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2019 DIGILAW 2222 (ALL)

Prateek Agarwal v. Richa Garg

2019-09-20

RAJEEV MISRA, SUDHIR AGARWAL

body2019
JUDGMENT : 1. Heard Sri Syed Irfan Ali, learned counsel for appellant. 2. The appeal has been filed against order dated 08.5.2019 passed by Sri Rajesh Narain Mani Tripathi, Additional Principal Judge, Family Court No.04, Aligarh admitting written statement of defendant and rejecting objection of appellant filed under Order VIII Rule 10 of Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”). 3. Appellant Prateek Agarwal filed Divorce Petition No.1243 of 2017 in the Court of Principal Judge/Family Court vide petition/complaint on 16.11.2017. Divorce Petition founded on Section 13(ia) of Hindu Marriage Act, 1955 (hereinafter referred to as “Act, 1955”) i.e. 'cruelty'. Summons were issued to respondent Smt. Richa Garg for filing written statement and 12.02.2018 was fixed for the said purpose. 4. Written statement was not filed and further dates fixed are 16.03.2018, 04.05.2018 and 12.07.2018. Appellant thereafter filed an application No.12A/1 dated 10.07.2018 under Order VIII, Rule 10 C.P.C. requesting Family Court to decree suit in favour of appellant under Order VIII, Rule 10 C.P.C. Family Court fixed 24.10.2018 for disposal of aforesaid application. On 24.10.2018 Presiding Officer was on leave and on the same date written statement was filed by defendant-respondent. Objecting to the said filing of written statement, appellant filed an objection (Paper No.15Ka) stating that written statement has not been filed within time prescribed under Order VIII, Rule 1 C.P.C. hence it cannot be accepted particularly when it has been filed without seeking any permission of Court below and therefore, it should be rejected. Application 12Ka and objection 16Ka have been rejected by Sri Rajesh Narain Mani Tripathi, Additional Principal Judge, Family Court No.4, Aligarh vide judgment and order dated 08.05.2019 hence this appeal. 5. Trial Court has rejected aforesaid applications on the ground that defendant-respondent appeared through counsel on 12.02.2018 and on the same date filed an application under Section 24 of Act, 1955 seeking payment of interim maintenance for herself and for contesting the case, whereupon 16.03.2018 was fixed. Ultimately, aforesaid application filed under Section 24 of Act, 1955 i.e. Paper No.8Ka was allowed vide order dated 23.8.2018 and thereafter 29.9.2018 was fixed for disposal of application 12Ka, which was adjourned to 24.10.2018 since Presiding Officer was on leave. On 24.10.2018 also Presiding Officer was on leave. Defendant-respondent filed written statement on that date. Ultimately, aforesaid application filed under Section 24 of Act, 1955 i.e. Paper No.8Ka was allowed vide order dated 23.8.2018 and thereafter 29.9.2018 was fixed for disposal of application 12Ka, which was adjourned to 24.10.2018 since Presiding Officer was on leave. On 24.10.2018 also Presiding Officer was on leave. Defendant-respondent filed written statement on that date. In effect, written statement was filed within 67 days from the date when application under Section 24 of Act, 1955 was accepted i.e. 23.08.2018 and hence it cannot be said that there is no compliance of Order VIII, Rule 10 C.P.C. 6. In our view, order dated 08.05.2019, which is under appeal, is in the nature of interlocutory and therefore under Section 19 of Family Courts Act, 1984 (hereinafter referred to as “Act, 1984”), appeal is not maintainable. 7. What an 'interlocutory order' is, has been considered by Supreme Court in V.C. Shukla vs. State through CBI, AIR 1980 SC 962 and following propositions have been laid down : “(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order; (2) that the concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order; (3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders; (4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter; (5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Article 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused.” 8. In Webster's New World Dictionary “interlocutory” has been defined as “an order other than final decision”. 9. “Interlocutory” order in its common legal parlance means such order which does not decide rights and liabilities of parties concerning a particular aspect. Orders which are of purely interim or temporary nature, do not decide or touch the important rights or liabilities of parties are interlocutory orders. 10. In the context of Section 397(2) Cr.P.C., it has been held that orders summoning witnesses, adjourning cases, orders on bail, calling for reports and such other steps in aid of pending proceedings, are all 11. In Central Bank of India vs. Gokul Chand, AIR 1967 SC 799 , Court said that orders regarding summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and admissibility of a document or relevancy of a question are interlocutory orders. 12. In Central Bank of India vs. Gokul Chand, AIR 1967 SC 799 , Court said that orders regarding summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and admissibility of a document or relevancy of a question are interlocutory orders. 12. In Mohan Lal Magan Lal Thacker vs. State of Gujarat, 1968 CriLJ 876, Supreme Court held that finality of an order should not be judged by correlating that order with the controversy in the complaint. The fact that the controversy still remained alive was irrelevant. There may be some interlocutory orders, which may have effect of becoming final order and they are appealable. 