Orissa High Court
Gyanasis Jena vs Smt. Rekha Swain on 8 September, 2016
Equivalent citations: AIR 2016 ORISSA 163, (2016) 4 CURCC 216, (2017) 1 HINDULR 669, (2017) 1 CIVILCOURTC 613, (2017) 1 DMC 568, (2017) 1 DMC 411
Author: K.R. Mohapatra
Bench: B.K.Nayak, K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK.
MATA NO.72 OF 2015
From the order dated 12.03.2015 passed by the Judge Family Court,
Cuttack in Misc. Case No.118 of 2012 setting aside the ex parte decree
of divorce dated 8.12.2008 passed in C.P. No.78 of 2007.
-------------
Gyanasis Jena ...... Appellant
-Versus-
Smt. Rekha Swain ...... Respondent
For Appellant : M/s. N.K.Sahu & B.Swain
Mrs. Saswata Patnaik
For Respondent : M/s. Pravat Kumar Mohanty
& N.K.Rout
----------------------------
Date of Order : 08.09.2016
-----------------------------
P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.K.NAYAK
AND
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
----------------------------------------------------------------------------------------------------
ORDER
K.R. Mohapatra, J.This Matrimonial Appeal has been filed assailing the order dated 12.3.2015 passed by learned Judge Family Court, Cuttack in Misc. Case No.118 of 2012 allowing an application for setting aside the ex-parte judgment dated 08.12.2008 passed in C.P. No.78 of 2007. When the matter was taken up for admission, this Court by order dated 20.04.2015, raised a doubt with regard to maintainability of this Appeal under Section 19 of the Family Courts 2 Act, 1984 (for short, 'the Act,1984'). Again on 04.05.2015, the matter was taken up for consideration of the issue of maintainability of this Appeal, when this Court felt it proper to issue notice to the respondents indicating therein that the matter would come up on 15th July, 2015 for final adjudication on the question of maintainability. The matter was thereafter adjourned to different dates and the parties have filed their written arguments in support of their case in the meanwhile. The matter was ultimately heard on 29.08.2016 on the question of maintainability of the appeal. Since the maintainability of the appeal is the issue involved for adjudication at present, this Court is not required to delve in detail into the facts and merit of the appeal except some relevant facts necessary for proper adjudication of the issue which is stated hereunder in brevity.
2. The marriage between the parties to the Appeal was solemnized on 07.12.2001 according to Hindu rites and custom. As some dissensions arose between the parties, the Appellant filed C.P. No.78 of 2007 in the Court of the Judge Family Court, Cuttack under Section 13 of the Hindu Marriage Act, 1955 (for short, the 'Act,1955'). Due to non-appearance of the respondent (wife), she was set ex parte on 29.08.2008 and ex parte decree of divorce was passed on 08.12.2008. The respondent filed an application under Order 9 Rule 13, CPC for setting aside the ex parte decree on 03.10.2012, which was registered as Misc. Case No.118 of 2012. By 3 order dated 12.03.2015, the Judge Family Court, Cuttack set aside the ex parte decree dated 08.12.2008 and restored C.P. No.78 of 2007 to file, which is under challenge in this Appeal.
3. Heard Mr.N.K.Sahu, learned counsel for the Appellant and Mr.Pravat Kumar Mohanty, learned counsel for the respondent. Perused the written notes of argument filed by the parties along with citations enclosed therewith. The question of maintainability of the Appeal has been raised by this Court apparently relying upon a decision of the Hon'ble Supreme Court in the case of Bhulan Rout and another Vs. Lalbahadur Yadav, reported in (2004) 13 SCC
679. In the said case, Hon'ble Supreme Court has categorically held that no appeal is expressly provided under Order 43 of CPC against order allowing an application under Order 9 Rule 13, CPC. Hence, no appeal lies against order allowing an application under Order 9 Rule 13, CPC.
4. In order to advert to the issue of maintainability, it requires close reading of the provision under Section 19 of the Act, 1984 which is the substantive provision for appeal to the High Court against a judgment and order of the Family Court. It 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 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.4
(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.
xx xx xx"
On a plain reading of the aforesaid provision, it is clear that save and except from an interlocutory order or an order or a decree passed on consent of the parties and order passed under Chapter-IX of the Code of Criminal Procedure, 1973, an appeal shall lie from every judgment or order of a Family Court to the High Court both on facts and law. In the case at hand, the order assailed is neither passed on consent nor it is an order passed under Chapter- IX of the Cr.P.C. Thus, this Court has to examine as to whether the impugned order is an interlocutory one. If the answer is in affirmative, no appeal shall lie from such order and vice-versa.
5. Mr.N.K.Sahu, learned counsel for the appellant vehemently argued that allowing an application under Order 9 Rule 13, CPC is not an interlocutory order. Since the right of the parties involved in the said proceeding is finally adjudicated, it can be termed as 'interlocutory judgment' which according to him is appealable under Section 19 of the Act, 1984. In support of his case, he relied upon a decision of the Hon'ble Supreme Court in the case of Shah Babulal Khimji Vs. Jayaben D.Kania and another, 5 reported in AIR 1981 SC 1786, the relevant portion at paragraph- 113 of which is quoted herein below.
