Allahabad High Court
Sudhanshu Gupta vs Komal Gupta on 25 July, 2019
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Reserved Court No. - 9 Case :- CIVIL REVISION No. - 109 of 2019 Revisionist :- Sudhanshu Gupta Opposite Party :- Komal Gupta Counsel for Revisionist :- Rahul Sahai Counsel for Opposite Party :- Alok Tiwari Hon'ble Anjani Kumar Mishra,J.
Heard Shri Rahul Sahai, learned counsel for the revisionist and Shri Alok Tiwari, who states that he shall be e-filing his vakalatnama on behalf of the respondent.
The instant revision under Section 115 CPC is directed against an order dated 29.05.2019 passed by the Principal Judge, Family Court, Pilibhit in Matrimonial Petition No. 243 of 2012 (Smt. Komal Gupta Vs. Sudhanshu Gupta), whereby an amendment application under Order 6 Rule 17 CPC filed by the revisionist for amendment in his written statement has been rejected.
The stamp reporter has reported that this revision is not maintainable.
I have heard learned counsel for the parties on the question of maintainability of this revision, which as noticed above, is directed against an order passed by the Family Court.
The contention of Shri Rahul Sahai, counsel for the revisionist is that Section 10 of the Family Courts Act provides that the provisions of the Civil Procedure Code shall apply to proceedings and suits before a Family Court. The Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. This aspect requires consideration while deciding the question of maintainability of this revision.
He has next submitted that Section 19 provides that every order passed by the Family Court, which is not interlocutory in nature is appealable to the High Court and therefore, a revision under Section 115 CPC is not barred.
He has placed reliance upon three judgments to submit that a revision against the impugned order is clearly maintainable.
1. Isma Alam Vs. Irshad Alam passed in First Appeal No. 495 of 2010 decided on 25.01.2011, especially paragraphs 20 and 22 conclusive paragraph 28.
2. Rama Shanker Tiwari Vs. Mahadeo and Ors., 1968 (38) AWR 103, especially paragraphs 3, 4, 5, 23 and 24.
3. Yogish Arora Vs. Smt. Jennettee Dsouza, 2018 (9) ADJ 379.
Counsel for the respondent has submitted that the revision is not maintainable.
I have considered the submissions made by counsel for the parties and perused the record as also the judgments cited by counsel for the revisionist.
For the purposes of the controversy involved in this revision, it appears relevant to refer to Section 10 and 19 of the Family Courts Act, which are quoted below:-
"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 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.
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 2[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.] (3) Every appeal under this section shall be preferred within a period of thirty days from the date of judgment or order of a Family Court.
3[(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 with in its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.] 3[(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.
3[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."
From a bare perusal of Section 10, it emerges that the provisions of the Code of Civil Procedure are applicable to the proceedings under the Family Courts Act. However, the provisions of CPC are subject to other provisions of this Act and the Rules framed, thereunder. Therefore, the provisions of the CPC are applicable to the proceedings before the Family Court but these provisions are subject to and circumcised by the provisions of the Family Courts Act itself as also the rules framed thereunder.
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.
Order Date :- 25.07.2019 Mayank