remain appealable and it cannot be described as a simple interlocutory order.
18. Last, reliance has been placed on the learned single judge decision of this Court in Civil Revision No. 109 of 2019 (Sudhanshu Gupta Vs. Komal Gupta) decided on 25.07.2019. Learned single-judge of this Court reasoned that the order rejecting an amendment application is a "case decided". Therefore, it is not an interlocutory order. Hence, it is appealable under Section 19 of the Act. For ready reference, relevant extract of the said decision, reads as below:
"Section 19 on the other hand starts with a non-obstante clause, namely, "notwithstanding anything contained in the Code of Civil Procedure." It therefore necessarily follows that an appeal lies against every order passed by the Family Court, which is not an interlocutory order, despite any provision of the CPC to the contrary.
The Full Bench decision cited by counsel for the revisionist, namely Rama Shanker Tiwari Vs. Mahadeo and Ors., 1968 (38) AWR 103, holds that an order under Order 6 Rule 17 CPC, either allowing or refusing to allow an amendment, is a "case decided".
Although, this judgment has been relied upon by counsel for the revisionist to submit that the revision is maintainable, in my considered opinion, this judgment necessarily holds against the revisionist. Once it is accepted that an order rejecting an amendment application is a case decided, it necessarily follows that it is not an interlocutory order and is therefore, appealable under Section 19 of the Family Courts Act.
The revision is not maintainable also because sub-section 3 of Section 115 CPC as applicable in U.P. provides that the Superior Court shall not, under this section, vary or reverse any order made, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. Even if the order impugned is set-aside and the amendment application of the revisionist is allowed, the proceedings before the Family Court shall not stand finally disposed of.
Under the circumstances, the order impugned in this revision being a final order and not an interlocutory order, it is clearly appealable under Section 19 of the Family Courts Act and for this reason alone, the revision is necessarily not maintainable. This is so because no revision lies against an order which is appealable.
The contention of counsel for the revisionist that a revision can be filed because the provisions of CPC are applicable to the proceedings under the Family Courts Act, cannot be accepted because even though the provisions of the CPC are applicable to the proceedings before the Family Court, they are subject to and limited by the provisions of the Family Courts Act itself, which means that the provisions contained in the Family Courts Act shall necessarily prevail over the provisions contained in the Civil Procedure Code.
Under the circumstances, this Court has no hesitation in holding that the instant revision is not maintainable.
It is accordingly dismissed."
19. Coming to the facts of the present case, it has been submitted, unless the appellant is permitted to amend her written statement, prejudice would be caused to her defence. Besides the fact that the order rejecting an amendment application is a "case decided", effect of finality would attract to the extent the appellant would have been prevented to plead necessary facts.
20. On the other hand, learned counsel for the respondent would contend, the entire scheme of the Act leaves no matter of doubt that the Family Court proceedings are different from regular civil suit proceedings. The very object of the Act amongst others is to secure speedy settlement of disputes relating to marriages and family affairs. The procedure and pratices and the rights created under CPC apply only to proceedings under the Act, to the extent it permits. Specifically, with respect to the appeals filed thereunder, Section 19(1) of the Act creates a remedy of appeal. At the same time, that provision is notwithstanding anything contained in the CPC. Therefore, the remedies provided under the general enactment, i.e. CPC have been specifically done away and replaced with the remedies of appeal created under Section 19(1) of the Act. Thus, notwithstanding anything contained in the CPC, remedy of appeal has been created against every judgment and order passed by a Family Court, except interlocutory orders. Further, the Act debars any appeal against a consented order. Consented orders apart, in his submission, once the legislature has clearly barred appeals against any judgment and/or order that may be described as an "interlocutory order", there survives no occasion to read/interpret the general law i.e. CPC into the specific provisions of the special law i.e. the Act, even if the impugned order may be described to have rendered a "case decided".
