Delhi High Court - Orders
Parul Nahar vs Soumitro Kumar Nahar on 2 December, 2020
Author: Hima Kohli
Bench: Hima Kohli, Subramonium Prasad
$~04
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT.APP.(F.C.) 82/2020
PARUL NAHAR ..... Appellant
Through Mr. Mehmood Pracha, Advocate.
versus
SOUMITRO KUMAR NAHAR ..... Respondent
Through Ms. Haripriya Padmanabhan,
Advocate with Mr. Attin Shankar Rastogi, Ms.
Rinky Khubani, Ms. Gayatri Verma and Mr.
Archit Chouhan, Advocates.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 02.12.2020 HEARD THROUGH VIDEO CONFERENCING MAT.APP.(F.C.) 82/2020 & C.M. No.9950/2020 (by the appellant for stay)
1. The present appeal is directed against the order dated 22.01.2020, passed by the Principal Judge (South Family Courts, Saket, New Delhi) dismissing an application filed by the appellant/wife under Order XIII Rules 1, 3 and 4 CPC and Rule XVIII of Delhi High Court Rules read with Section 151 CPC.
2. The appellant/wife had prayed for the following reliefs from the learned Family Court:-
" (a) Allow the present application and follow the procedure laid down in the Code of Civil Procedure and Delhi High Court Rules for Practice in Trial of Civil Suits;MAT.APP.(F.C.) 82/2020 Page 1 of 15
(b) Allow the present application and to revise the record of the present case before its final disposal as per Rule XVIII of Delhi High Court Rules;
(c) Ignore all the documents which have not been formally admitted in evidence from the side of the Petitioner while deciding the present petition"
3. The relevant averments made in the application are extracted below:-
7. That further bare perusal of the documents will show that there are innumerable discrepancies in the identification of various documents as described in evidence by way of affidavit of the Petitioner, and the corresponding documents contained in the court file for example page serial numbers are not matching in accordance -with the pleadings. Further, the exhibits are not numbered as stated in the evidence on affidavit of the plaintiff. Also the pages mentioned in the evidence by way of affidavit are missing and there is discrepancy in sequence of pagination and anomalies e.g. (1)serial number on pages in the pleadings of the petitioner are not in sequence (2) similar serial number written on various pages (3) some pages are un-numbered and missing (4) serial number of most of the description are mismatched (5) documents/pleadings are not signed by the Presiding Officer. All these show that there are serious discrepancies in the court file.
8. That since the documents which are not admitted in evidence cannot be taken into consideration by trail Court all the questions and resultant answers given during oral examination of the witness Respondent cannot be read in evidence. It is pertinent to mention here that the above discrepancy was repeatedly pointed out to the Ld. Local Commissioner and the Ld. Local Commissioner left the MAT.APP.(F.C.) 82/2020 Page 2 of 15 decision of the issue of the admissibility of documents and the validity of the questions asked, on the basis of the said documents to the Hon Trial Court.
Consequently the documents were tentatively given the title "Only for the purposes of identification of it and for convenience of all concerned it is named as Ex. RW-1/D15." All these show that there are serious discrepancies in the court file.
9. That in view of the identification discrepancies as stated above, no reliance whatsoever can be placed on the above mentioned documents which are present in the court file purportedly designated as Ex. PW 1-67 in an omnibus manner.
10. That even otherwise it will be an absolute miscarriage of justice if documents which are wholly inadmissible and having no evidentiary value are considered at all in view of various provisions of law stated above. That even otherwise all the documents which are present in the file and not exhibited and admitted in the evidence as per the mandatory provisions of law including Code of Civil Procedure and Delhi High Court Rules cannot be considered as evidence and have to be completely ignored by this Hon'ble Court as they have not been formally admitted in evidence.
4. The respondent/husband filed a reply in opposition stating that apart from being frivolous and baseless, the application has been moved by the appellant at a belated stage only with an objective of delaying the case. It was stated in the reply that all the documents in question were annexed with the petition for divorce and the reply and were exhibited in accordance with law.
