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Madhya Pradesh High Court · body

2009 DIGILAW 1330 (MP)

Kamla Patel v. Neeraj Prasad

2009-12-01

DIPAK MISRA, R.S.JHA

body2009
ORDER Dipak Misra, J. 1. This is an application for recall/modification of the order dated 21.4.2008. This Court on 21.4.2008 has passed the following order: "Heard Mr. Umesh Shrivastava, learned counsel for the appellants and Mr. Pranay Verma, learned counsel for the respondents. Perused the office note. Regard being had to the nature of the order passed by the learned Family Judge, Rewa, which pertains to return of plaint, we are of the considered opinion, this appeal should be registered as a miscellaneous appeal. Registery is directed to register it as a miscellaneous appeal and list the matter on 23.4.08." Thereafter, the matter was listed before another Division Bench and the said Bench on 14.9.2009 passed the following order :" Learned counsel for appellant submitted that impugned order was passed by the Family Court returning the plaint of the appellants. Aforesaid order is final order so far as section 19 of the Family Courts Act, 1984 is concerned. Though a Misc. Appeal is provided under Order 43 Rule 1 (a) of CPC against the order directing return of the plaint but under section 19 of the Family Courts Act, 1984, no Misc. Appeal is provided and every such appeal is to be registered as First Appeal. Under Chapter IV Rule 2 sub-rule (3) clause (b) of the High Court of M.P. Rules, 2008, all appeals under section 19 of the Family Courts Act, 1984 are to be registered as first appeal and there is no provision in the rules for registering an appeal against the order returning the plaint passed by the Family Court. In view of the aforesaid factual position, appellant may be permitted to move an application for modification/recall of the order dated 21.4.08." 2. Be it noted, the present appeal has been preferred under section 19 of the Family Courts Act, 1984 (for brevity "the Act") against the decision of the Family Courts, Rewa, in Civil Case No. 27-A/2005, dated 16.10.2007. By the impugned order the learnd Judge, Rewa tried the issue Nos. 7 and 8 which pertain to the jurisdiction of the Court and court- fees and eventually came to hold that the Family Court, Rewa has no jurisdiction to decide the case regarding recovery of property given on dowry and further directed the appellants to pay court-fees according to the value of property. 7 and 8 which pertain to the jurisdiction of the Court and court- fees and eventually came to hold that the Family Court, Rewa has no jurisdiction to decide the case regarding recovery of property given on dowry and further directed the appellants to pay court-fees according to the value of property. The learned Family Judge further directed for return of the plaint for presentation before the Competent Court. Thus, in essence, the order under challenge is return of plaint. 3. In this context, we may reproduced with profit section 19 of the Act. It reads as under:" 19. Appeal (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure Code, 1908 (5 of 1908) or in the Code of Civil 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 or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (20f1974) : 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 the judgment or order of a Family Court. (4) The High Court may, of its own montion or otherwise, call for and examine there record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapterm 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 ail 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 constituting of two or more judges." 4. (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 constituting of two or more judges." 4. In this regard we may also reproduce Section 20 of the Act, which is 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." 5. Section 21 of the Act empowered the High Court to make Rules. Subsection (1) of Section 21 reads as under : 21. Power of High Court to make rules: (1) The High Court may, by notification in the Official Gazette, make such rules as it may deem necessary for carrying out the purposes of this Act. " 6. In view of the aforesaid provisions and the non-obstante clause incorporated in section 19 (1) and the overriding effect of the Act as prescribed under section 20 and conferral of power on the High Court to make Rules for carrying out the purposes of this Act, we are of the considered opinion, the order passed on 21.4.2008 should be recalled and the present appeal should be registered as a First Appeal. Registry is directed to do the needful in the matter. 7. In the result, the LA. stands allowed.