Rajasthan High Court - Jaipur
Smt. Nandana vs Pradeep Bhandari on 23 August, 1995
Equivalent citations: I(1996)DMC285, 1996(2)WLC234
JUDGMENT V.S. Kokje, J.
1. This is an appeal under Section 19 of the Family Courts Act, 1986 against the Order dated July 10,1995 directing ex-parte proceedings against the appellant-the original non-petitioner (hereinafter referred to as 'wife') in a case under Section 13 of the Hindu Marriage Act, 1955 for a decree of divorce- dissolving the marriage between the parties.
2. A brief history of the proceedings culminating in passing of the impugned order would be necessary for appreciating the controversy.
3. The original application for decree of divorce was filed by the respondent herein (hereinafter referred to as 'husband'), on October 12, 1993. Several opportunities were given for filing reply to the main petition but the wife did not file reply and on September 28,1994,her right to file a reply was closed and the case was fixed for evidence on the original application. On November 7,1994, the reply filed by the wife to the application under Section 13 of the Hindu Marriage Act was taken on record as per the directions of this Court. In the meanwhile, an application under Section 10 of the Code of Civil Procedure (hereinafter to be referred as 'the Code'), was moved by the wife for stay of the proceedings on the ground of pendency of earlier proceeding filed by her claiming maintenance under the Hindu Adoptions & Maintenance Act, 1956. On February 13,1995, this application under Section 10 of the Code was rejected and the case was posted for March 13,1995 for evidence of the husband.
4. Ultimately, on April 24,1995 statements of the husband and his witnesses Chitranjan Bhansali and Dr. Gulam Rabani were recorded but the cross-examination of the witnesses was deferred and the case was directed to be put up on May 17, 1995. On May 17, 1995, the wife remained absent and moved an application for adjournment on the ground of her illness. The Court granted the adjournment despite strong objection on the part of the husband and adjourned the case to May 27, 1995 for cross-examination of the witnesses already examined as also for recording of the statements of the remaining witnesses of the husband. On that day also an application for adjournment was moved on behalf of the wife on the ground of her illness. The prayer was strongly objected on behalf of the husband but ultimately the Court granted the prayer in the interest of justice and adjourned the case to July 3, 1995. On July 3,1995, a prayer for consolidation of the case under Section 13 of the Hindu Marriage Act and the case under the Hindu Adoptions & Maintenance Act, 1956 was allowed and issues were amended in the light of the consolidation of the two proceedings. As the case was fixed for the evidence of the husband including his cross-examination, the Court wanted to proceed to take evidence but the wife moved an application that looking to the complications in the case, she may be permitted to be represented through a legal practitioner. The prayer was objected to on behalf of the husband and it was rejected. The wife then expressed her inability to cross-examine the husband on that day and prayed for two days time which was granted by the Court and the case was fixed for July 5,1995 for evidence of the husband.
5. On July 5,1995, the wife presented an application under Order XIV, Rule 5 of the Code for amendment of the issues in the light of the consolidation of the proceedings. She also submitted an application under Section 151 of the Code for adjournment of the case for three weeks to enable her to challenge the Order of the Court rejecting her prayer for being allowed to be represented through a legal practitioner. The prayers were vehemently opposed on behalf of the husband and it was urged that the wife was trying to prottrct the proceedings in order to harass the husband. The Court rejected the application for amendment of the issues as the issues had already been recast in the light of the consolidation of the proceedings. The Court also rejected the application for adjournment relying on the decision of the Supreme Court in V. Bhagat v. D. Bhagat (Mrs.) (1994) 1SCC 337 = II (1993) DMC 568 (SC). The wife then filed an application expressing inability to cross- examine the husband on that day and prayed for five days time for preparation. The prayer was again opposed by the husband but the Court granted time in the interest of justice. The case was then adjourned to July 10,1995.
6. On July 10,1995 the wife was absent. She sent an application to the Court praying for adjournment on the ground of suffering depression attaching a medical certificate with the application. The application was opposed on behalf of the husband and it was refuted that the wife was ill. An affidavit was filed on behalf of the husband that the wife was seen moving about and alleging that the application was moved to protract, the litigation. The Court considered the material before it and the back-ground of the case and relying on the decision of the Supreme Court in V. Bhagat v. D. Bhagat, (supra), rejected the application for adjournment and directed exparte proceedings to be taken against the wife and fixed the case for July 26,1995 for arguments. It is this Order dated July 10,1995 which is under challenge in this appeal.
7. A preliminary objection has been raised that the impugned order is an interlocutory order and therefore, an appeal did not lie in view of specific provision of Section 19 of the Family Courts Act, 1984. It would be in the fitness of things to decide this preliminary objection as to the maintainability of the appeal first before touching the merits of the case.
8. Section 10 of the Family Courts Act, 1984 makes the Code applicable to the proceedings before the Family Court subject to the other provisions of the Family Courts Act and the Rules made thereunder. Order XVII of the Code governs adjournments. Order XVII, Rule 2 provides that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. Order XVII, Rule 3 of the Code provides that where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witness, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, if the parties are present, proceed to decide the suit forthwith or if the parties are, or any of them is, absent, proceed under Rule 2.