MAT.APP.(F.C.) 82/2020 Page 3 of 155. After hearing both sides and upon a perusal of the documents, the learned Family Court held that merely because the documents were not initialled while being exhibited by the then Presiding Officer, would not make the said documents as inadmissible in law and that this is a case of a mere irregularity which does not go to the root of the case. The learned Family court found that the statement of the respondent/husband (petitioner in the HMA 16/1184) was recorded on 07.04.2014 when he had tendered his affidavit in evidence with the documents. The respondent/husband had re- endorsed his statement on 30.5.2017 and had signed the same, which was left inadvertently unsigned on 07.04.2014.
6. The learned Family court also noted that the order dated 07.04.2014 reflects that the respondent/husband had tendered the affidavit and the documents were exhibited in the presence of the appellant/wife and her counsel. So far as the page numbering of the court record is concerned, it was held that the same was a trivial issue. The Family court found that the documents which were produced for cross-examination, were duly exhibited and the questions pertaining to the said documents were put to the witness. Holding that the appellant/wife had not been able to show as to what prejudice had been caused to her by the alleged discrepancy in the pagination, marking or endorsement of the documents, of which both the parties were aware of, the learned Family court dismissed the application filed by the appellant/wife. The said order dated 22.01.2020 is under challenge in the present appeal.
7. When the appeal came for admission on 16.03.2020, this court had expressed a prima facie opinion that the order appealed against being interlocutory in nature, the present appeal is not maintainable under Section MAT.APP.(F.C.) 82/2020 Page 4 of 15 19 of the Family Courts Act. However, Mr. Mehmood Pracha, learned counsel for the appellant had sought time to file some documents and the matter was adjourned. An early haring application moved by the appellant in October, 2020, was allowed vide order dated 12.10.2020 and that is how the appeal has been taken up today for admission.
8. Mr. Pracha, learned counsel for the appellant/wife contends that the impugned order seriously affects the rights of the appellant. He states that during the cross-examination of the respondent/husband, it has come out that there is no endorsement on the documents to the effect that the originals were seen and returned by the Presiding Judge. In the absence of such an endorsement, it cannot be said with certainty as to what were the documents that were shown to the court. A perusal of the evidence of the respondent/husband and more particularly, question No.7 would show that five letters issued by Ballarpur Industries were produced to show the designation and increments of the respondent/husband and they were exhibited as PW-1/4. There were also letters issued by Ballarpur Industries showing the amounts paid by it to the respondent during 1997-98, 2000-01, 2001-02, 2002-03, 2003-2004 & 2004-05 were exhibited as PW-1/6 (colly). Learned counsel states that a number of documents have been filed by the other side and they have not been paginated and there is no endorsement as to whether the originals of the same had been seen and returned by the Family court and therefore, there is a grave doubt on the veracity of the said documents.
9. Mr. Pracha also places reliance on the order dated 07.04.2014, which records that counsel for the petitioner therein (respondent/husband herein) had tendered his affidavit and the documents had been exhibited but the MAT.APP.(F.C.) 82/2020 Page 5 of 15 order sheet of 30.05.2017 records that the statement of PW-1 was not signed by him though it bears the signature of the learned Principal Judge. He has argued that vide order dated 30.05.2017, the Principal Judge, Family court had directed the respondent/husband to endorse his statement which is in violation of the Evidence Act and the High Court Original Side Rules.
10. Much emphasis has been laid on question No.7 addressed to the respondent/husband which reads as under:-
Q.7. I put to you that all the documents tendered by you and marked as Exhibits marked were not signed by the learned Presiding Officer as the originals of the same were not filed or shown to the learned Presiding Officer at the time of tendering evidence.
Ans. I do not recollect it is a matter of record and the record speak for itself. It is wrong to suggest that the documents filed by me are forged and fabricated and therefore the originals have not been filed or shown. Volunteered I am not sure whether originals were shown or not.
11. Mr. Pracha submits that the learned Family court has erred in rejecting the application moved by the appellant/wife and in proceeding ahead with the matter in complete disregard of the Delhi High Court Rules, the CPC and the Evidence Act; that learned Family court failed to appreciate the prejudice caused to the appellant due to the incorrect procedure adopted by it resulting in violation of the principles of natural justice and since a vital right of the appellant has been taken away, the order impugned herein cannot be treated as an interlocutory order and therefore, the appeal as filed, is maintainable.