21. To bolster his submission, learned counsel for the respondent has placed reliance on a decision of the Rajasthan High Court in Major Raja P. Singh Vs. Surendra Kumar, 1990 SCC OnLine Raj 411, wherein it has been observed as below:
9. The object of this Special Law of the Family Court Act is to decide the matrimonial cases in a speedy manner. If, the order rejecting or allowing an amendment application will be termed as the case decided for the purpose of this Act and is appealable then, in ordinary course of law the decision of such cases would take years to come to reach the finality of the matter. In order to achieve the object of the Act i.e. speedy settlement of dispute relating to marriage, the purpose of expeditious trial is frustrated. That apart if the legislature intended that all interlocutory order be appealable, it should not have used the word in Section 19 of the Act "not being an interlocutory order" and that is why no appeal or revision has been provided. This Court in D.B. Civil Misc. Appeal No. 107/90 Smt. Vijay Kaur v. Radhey Shyam decided on 1.8.90 has held that the order relating to adjourment cost is an interlocutory order and appeal is not maintainable u/sec. 19 of the Act, in this view of the matter, the order dated 6.4.1989 cannot be termed finally deciding the case i.e. the controversy being settled. The parties can agitate the point in appeal after final disposal of the case by the trial court. In out considered opinion, the allowing or refusing an amendment is an interlocutory order against which no appeal u/sec. 19 of the Act is provided. In conclusion the preliminary objection is sustained and it is held that the order dated 6.4.1989 is an interlocutory order and no appeal lies to this Court.
22. Further, learned counsel for the respondent placed reliance on a division bench decision of the Uttarakhand High Court in Smt. Kanupriya Vs. Ashutosh Agrawal, 2017 AIR Uttaranchal 166. In that case, appeal had been preferred under Section 19 of the Act against an order passed by the Family Court allowing an amendment application, to amend the plaint. The Uttarakhand High Court had the occasion to consider the five-judge Full Bench decision of this Court in Rama Shanker Tiwari (supra) as also other decisions of the Supreme Court in Shah Babulal Khimji (supra), Kiran Bala Srivastava (supra), Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and another, (2010) 4 SCC 772, a decision of the Rajasthan High Court in Major Raja P. Singh Vs. Surendra Kumari, AIR 1991 Rajasthan 133 and another decision by the Kerala High Court in Thankappan Nair Vs. Prasannakumari & others in M.F.A. No. 1760/1994-B, decided on 30.06.1995 as also the decisions of the Supreme Court in Amar Nath (supra), Madhu Limaye (supra) and V.C. Shukla Vs. State, AIR 1980 SC 962. Thereafter, the Uttarakhand High Court reasoned as below:
"Therefore, it can be seen that there is no uniform understanding of the word "interlocutory order". The word assumes the meaning from the context of the statute and the purpose of the statute. We have already noticed that the Apex Court in (1974) 2 SCC 387 took the view that an order of amendment can, in certain situations, be treated as a judgment. The court took the view that, if the amendment merely allows the plaintiff to state a new cause of action or ask a new relief or include a new ground of relief, all that happens is that it is possible for the plaintiff to make further contentions. The court does not decide the correctness of the contentions at that stage. It was found that such amendment merely regulates the procedure applicable. It does not decide any question touching the merit of the controversy. In a case, where, however, the defence of immunity available to the defendant is taken away in the matter of limitation, it becomes a judgment. That case, as already noticed, related to an intra-court appeal. Here, we are concerned with the Family Courts Act. Amendments of pleadings are of different kinds. If an appeal is allowed against amendments ordered, one way to look at it is that the matter would be decided at that stage and he does not have to wait for an opportunity, which he, undoubtedly, has to challenge the order of amendment in the course of the appeal against the final order, which would be passed. It could be that, at that stage, if the appellate court finds that the amendment was wholly unjustifiably allowed, the matter may merit a remand. If the intention of the Legislature in excluding interlocutory orders is to expedite the proceedings in the matrimonial causes, will not such a view hamper the object sought to be achieved by the Legislature? Even when a court allows an application for 2017:UHC:4732 13 amendment, it is settled law that the court does not sit in judgment over the correctness or the merit of the pleadings. The amended proceedings only will provide the framework within which the trial would proceed, evidence adduced, arguments canvassed and decision rendered. Further, the party has always a right to challenge the order of amendment in the appeal from the main judgment. Also, it is not irrelevant to notice that the party can, in appropriate cases, invoke the jurisdiction under Article 226 of 227. The advantage of taking the view that an order of amendment will not be treated as a judgment and will be treated only as interlocutory order is that the purpose of the Family Courts would, in one sense, be advanced, inasmuch as, the delay which attends the challenge of proceedings and before the appellate court would stand obviated. Ordinarily, amendments are to be allowed liberally. Therefore, an order allowing an amendment is rarely interfered with."
