Bombay High Court
Prakash Balkrishna Naidu vs Sou. Shashanka Prakash Naidu on 15 December, 2017
Author: S. B. Shukre
Bench: S.B. Shukre
917AO 43.17.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Appeal Against Order (A.O.) No. 43/2017
(Shri Prakash Balkrishna Naidu Vs. Sou. Shashank Prakash Naidu)
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Shri V. V. Bhangde, Advocate for appellant.
Shri G. L. Bajaj, Advocate for respondent.
CORAM : S. B. Shukre, J.
DATE : 15.12.2017.
I have heard Shri Bhangde, learned counsel for the appellant and Shri Bajaj, learned counsel for the respondent on the preliminary objection taken as to the maintainability of this appeal initially filed under Section 47 of the Guardians and Wards Act, 1890 and then by way of amendment, filed under Order 43 Rule 1(a) read with Section 104 of Civil Procedure Code.
2. According to the learned counsel for the respondent, this appeal is not maintainable before this Court and the appropriate remedy for ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:25:33 ::: 917AO 43.17.odt 2/10 the appellant would be to proceed under Section 19 of the Family Courts Act, 1984. The learned counsel for the appellant submits that the order of rejection of plaint, has been interpreted by this Court to be an order which is interlocutory because, it does not decide the rights of the parties finally and vis-a-vis the suit. The reliance has been placed in this regard on the view taken by the learned Single Judge of this Court in the case of Dr. Sumit S/o.
Narayanprasad Fogla Vs. Sou. Shradha w/o Sumit Fogla, reported in 2015(5) ALL MR 501. So, it is further submitted that the remedy of appeal would have to be found in the provisions of Order 43 Rule 1(a) of Civil Procedure Code which is a remedy of appeal against the order passed under Order 7 Rule 10 of the Civil Procedure Code. This is however, refuted by the learned counsel for the respondent contending that this particular provision of the Civil Procedure Code cannot be said to be applicable to the order passed by a Family Court,as the one involved here, for the reason that a Family Court is not a Civil Court and that there is a difference ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:25:33 ::: 917AO 43.17.odt 3/10 between a Civil Court proper and a Civil Court considered to be the Civil Court by deeming fiction of law. He also places reliance upon the cases of Radhey Shyam & Anr. Vs. Chhabi Nath & Ors. Reported in (2015) 5 SCC 423, Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Ors. Reported in (2009) 9 SCC 221 Para 37 to 39, Jagadguru Annadanishwara Maha Sawaji Vs. V.C. Allipur & Anr. Reported in (2009) 4 SCC 625 Para 8 and 11, Nahar Industrial Enterprises Ltd. Vs. Hong Kong & Shanghai Banking Corporation reported in (2009) 8 SCC 646 and Dr. Baliram Waman Hiray Vs. Justice B. Lentin & Ors reported in (1988) 4 SCC 419.
3. So far as the remedy of appeal available under Section 19 of the Family Courts Act, 1984 is concerned, I must say that the learned counsel for the appellant is right in his submission that this remedy is not available for challenging a kind of an order which is sought to be impugned here. This order is about rejection of the plaint holding that the Family Court does ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:25:33 ::: 917AO 43.17.odt 4/10 not have jurisdiction and it is passed by invoking the powers of the Court under Order 7 Rule 10 of the Civil Procedure Code. The test for determining an order to be an interlocutory has been laid down by the Hon'ble Apex Court in the case of V. C. Shukla Vs. State throu C.B.I. reported in 1980 Supp. SCC 92 by referring to several cases including one of Kuppuswami Rao Vs. King reported in AIR 1949 FC 1 which has been followed by learned Single Judge of this Court in Dr. Sumit (supra) The test as expressed by the Hon'ble Apex Court is "........the test of finality was whether the order disposed of the rights of the parties. The finality must be a finality in relation to the suit." Obviously, an order of rejection of plaint passed under Order 7 Rule 10 of the Civil procedure Code neither finally disposes of the rights of the parties nor suit, rather it implores the parties to assert their rights before a proper forum. So, as rightly submitted by the learned counsel for the appellant that any order which decides the issue of jurisdiction one way or the other is not a final order, but an interlocutory order. The appeal ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:25:33 ::: 917AO 43.17.odt 5/10 remedy provided under Section 19 of the Family Courts Act is about final order and it contains an express bar against an interlocutory order. That remedy, thus is not available to the appellant in the present case.