9. In the present case, the case was specifically fixed on July 10,1995 for the purpose of cross-examination of the husband and examination of his witnesses. The case was earlier fixed on July 5, 1995 also for the same purpose and time was granted to the wife to cross-examine the husband and to be prepared for the evidence of other witnesses. The case therefore, squarely fell within the scope of Order XVII Rule 3 of the Code and when the wife was not present on July 10,1995, the Court could proceed under Order XVII, Rule 2 of the Code. Order XVII, Rule 2 of the Code empowers the Court to proceed to dispose of the suit in one of the modes provided under Order IX of the Code. Order IX Rule 6 of the Code empowers the Court to make an order that the suit shall be heard ex parte where the plaintiff appears and defendant does not appear when the suit is called on for hearing. Therefore, the Court was well within its jurisdiction when it ordered that the suit shall be heard ex parte. This undoubtedly was an order under Order IX Rule 6 read with Order XVII, Rule 2 and Order XVII, Rule 3 of the Code.
10 The question, therefore, is whether an Order under Order IX, Rule 6 of the Code is an interlocutory order ?
11. In Usmanbhai Dawoodbhai Memon and Ors. etc. v. State of Gujarat, (AIR 1988 SC 922), in Paragraph 24 of the judgment, the Supreme Court has dealt with the question and surveying the earlier case law has observed that the expression 'interlocutory order' was used in contradistinction to what is known as final order and denotes an order of purely interim or temporary nature. The essential test to distinguish one from the other has been discussed and formulated in several decisions of the Judicial Committee of the Privy Council, Federal Court and the Supreme Court. One test generally accepted by the English Courts and the Supreme Court was to see if the order was decided in one way, it may terminate the proceedings but if it is decided in any other way, the proceedings will continue. The Court then referred to the decision in V.C. Shukla v. State (AIR 1980 SC 962), in which two principles were enunciated viz. (i) that a final order has to be interpreted in contra-distinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. In V.C. Shukla's (supra), it was observed that the aforesaid principles apply to civil as well as criminal cases. Applying those principles, it was held by the Supreme Court that an order framing a charge against an accused was not a final order but an interlocutory order and therefore, not appealable. It cannot be doubted that the grant or refusal of a bail application under the Terrorist and Disruptive Activities (Prevention) Act, 1987 would be an interlocutory order.
12. Applying the test to this case, in the very Scheme of the Code, an order that the suit shall be heard ex parte cannot by itself be called a final order and can only be an interlocutory order. The provision has to be read with Order IX, Rule 7 of the Code which as amended in the State of Rajasthan provides that where the Court has adjourned the hearing of the suit after making an order that it be heard ex parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he Court may, upon such terms as the Court directs as to costs or otherwise, set aside the order for the hearing of the suit ex parte and hear the defendant in answer to the suit as if he had appeared on the day fixed for his appearance.
13. The Supreme Court in Arjun Singh v. Mohindra Kumar and Ors., (AIR 1964 SC 993), has held that even an order under Order IX, Rule 7 is not a final order, the provisions of Rules 6, 7 and 13 of Order IX of the Code have been discussed in detail in the decision. Excerpts germane to the point involved in this case are reproduced hereunder : Para 13 "It is needless to point out that interlocutory orders are of various-kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge"........."There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are intercutory in the sense that they do not decide any matter in issue arising in the suit nor put an end to the litigation. The case of an application under Order IX, Rule 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the Appellate Court. In that sense, the refusal of the Court to permit the defendant to "set the clock back" does not attain finality. But what we are concerned with in slightly different and that is whether the same Court is finally bound by that order at later stages, so as to preclude its being reconsidered." Para-14 "This leads us to the consideration of the nature of the Court's direction under Order IX, Rule 7-the nature of that interlocutory proceeding with a view to ascertain whether the decision of the Court under that provision decides anything finally so as to constitute the bar of resjudicata when dealing with an application under Order IX, Rule 13, Civil Procedure Code." Para-15 "The scope of a proceeding under Order IX, Rule 7 and its place in the scheme of the provisions of the Code relating to the trial of suits was the subject of consideration in (1955) 2 SCR 1: (S) AIR 1955 SC 425). Dealing with the meaning of the words "The Courts may proceed ex parte" in Order IX, Rule 6(1)(a) Bose, J. speaking for the Court said : "When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex parte order. Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an exparte decree or other exparte order which the Court is authorised to make. All that Rule 6(1)(a) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely to proceed, in the absence of one of the parties". Dealing next with the scheme of the Code, the learned Judge pointed out that the manner in which the Court could thereafter proceed i.e. after Rule 6(1 )(a) was passed would depend upon the purpose for which the suit stood adjourned, and proceeded :
"If it is for final hearing, an ex parte decree can be passed, and if it is passed, then Order IX, Rule 13 comes into play and before the decree is set aside the Court is required to make 'an order to set it aside'. Contrast this with Rule 7 which does not require the setting aside of what is commonly, though erroneously, known as "the ex parte order". No order is contemplated by the Code and therefore no order to set aside the order is contemplated by either "[Italics (here into)" ours] and referring to the effect of the rejection of application made under Order IX, Rule 7, he added:
"If a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order IX, Rule 7, makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in."