(emphasis supplied)
23. Thus, in his submission, the decisions relied upon by learned counsel for the appellant are distinguishable. In any case, the decision of the learned single judge in Sudhanshu Gupta (supra) does not lay down the correct law. Therefore, the present appeal is not maintainable and it may not be entertained.
24. Having heard learned counsel for the parties and having perused the record, in the first place, the five - judge Full Bench in Rama Shanker Tiwari (supra) involved a completely different issue - whether an order rejecting or allowing an amendment application is "case decided" within the meaning of that phrase used in Section 115 CPC as was then in force in the State of U.P. The Full Bench answered the question in the affirmative by 4:1 majority and held that such an order is a "case decided". Therefore, the issue decided was-though an order passed under Order VI Rule 17 CPC may not be a judgement but it would amount to a "case decided" as may make it amenable to revision jurisdiction of the High Court, under Section 115 CPC. It was not relevant to that decision and the Full Bench did not deal with the issue whether such an order may be described as an "interlocutory order". Even then, it was noted-especially in the minority opinion of A.K. Kirti, J. that an order allowing or disallowing an application for amendment of a pleading may or may not be treated to be a "case decided", after considering if that order has a direct or likely impact on the rights or obligations of the parties concerned or its immediate or potential effects on the court's jurisdiction. Only if the application of amendment of pleading answers that description affirmatively, the order granting or dismissing such amendment may be revisable.
25. The dissent appears to have arisen in Rama Shanker Tiwari (supra) springing from the later part of the Section 115 CPC that provided for the circumstances in which the revisional jurisdiction could be exercised by a superior court i.e. in cases of non-existing jurisdiction or failure to exercise jurisdiction or exercising of jurisdiction illegally or with material irregularity.
26. In the three-judge Full Bench decision of this Court in Kiran Bala Srivastava (supra), the issue was considered in the context of an order of completely different nature. There, the issue arose whether an order providing for pendente lite maintenance allowance in terms of Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as "HMA") is an "interlocutory order" against which no appeal may lie under Section 19 of the Act. After recognizing the difference between a final order and an interlocutory order, the Full Bench reasoned that an order passed under Section 24 of the HMA is not an "interlocutory order". It agreed with the earlier division bench of the Court in Avadhesh Narain Srivastava vs Archna Srivastava, 1990 LLJ 183 wherein it had been observed as below:
"No doubt, that the impugned order has been passed by the Family Court in the proceedings for restitution of conjugal rights which are pending before it and are yet to be finally disposed of by that Court but that in it self does not mean that the impugned order or any order passed during the pendency of the proceedings will be an order of interim nature or an interlocutory order. Further Section 24, under which the impugned order has been passed, does not provide that the order passed under this section will be an interlocutory order or an interim order. All that the section goes to signify is that the order is to be for maintenance and litigation expenses during the period of pendency of the proceedings before the Family Court. But the maintenance and litigation expenses though for the interim period stood finally deter mined by the Family Court on the application file by the respondent under Section 24 of the Act. The Family Court did not indicate that it was passing the impugned order as an interlocutory order for being confirmed or recalled under a subsequent order in the same proceedings. The order has been passed finally by the Family Court on the question of grant of pendente lite maintenance and litigation expenses. Such an order cannot be considered as an interlocutory order. Same view was taken by Rajasthan High Court in the case of Sanjeev Kumar Pareek v. Shubh Laxmi Paraak, (1989) 1 Divorce & Matrimonial Cases 450."