"xx xx xx (3) Intermediary or Interlocutory judgment-Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of order 43 Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by o. 43 R.1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. For instance, where the Trial Judge in a suit under Order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the Letters Patent so as to be appealable to a larger Bench. Take the converse case in a similar suit where the trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is false and succeed in the suit. Thus, such an Order passed by the Trial Judge would not amount to a judgment within the meaning of cl. 15 of the Letters Patent but will be purely an interlocutory order.
Similarly, suppose the Trial Judge passes an Order setting aside an exparte decree against the defendant, which is not appealable under any of the clauses of O. 43 R.1 though an order rejecting an application to set aside the decree passed exparte falls 6 within O. 43 R.l cl. (d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of Letters Patent. The fact, however, remains that the order setting aside the ex-parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the Trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench."
He further referring to Section 19 of the Act, 1984 contended that the provision under Section 19(1) of the said Act starts with a non- obstante clause and thus, the provision under Section 10 of the Family Courts Act is not applicable to the appeals made under Section 19 of the Act. Thus, he contended that the Appeal is very much maintainable.
6. Mr. Prabhat Kumar Mohanty, learned counsel for the respondent, on the other hand, in addition to the case of Bhulan Rout (supra) also relied upon the decision in the case of Poonam Chand Jain and another Vs. Fazru, reported in 2005 (1) OLR (SC)1 and contended that an order which does not terminate the proceedings or finally decides the right of the parties is only an interlocutory order. He further contended that Section 10 of the Act provides that procedure laid down in the Code of Civil Procedure, 1908 is applicable to a proceeding under the Act, 1984 and Family Courts shall be deemed to be Civil Court and for that purpose, it 7 shall have all powers of a Civil Court. Thus provision under Order 43 Rule 1(d), CPC is squarely applicable to the proceedings in a Family Court. Since Order 43 does not provide for appeal against allowing an application under Order 9 Rule 13, CPC, no appeal in the eye of law shall lie under Section 19(1) of the Act. Hence, he prayed for dismissal of the appeal as not maintainable.
7. Section 10 of the Family Courts Act reads as follows:-
"10. Procedure generally.-(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other."
Section 10(1) starts with the words 'Subject to the other provisions of this Act and the rules'; including Section 19 thereof, which starts with a non-obstante clause, i.e., 'Save as otherwise provided in sub-section (2) and notwithstanding contained in the Code of Civil Procedure, 1908 (5 of 1908)', which confers a 8 substantive right of appeal. Further, Section-20 of the Act, 1984 provides its overriding effect on any other law. It reads as follows:-
"20. Act to have overriding effect - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
Section-20 makes it further clear that the provisions of this Act will have an overriding effect, which is inconsistent with the provisions of any other law for the time being in force. In the decision in the case of Aswini Kumar Ghose and another Vs.Arabinda Bose and another, reported in AIR 1952 SC 369, the Hon'ble Supreme Court held as follows:-
"24. ....It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment....."
Thus, Section 19(1) of the Act, 1984 overrides the provisions of 'Appeal' either under Section 96 or under Section 104 read with relevant Rules, as provided under the Code of Civil Procedure, 1908 and therefore, Section 10 has no applicability in preferring an appeal under Section 19(1) of the Act, 1984.
As discussed earlier, Section 19 provides three exceptions, where an appeal does not lie from the judgment and order of a Family Court, such as.--
9
(a) where the decree or order passed by the Judge Family Court with the consent of the parties;
(b) from an order passed under Chapter-9 of
Cr.P.C.; and
(c) an interlocutory order passed by the Judge
Family Court.
8. The first two exceptions have no relevance for the case at hand. As held in Shah Babulal Khimji (supra) order allowing an application to set aside an ex parte decree is an 'interlocutory judgment', which finally determines the right of the parties in the said proceeding. In addition to the above, a Full Bench decision of this Court in the case of Swarna Prava Tripathy and another Vs. Dibyasingha Tripathy and another, reported in 1998 (II) OLR 1 had the occasion to examine what an 'interlocutory order' is and held as under:-
"6. .... 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 10 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."
Thus, at no stretch of imagination, the impugned order can be said to be an interlocutory order. The ratio decided in the case of Bhulan Rout (supra) and Poonam Chand Jain (supra) have no application to the case at hand.
9. In that view of the matter, the impugned order being not an interlocutory one, is held to be appealable under Section 19(1) of the Family Courts Act and the appeal is held to be maintainable.
................................
K.R. Mohapatra, J.
B.K.Nayak, J. I agree.
................................
B. K. Nayak, J.
...
Orissa High Court, Cuttack
Dated the 8th Sept., 2016/ss