MAT.APP.(F.C.) 82/2020 Page 6 of 1512. Per contra Ms. Haripriya Padmanabhan, learned counsel appearing for the respondent/husband states that this appeal has been filed only to delay the proceedings before the Family court which are at the stage of final arguments. She draws the attention of this court to the order dated 07.04.2014, on which date, counsel for the respondent/husband had tendered the affidavit of evidence and 67 documents and had got the same exhibited. She points out that on the said date, the appellant/wife (respondent before the Family court) was present with her counsel and no objection was raised by them.
13. Learned counsel for the respondent/husband also draws our attention to the order dated 30.05.2017, when the appellant/wife was present in the court when the respondent/husband was cross-examined. The order dated 30.05.2017 categorically records that the statement of the husband (PW-1) which was recorded on 07.04.2014, was not signed by him though it bears the signatures of Shri Rakesh Siddhartha, the then Principal Judge, Family Court, Saket, Delhi. The order records that a statement which has been signed by the Presiding Officer but not by the witness, can be read in evidence yet, since the respondent/husband had re-endorsed the same, he was permitted to do so in today's date. At that stage, no objection was taken by the appellant's counsel regarding the signatures of the respondent on his affidavits of evidence. It is contended that if she had a grievance, then the appellant/wife ought not to have waited for over two years, to file the subject application.
14. It is further contended that the application has been filed by the appellant/wife only to delay the hearing. She states that the appellant had filed MAT. APPL. No. 303/2018 against an order of the Family court MAT.APP.(F.C.) 82/2020 Page 7 of 15 refusing her an opportunity to cross examine the respondent/husband. Vide order dated 05.12.2018, the High Court had permitted the appellant/wife to get the evidence recorded by the Local commissioner. However, the court did not dispose of the appeal and kept it alive for reporting compliance of the aforesaid order and also to monitor the progress of the case. On 23.05.2019, the Division Bench was informed that the evidence of the appellant/wife had been completed and the matter was listed for arguments on 03.06.2019. Since the matter had ripened for arguments, the Division Bench disposed of the appeal. We are informed by learned counsel that on 03.06.2019, the Family Court Judge was on leave and within a month therefrom, the present application from which the instant appeal has arisen was filed by the appellant/wife and the same came up for hearing on 02.07.2019. It is contended that a perusal of the sequence of the events would show that the appellant/wife does not want the matter to be concluded and the application moved by her is an abuse of the process of law, calculated to prolong the proceedings. She points out that at the time of filing of the documents, as per practice, all the documents were stamped on the reverse by the Family court. There is no occasion to doubt the veracity of the said documents and therefore, no prejudice has been caused to the appellant/wife.
15. The present appeal is one filed under Section 19 of the Family Courts Act (in short, 'the Act'). Section 19 of the Act reads 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 MAT.APP.(F.C.) 82/2020 Page 8 of 15 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 parties2 [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 judgment or order of a Family Court.
(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."MAT.APP.(F.C.) 82/2020 Page 9 of 15
16. A perusal of Section 19(1) of the Act would show that an appeal lies from every judgment or order, not being an interlocutory order passed by the Family Court to the High Court, both on facts and on law. It is well settled that the right of appeal is a creature of the statute. While conferring such a right, a statute may impose restrictions on its scope and ambit and such limitations are to be strictly followed. It is equally well settled that the right of appeal being a creature of the statute, its nature, ambit and width has to be determined from the statute itself. When the language of the statute regarding the nature of the order from which the right of appeal lies, is clear, no statutory interpretation is warranted either to widen or restrict the same. (Refer Raj Kumar Shivhare v. Directorate of Enforcement, reported as (2010) 4 SCC 772.)
17. Section 19 makes it clear that the right of appeal is limited only to assail an order or judgment and not an interlocutory order. The order under appeal has been passed on an application wherein the complaint made by the appellant/wife is that:-
a) The respondent/husband did not sign his affidavit of evidence.
b) The documents were not signed by the then Presiding Officer.
c) The pleadings of the respondent did not have a proper serial number.
d) The pages are un-numbered and missing.
e) There are anomalies in the description and sequence of the documents.