That being the effect of the proceedings, the question next arises what is the nature of the order if it can be called an order or the nature of the adjudication which the Court makes under Order IX, Rule 7 ? In its essence it is directed to ensure the orderly conduct of the proceedings by penalising improper dilatoriness calculated merely to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit. Besides, it is obvious that the proceeding is of a very summary nature and this is evident from the fact that as contrasted with Order IX, Rule 9 or Order IX, Rule 13, no appeal is provided against action of the Court under Order IX, Rule 7 "refusing to set back the Clock". It is, therefore, manifest that the Code proceeds upon oothe view not imparting any finality to the determination of any issues of fact on which the Court's action under that provision is based."
Para-19 "Rule 6(1)(a) enables the Court to proceed ex parte where the defendant is absent even after due service. Rule 6 contemplates two cases : (1) The day on which the defendant fails to appear is one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the suit, and (2) where the stage of the first hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result. So far as the first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced. In that case Order IX, Rule 13 would come in. The defendant can, besides filing an appeal or an application for review have recourse to an application under Order IX, Rule 13 to set aside the ex parte decree. The entirety of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of Order IX, Rule 7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non- appearance on the previous day or days he might have the earlier proceedings recalled - "set the clock back" and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order IX, Rule 7 and Order IX, Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial."
14. When in the light of the aforesaid decision, we examine the impugned order, we find that the Court has only proceeded under the provisions of Order IX, Rule 6 of the Code read with Order XVII, Rule 3 and Order XVII, Rule 2. The appellant-wife was absent when the case was called on for hearing on July 10,1995. Her application for adjournment somehow reached the Court and the Court rejected it. This would not alter the situation because the wife was in fact absent on July 10,1995 when the case was called and the Court had jurisdiction to proceed under Order XVII, Rule 3, Order XVII, Rule 2 and Order IX, Rule 6 of the Code which ultimately it did. This Order is ex facie an interlocutory order. It does not decide any lis between the parties even partially or temporarily till a final decision of the case. Not only that the order does not attain finality. Specific provision for setting aside the Order is made under Order IX, Rule 7 and if application under OrderIX, Rule 7 is rejected, and ex-parte decree is passed, an application under Order IX, Rule 13 of the Code is provided.
15. The preliminary objection therefore has to be upheld and it has to be held that the appeal against the impugned order is not maintainable because it is an interlocutory order.
16. The apprehension of the appellant-wife that the rejection of her application for adjournment of hearing dated July 10,1995 would prejudice decision on any application to set aside ex parte order under Order IX, Rule 7 of the Code or application for setting aside ex parte decree if such a decree was ultimately passed is also without any foundation. The decision in Arjun Singh's case (supra) deals with that point also and holds that principle of res judicata would not be applicable to the situation.
17. It was also contended that the hearing of the divorce proceedings and the proceedings for maintenance were consolidated and since no order has been passed by the learned Judge in the other case, there is no indication as to what will happen to the case of maintenance. We see no anomaly in the order passed by the Trial Court in this regard as the trial Court has decided nothing finally and it had only proceeded ex parte against the appellant-wife. Further proceedings in the case were to be taken by the Court and it is only when the final order is passed, the Court is expected to say something about the other case also.
18. Before parting with the case we feel it necessary to record that the way in which this litigation is being conducted by the parties leaves us sad. The purpose of keeping the lawyers away from such litigation seems to be completely defeated in this case. Parties have to take upon themselves the task of pleading their respective cases as lawyers have not been allowed. The decorum and dignity with which cases are normally conducted before the Civil Court with the aid of professionals steeped in the age old traditions of the Bar are totally lost and unrestricted and relentless acrimony has taken their place. It cannot be believed that parties to such litigation prosecute it without the aid of lawyers. If that is issue, no useful purpose can be served by keeping the lawyers out of the Court. When the lawyers appear before the Court as proxy to their clients, they are expected to have a subtle, studied sense of detachment from the cause of their respective clients and they are expected not to personally involve themselves in the cause. They have a responsibility towards the Court also. When the roles are reversed and the lawyer is only expected to act behind the scenes, the litigant willy-nilly may become a proxy and the battle may be fought between the two lawyers using the litigants as puppets or cat's-paw. The result is a fierce no-holds-barred battle between two hapless persons estranged from each of the party. The purpose of keeping the lawyers out of the Court is defeated and a litigant who finds himself unequipped and unable to plead his own case and who has in any case to depend on lawyer for advice is deprived of the services in the Court of a competent and responsible professional. It appears to be a case where the remedy has proved more harmful than the disease itself. It is high time, the Legislature takes a second- look at the provision contained in Section 13 of the Family Courts Act, 1984.
19. The appeal is dismissed as not maintainable. The parties are directed to appear before the Trial Court on August 28, 1995. The record of the Trial Court be sent back immediately. The Trial Court is expected to dispose of this litigation expeditiously.