(emphasis supplied )
27. The reasoning that prevailed with the Full Bench in Kiran Bala Srivastava (supra) was-an order possessing characteristics and trapping of finality or affecting valuable rights or deciding important aspects of the trial may continue to be described as a judgement and may not be treated to be an interlocutory order, simplicitor, not involving right of appeal there against. Only orders that are steps-in-aid of the main proceedings have no existence independent of the main proceedings, may continue to be described as "interlocutory orders", entailing no right of appeal.
28. That reasoning resonates in the decision of a division bench of the Uttarakhand High Court in Smt. Kanupriya (supra). After considering the Full Bench decisions of this Court in Rama Shanker Tiwari (supra) as also Kiran Bala Srivastava (supra) and the decision of the Rajasthan High Court in Major Raja P. Singh (supra), it was observed, generally in dealing with the amendment applications, the Court does not decide the correctness of the contentions at that stage. To that extent, the orders passed on the amendment applications may remain procedural orders. They do not decide any issue touching the merits of the controversy. At the same time, it was observed, if such order has the effect of taking away the defence of immunity in the matter of limitation, it may be described as a judgement. Thereafter, it was further noted, in the context of proceedings arising under the Act, the orders passed on amendment applications only provide the framework within which the trial may proceed, evidence may be adduced, submissions may be advanced and decision may be rendered. The correctness of orders passed on amendment application may remain open to challenge by the aggrieved party-in appeal against the main judgement. In any case, such orders may remain amenable to proceedings of the Court under Article 226 read with Article 227 of the Constitution of India. It then concluded that the order passed on an amendment application in proceedings under the Act is rarely interfered.
29. The view thus taken by the Uttarakhand High Court has been considered by a learned single judge of this Court in Jyoti Vs. Ankit Dubey, (2023) SCC OnLine All 4506. There, the order had been passed by a Family Court allowing an amendment to the plaint. It was challenged by filing a revision. In that, learned single judge observed as below:
"19. It must be noticed that both in Major Raja P. Singh and Kanupriya, the Court had before it the issue whether an application seeking amendment, rejected in one case by the Family Court and allowed in the other, would constitute a judgment within the meaning of Section 19 so as to be amenable to appeal under the aforesaid provision. The Rajasthan High Court and the Uttarakhand High Court both have laid down law mindful of the fact that the object of the Family Court is to provide speedy justice in causes matrimonial or those relating to the family. Their Lordships have been conscious that permitting interlocutory challenge to orders granting or refusing amendment, would work to place fetters on the fast-tracked procedure contemplated by the Statute. It has also been noticed that the person who is aggrieved by the order granting amendment can in the appeal from the final judgment, if the event goes against him/her, assail that order too. No doubt, their Lordships of the Division Bench of the Uttarakhand High Court have found a dichotomy between classes of amendments, which may or may not constitute a judgment within the meaning of Section 19. This Court need not dilate much on the subtlety of principle about orders granting or refusing amendment being amenable to an appeal under Section 19 of the Act of 1984. This is so because in the present case that is not the point. The point here is whether from an order granting or refusing an amendment application by the Family Court, a revision lies to this Court under Section 115 of the Code. In the Rajasthan decision, there is a remark that the legislature did not intend all interlocutory orders passed by the Family Court to be appealable under Section 19 and that is why no appeal or revision has been provided under the Act of 1984.