4. So, the question is as to which remedy would be available to the appellant? The appellant cannot be left remedyless and that is for sure. The general remedy available under the writ jurisdiction of this Court would have its own limitations. Therefore, an endeavor will have to be made to discover if there is any other effective remedy provided to the aggrieved parties facing a situation as the appellant is up against here. Section 10(1) of the Family Courts Act would provide a veritable guidance to us to resolve the issue. It reads thus:-
"(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 ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:25:33 ::: 917AO 43.17.odt 6/10 court. "
5. It is clear from a reading of this Section that the provisions of Civil Procedure Code are expressly made applicable to the Family Courts and that in order to remove any doubt which anybody may perhaps entertain about the nomenclature of the Court, which is of "Family Court", the legislature has expressed itself to clear it off in so many words that "Family Court shall be deemed to be a civil court". This Section on a careful look at it, would show that it is capable of being divided in two parts. First part relates to the applicability of the provisions of the Civil Procedure Code to a Family Court which has the effect of clothing a Family Court with all those powers a civil court would have under the Civil Procedure Code. Second part contains a declaration of legislative intent. The legislature intends that this Court, by fiction of law, be deemed to be a Civil Court. A combined reading of these two parts would clearly show that a Family Court has got all those powers of a civil court which it ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:25:33 ::: 917AO 43.17.odt 7/10 has under the Provisions of Civil Procedure Code and for all purposes, it is considered to be a Civil Court. When the law declares status of a particular Court in this fashion, the status of that Court cannot be considered to be separate and distinct from that of a Civil Court. It can not be distinguished from that of a naturally born civil court. The reason being that as long as the status and powers of both the Courts are same, as I see in both these Courts, it makes no difference whether a progeny is born naturally of fictionally. After all, it is for parents to distinguish between their natural progeny and artificially born progeny and if the parents treat them equally and see no difference in them, nobody else can treat and see them differently. Here, the legislature, the great begetter of laws, has accorded Family Court such equal status and treatment and so nobody can, in my humble view, has a right to thrust inferior status on it. To say otherwise is to go against the legislative intent. Therefore, I find that a Family Court, by virtue of the provisions of Section 10 of the Family Courts Act, would have to be considered ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:25:34 ::: 917AO 43.17.odt 8/10 as equal to a civil court, no less and no more.
6. Now, what is left for this Court is to find out if the order passed by the Family Court invoking its power under Order 7 Rule 10 would be amenable to a remedy of appeal available to an aggrieved party under the provisions of the Civil Procedure Code or not. This remedy of appeal can be found to be expressly provided under Order 43 Rule 1(a) of the Civil Procedure Code and thus, I find that this appeal is tenable.
7. In the cases relied upon by the learned counsel for the respondent, Hon'ble Apex Court has laid down the parameters by which a Court could be considered or not considered as a Civil Court. These parameters have been admittedly determined in the cases where the provisions of different statutes were under consideration. In all these cases, the provision of Section 10 of the Family Courts Act admittedly was not under consideration and the law laid down by the Hon'ble Apex Court in these cases was only in the context of those ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:25:34 ::: 917AO 43.17.odt 9/10 particular provisions of law. Therefore, in my humble opinion, these cases would lend no support to the stand taken by the respondent.
8. The view taken by me that an order passed by a Family Court under the provisions of Order 7 Rule 10 of Civil Procedure Code is amenable to challenge in the nature of appeal provided under Order 43 Rule 1(a) also finds support in a similar view taken by the Alahabad High Court in the case of Bhagwati Pandey Vs. Shyam Narayan Pandey and others reported in 2012(2) Civil LJ 618 which in fact, is the case relied upon not only by the appellant also by the respondent.
9. There are two more contentions raised by the learned counsel for the respondent. These contentions are that Section 14 of the Family Courts Act excludes the applicability of the provisions of the Evidence Act and as held by the Hon'ble Supreme Court, whenever provisions of Evidence Act are not made applicable, such a provision stands as one of the ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:25:34 ::: 917AO 43.17.odt 10/10 indicators that the Court is not a civil court. The second contention is that the provisions of Section 104 of the Civil Procedure Code as well as that of Order 43 Rule 1(a), both are substantive provisions and not procedural and therefore, would not be applicable to any order passed by the Family Court. The argument does not appeal to reason in view of the effect that Section 10 of the Family Courts Act has on status and powers of a Family Court which has been elaborated in detail in the previous paragraph and therefore, the argument appears to be unsound. It is rejected accordingly.
10. In view of above, I find that there is no merit in the preliminary objection and it is rejected.
Matter be listed on 18.12.2017.
JUDGE Gohane ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:25:34 :::