13. In Amar Nath and others vs. State of Haryana and others, (1977) 4 SCC 137 an order for summoning accused persons was held to be not an “interlocutory order” but an order whereagainst revision under Section 397 Cr.P.C. was maintainable on the ground that it affects valuable right of accused since he has been summoned for facing the trial and it admittedly prejudiced his rights and therefore, revision is maintainable. 14. An order passed under Sections 91 and 311 Cr.P.C. whether 'interlocutory' or not came up for consideration in Sethuraman vs. Rajamanickam, (2009) 5 SCC 153 . Court held that such orders are 'interlocutory orders' and hence not revisable under Section 397(2) Cr.P.C. 15. In the light of exposition of law discussed above, we find that in the present case, written statement filed by defendant-respondent has been accepted by Trial Court on the ground that though 12.02.2018 was fixed for filing written statement after issuing summons/notice to defendant-respondent but on that date defendant-respondent filed application under Section 24 of Act, 1955 praying for grant of interim maintenance showing that she was in financial scarcity for contesting the case. Therefore, first it become necessary to decide whether defendant-respondent was in the capacity of filing written statement without providing any interim maintenance and for deciding this aspect, various dates were fixed i.e. 16.03.2018, 04.05.2018, 12.07.2018 and 21.08.2018 and order was passed on 23.08.2018 when application of defendant-respondent was accepted and plaintiff-appellant was directed to provide interim maintenance to defendant-respondent. Therefore, first it become necessary to decide whether defendant-respondent was in the capacity of filing written statement without providing any interim maintenance and for deciding this aspect, various dates were fixed i.e. 16.03.2018, 04.05.2018, 12.07.2018 and 21.08.2018 and order was passed on 23.08.2018 when application of defendant-respondent was accepted and plaintiff-appellant was directed to provide interim maintenance to defendant-respondent. From that date, when application of Section 24 of Act, 1955 was allowed, within 67 days, written statement was filed hence it cannot be said that written statement filed by defendant-respondent was not within the time prescribed under Order VIII Rule 1 C.P.C. 16. Court therefore accepted written statement of defendant-respondent and this acceptance, in effect, only results in giving opportunity to parties to contest the matter so that divorce petition may be decided on merits after hearing both the parties. 17. In our view, this order of Court below accepting written statement filed by defendant-respondent is in the nature of 'interlocutory order', and, order rejecting application of appellant under Order VIII, Rule 10 C.P.C. is only consequential, therefore, we are clearly of the view that appeal is not maintainable. 18. Even otherwise, on merits, we do not find that the view taken by Court below is erroneous, inasmuch as, in family disputes, when divorce petition is filed by husband and on the first date fixed for written statement, wife comes with the complaint that she needs financial assistance and seeks time to enforce her rights of interim maintenance under Section 24 of Act, 1955, so long as this application is not decided, it cannot be said that wife was under an obligation to file written statement even though had financial crisis to contest the case. The view, therefore, taken by Court below that for the purpose of Order VIII Rule 10 C.P.C., in the facts of this case, time lapsed between the date when application under Section 24 of Act, 1955 was allowed and date on which written statement was filed, should be taken, which is only 67 days it cannot be said that there was non compliance of filing written statement within time by respondent-wife. 19. It is however contended that written statement was filed on 24.10.2018 without seeking permission of Court and therefore Order VIII Rule 1 providing only 30 days' time will apply and not 90 days' time. 20. 19. It is however contended that written statement was filed on 24.10.2018 without seeking permission of Court and therefore Order VIII Rule 1 providing only 30 days' time will apply and not 90 days' time. 20. In this regard we are of the view that no formal application for this purpose is necessary. If Trial Court accepted written statement when it is filed, it can be treated as if it has granted permission. Any specific procedure for this purpose neither has been prescribed nor need be introduced considering nature of proceedings. When a written statement is accepted by Trial Court, it results in allowing parties to contest the matter on merits instead of going to decide the matter ex parte. 21. In Sangram Singh vs. Election Tribunal Kotah and others, AIR 1955 SC 425 Court said that procedure of trial is made for the purpose of deciding a dispute in compliance of principles of natural justice and no technical view should be taken for such procedure. 22. Therefore, whenever statutory provisions in respect of procedure are to be considered, such view has to be taken which advances an adjudication on merits after hearing both the parties instead of ex parte decision. No person has a vested interest and right to seek adjudication of a dispute ex parte by taking advantage of any technical fault or issue. Courts must follow a procedure which, as much as possible, consistent with statutory provisions, principles of natural justice and leans in favour of a decision on merits after contest instead of ex parte decision. 23. In view of above discussion, appeal is dismissed as not maintainable as well as on the ground of involving no arguable issue at the stage of hearing under Order 41, Rule 11 C.P.C. 24. Interim order, granted on 26.6.2019, stands discharged.