20. The moot question, therefore, is whether that kind of a power can be inferred to be available to this Court under Section 115 of the Code. A reading of Section 10 of the Act of 1984 shows that the provisions of the Code are generally made applicable, but subject to other provisions of the Act of 1984 and the Rules. A juxtaposition of this provision with sub-Section (5) of Section 19 shows that sub-Section (5) expressly says that except as provided under sub-Sections (1) to (4) of Section 19, no appeal or revision would lie to any Court from any judgment or decree of a Family Court. The aforesaid provision expressly bars all kinds of revisions except an appeal envisaged under Section 19(1) of the Act of 1984 or a revision from a final order passed under Chapter IX of the Code of Criminal Procedure, 1973. No other kind of revision is envisaged by the Act of 1984. Thus, upon a reading of Sections 10(1) and 19(5) of the Act of 1984 together, the position that emerges is that no revision from an order of the Family Court is competent except one that arises from a final order passed under Chapter IX of the Code of Criminal Procedure. The party, therefore, aggrieved by an interlocutory order may question it in appeal, if it has the trappings of a judgment, or so to speak is an order of moment pronouncing upon rights of parties. It is dwelling on that principle that the Full Bench of this Court in Smt. Kiran Bala Srivastava v. Jai Prakash Srivastava, (2005) 23 LCD 1 held that an order under Section 24 of the HMA granting maintenance pendente lite is a judgment, which is appealable under Section 19 of the Act of 1984.
30. In our considered opinion, the rule to be applied is clear. In the first place, generally speaking the orders passed allowing or rejecting the amendment application are not orders of the moment. They do not decide any merit issue. Such orders and their correctness remains open to question and therefore appealable at the stage of appeal against the final judgement that may be passed in any proceeding instituted under the Act. There is no underlying reasoning - in the general scheme of the Act and specifically in view of express language of Section 19 of the Act, there is no legislative intent to maintain a twin right of appeal/revision-one by way of general right of appeal/revision to a party against any order passed allowing or rejecting an amendment application and another against the final order.
31. The only exception to that general rule may arise and such an order may be appealed against if it is shown to the appeal court that the order falls in the exception to the general rule. Thus, if an order is such as may be shown to decide an issue or be an order of the moment or such as may be shown to have caused the effect of deciding or decisively affecting any substantive right or liability of a party, at that stage itself with a flavour of permanence, or as may have the effect of causing any final consequence that may be experienced or suffered by the aggrieved party, notwithstanding pendency of the main proceeding, the right of appeal may arise against such an order to the aggrieved party, in those peculiar facts - by way of an exception and not by way of a general rule.
32. To that extent, we find ourselves in agreement with the reasoning of the Uttarakhand High Court in Smt. Kanupriya (supra) and Rajasthan High Court in Major Raja P. Singh (supra). Also, to that extent, we are unable to endorse or persuade ourselves to the view of the learned single judge in Sudhanshu Gupta (supra). As discussed above, Rama Shanker Tiwari (supra) was a case arising under Section 115 of the CPC as it then existed. The issue involved in that reference was - if an order deciding an amendment application may be described as a "case decided". Clearly Sudhanshu Gupta (supra) does not lay down the correct law.
33. Insofar as Section 115 CPC as it then existed, clearly provided for remedy of revision against a "case decided", it was reasoned by the five - judge Full Bench of this Court that such an order would be revisable. In the first place, the phraseology of Section 19 of the Act does not use or refer to the phrase "case decided". That concept is alien to the Act. Here, only a remedy of appeal has been provided against a "judgment" and/or an "order", not being an "interlocutory order".