18. While dealing with the scope and ambit of Clause 15 of the Letters Patent of the Bombay High Court, in Shah Babulal Khimji v. Jayaben D. MAT.APP.(F.C.) 82/2020 Page 10 of 15 Kania, reported as (1981) 4 SCC 8, the Supreme Court has observed as under:-
"113..........
(3) Intermediary or interlocutory judgment.-- Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 and have already been held by us to be judgments within the meaning of the letters patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote.
For instance, where the 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 MAT.APP.(F.C.) 82/2020 Page 11 of 15 judgment within the meaning of clause 15 of the letters patent but will be purely an interlocutory order. Similarly, suppose the trial Judge passes an order setting aside an ex parte decree against the defendant, which is not appealable under any of the clauses of Order 43 Rule 1 though an order rejecting an application to set aside the decree passed ex parte falls within Order 43 Rule 1 clause (d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of letters patent. The fact, however, remains that the order setting aside the ex parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench."
115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.
116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the letters patent. Suppose the MAT.APP.(F.C.) 82/2020 Page 12 of 15 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 case [(1974) 2 SCC 387 :
AIR 1974 SC 1719 : (1975) 1 SCR 550] , as discussed above." (emphasis added)
19. The Family court has rejected the application moved by the appellant/wife holding that the objections raised by her do not go to the root of the matter. The instant appeal is not one filed under Article 227 of the Constitution of India but under Section 19 of the Act which does not permit filing of appeals against interlocutory orders. The fact that there is a mis-
match in the markings of the documents does not adversely affect the right of any party. Absence of proper pagination of the documents may at best cause some inconvenience to the court but it does not take away a valuable right of the parties. It is noteworthy that the order dated 07.04.2014, where the documents were exhibited, has not been challenged. In fact, both the parties were present on 07.04.2014, when the said exercise was done. Similarly, the appellant/wife has not challenged the order dated 30.05.2017, wherein the respondent/husband was permitted by the Presiding Officer to sign his statement. The issue as to whether the document had been exhibited MAT.APP.(F.C.) 82/2020 Page 13 of 15 properly or not and whether it is admissible in evidence or not, can not arise at this stage. Anyways, it does not take away the right of the appellant/wife to challenge the same while addressing final arguments. We are of the opinion that the order impugned in the instant appeal is only an interlocutory order and does not decide any valuable rights of the parties. Therefore, the appeal, as filed, is not maintainable.
20. Even otherwise, the appellant/wife has not made out a case on merits also. As correctly pointed out by Ms. Haripriya Padmanabhan, learned counsel for the respondent/husband, the documents were marked on exhibit 07.04.2014, along with the affidavit of evidence of the respondent. Though, the appellant and her counsel were present in court, no objection was taken on the said documents. Similarly, on 30.05.2017, when the respondent/husband was re-called for his cross-examination and when he was permitted to endorse his statement, no objection was taken by the appellant/wife. The documents have been filed along with the pleadings and the affidavit by way of evidence. Copies of the said documents are with the appellant. All the documents are stamped on the reverse, there is no allegation that forged or fabricated documents have been filed in court. In view of the same, it cannot be said that the veracity of the documents would be in doubt. It is further to be noticed that on 30.05.2017 itself, the respondent/husband had been questioned by the other side as to whether the documents tendered by him and marked as exhibits, were signed by the Presiding Officer as the originals of the same were not filed and shown to the Presiding Officer. If aggrieved by the said order, nothing prevented the appellant/wife from approaching this court under Article 227 of the Constitution of India in the year 2017 itself. Strangely, the appellant waited MAT.APP.(F.C.) 82/2020 Page 14 of 15 till 2019 to raise such an objection. In any event as observed above, these are matters to be decided before the Family court and not at this stage. The matter is now fixed for final hearing. The contention of Mr. Pracha, learned counsel for the appellant/wife that the appellant being a lady, was not being properly assisted is belied by the fact that she has even earlier approached this court for relief through a counsel. In the said background, it cannot be said that the appellant has not been getting proper legal assistance. For the aforesaid reasons, the present appeal is devoid of merits.
21. The appeal is therefore dismissed as not maintainable and being a blatant abuse of the process of law.
HIMA KOHLI, J SUBRAMONIUM PRASAD, J DECEMBER 2, 2020 rs/hsk MAT.APP.(F.C.) 82/2020 Page 15 of 15