34. Appeal is a creature of statute and no right of appeal inheres in any party unless specifically provided for by a statute as held in Vijay Prakash D. Mehta vs Collector of Customs, (1988) 4 SCC 402. Therein, relying on the parent law - Hoosein Kasam Dada (India) Ltd. v State of Madhya Pradesh, AIR 1953 SC 221, it was observed as below:
"7. In the impugned order the Tribunal noted the several abortive and defective attempts made to get extension of time to deposit the security. Firstly, the prayer was to accept the deposit of Rs 35,000 and secondly, to accept the deposit of Rs 60,000 in two months. The Tribunal took into account the probability of the prima facie case of the appellants. The appeals were filed two years ago. After taking into consideration these factors, the Tribunal rejected the prayer for reduction. It was contended that this was wrong. Shri M.S. Ganesh, learned advocate for the petitioner, pleaded that in a situation of this type the condition for deposit of penalty was bad as it whittled down the appellants' right of appeal. This, in our opinion, is incorrect. Shri Ganesh tried to contend that the right of appeal is being whittled down by the procedure followed in this case. He drew our attention to certain, observations of this Court in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [(1953) 1 SCC 299 : AIR 1953 SC 221 : 1953 SCR 987 : (1953) 4 STC 114] . There this Court held that when the right to appeal vests, change of law after initiation of proceedings in lower court would not divest the vested rights of the appellant. The right of appeal is a matter of substantive right and not merely a matter of procedure, and this right becomes vested in a party when the proceedings are first initiated in, and before a decision is given by, the inferior court and such a right cannot be taken away except by express enactment or necessary intendment.
9. Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant.
13. It is not the law that adjudication by itself following the Rules of natural justice would be violative of any right -- constitutional or statutory without any right of appeal, as such. If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant. The proviso to Section 129-E of the Act gives a discretion to the Tribunal in cases of undue hardships to condone the obligation to deposit or to reduce. It is a discretion vested in an obligation to act judicially and properly."
35. Seen in that light, the two-tier appeal system as also the concept of multiple appeal/revision remedy before a higher Court, in the course of the same proceeding, has been done away under the general scheme of the Act and specifically under Section 19 of the Act - with respect to family disputes. Once the statute has done away with the concept of appeal against "case decided" by specifically excluding that concept from the scope of orders that may be appealable or revisable, it would be erroneous on part of the Court to introduce that concept through a process of judicial reasoning. Express language used by the legislature that is unambiguous in letter and spirit, must prevail. There is no room to adapt it or to apply judicial interpretation offered to different language used under another statute.
36. Then, we further opine, in the context of main proceeding pending, the term "interlocutory order", is the genus. Any order causing the effect of "case decided" may be a species of that genus - "interlocutory order". Such species of orders may be passed during the course of such a judicial or quasi-judicial proceeding. The fact that the legislature has used the phrase "interlocutory order" and not "case decided" while excluding appeals against a type of orders passed by Family Courts, the ratio arising on the interpretation of the phrase "case decided" remains extraneous to our discussion. The whole having been excluded, there is no inherent reasoning to save its part.
37. Coming to the facts of the present case, it is seen that the appellant only sought to introduce (by way of amendment), a fact pleading that the respondent had earlier agreed or offered to revive his matrimonial relationship. To that extent and for that purpose, she sought to rely on some evidence allegedly led by the respondent, in collateral proceedings. The fact that the learned court below has rejected the application seeking such amendment does not decide any rights or liabilities of the parties. It is not an order of the moment. It does not deal with or decide any substantive rights of the parties and does not prejudice the substantive rights of the appellant involved in that proceeding before the learned court below.
38. Thus, applying the test laid down by us, the order impugned in this appeal is purely an "interlocutory order"/procedural order. It may never be appealed against.
39. Then, Section 23A of the HMA reads as below:
"23A. Relief for respondent in divorce and other proceedings. - In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]"
40. Thus, besides the opportunity to lead evidence at appropriate stage, it may remain open to the appellant to rely on the previous statement of the respondent recorded in collateral proceeding, in accordance with law. The appellant may have further rights in terms of Section 23A of the HMA, noted above.
41. Leaving those courses open to the appellant, the appeal is dismissed. No order as to costs.
Order Date :- 3.12.2024
Noman/Prakhar/Abhilash/SA
(Donadi Ramesh, J.) (S.D. Singh, J.)