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2022 DIGILAW 1931 (ALL)

Bhanu Gandotra v. Additional Principal Judge Family Court, Lucknow

2022-12-07

ABDUL MOIN

body2022
JUDGMENT : ABDUL MOIN, J. 1. Heard learned counsel for the petitioner and Sri Ram Raj, learned counsel appearing for the respondent. 2. Under challenge is the order dated 23.02.2021 passed by the learned Additional Principal Judge, Family Court-10, Lucknow by which opportunity for filing of written statement by the petitioner has been closed. 3. A preliminary objection has been raised by Sri Ram Ram, learned counsel appearing for the respondent that the petition filed under Article 227 of Constitution of India would not be maintainable inasmuch as the order challenged is an order passed by the learned Family Court dated 23.02.2021 whereby the right of the petitioner to file a written statement has been closed. He contends that taking into consideration Section 19 of the Family Court Act, 1984 (hereinafter referred to as ‘Act 1984’) the order impugned has got the trappings of a final order as such, the petitioner has a statutory remedy of filing of an appeal and consequently, the petition filed under Article 227 of Constitution of India is not maintainable. Reliance has been placed on a full bench judgment of this Court in the case of Smt. Kiran Bala Srivastava vs. Jai Prakash Srivastava, 2005 (23) LCD 1 as well as the judgment of this Court in the case of Yogesh Arora vs. Smt. Jennette Yogish Arora, (2018) 9 ADJ 379 . 4. It is argued that the Full Bench of this Court has set forth as to what order would have the trappings of a final order and accordingly, considering the aforesaid judgment of the Full Bench and the order impugned having the trappings of the final order, the petitioner has a remedy of filing of an appeal against the said order. 5. On the other hand, learned counsel for the petitioner states that the right of filing of written statement has been closed by means of the impugned order and consequently, the same would not fall within the ambit of having the trapping of a final order and as such, the instant petition would not be maintainable. 6. Having heard the learned counsel appearing for the contesting parties and having perused the records what emerges is that the full bench of this Court in the case of Smt. Kiran Bala Srivastava (supra) has held as under: “19. 6. Having heard the learned counsel appearing for the contesting parties and having perused the records what emerges is that the full bench of this Court in the case of Smt. Kiran Bala Srivastava (supra) has held as under: “19. Interpreting the word “judgment” appearing in clause 15 of Letters Patent “Bombay” in Shah Babu Lal Khimji vs. Jayabein Kania, AIR 1981 SC 1786 , their lordships of the Apex Court held that those orders which decided matters of moment or which affected vital and valuable rights of the party or which tended to work serious injustice to the party concerned, fell within he expression “judgment” appearing in relevant clause of Letters Patent. Their lordships said that there could be following three kinds of judgments: “1. A final Judgment: A judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves, nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. 2. A preliminary judgment: this kind of a judgment may take two forms (a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. 2. A preliminary judgment: this kind of a judgment may take two forms (a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the trial Judge is concerned and, therefore, appealable to the larger Bench, (b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g. bar of jurisdiction, res-judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections are decided by the trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial' which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench. 3. Intermediary or interlocutory judgment: Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43, Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43, Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a Judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote.” 7. Before such an order can be a Judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote.” 7. From a perusal of the aforesaid judgment it emerges that the Full Bench while placing reliance on the judgment of the Apex Court in the case of Shah Babu Lal Khimji vs. Jayabein Kania, AIR 1981 SC 1786 has held that there could be three kinds of judgments namely (a) final judgment (b) a preliminary judgment and (c) intermediary or interlocutory judgment. In the instant case, admittedly the order impugned is neither a final judgment nor a preliminary judgment and as such, this Court would have to consider as to whether the forfeiture of right of filing of written statement of the respondent before the learned Family Court could be said to an intermediary or interlocutory judgment. 8. From a perusal of the Full Bench judgment as passed on the basis of the judgment of the Apex Court in the case of Shah Babu Lal Khimji (supra) it emerges that there can be interlocutory orders which are not covered by Order 43 Rule 1 CPC but which also possess the characteristic and trapping of finality in the sense that the orders may adversely effect a valuable right of the party or decide an important aspect of the trial in ancillary proceedings. Before such an order can be considered to be an intermediary or interlocutory judgment, the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. 9. From a perusal of order impugned it emerges that the learned Family Court has closed the right of the respondent therein/ petitioner herein of filing of a written statement. Thus, from the said order it is apparent that the said order has effected the right of the petitioner of filing of his written statement and the same has a direct effect on the petitioner inasmuch as his reply is not to be considered. Thus, keeping in view the law laid down by the Full Bench judgment in the case of Smt. Kiran Bala Srivastava (supra) along with the judgment of Apex Court in the case of Shah Babu Lal Khimji (supra) it clearly emerges that the order impugned can be termed to be an intermediary or interlocutory judgment. Thus, keeping in view the law laid down by the Full Bench judgment in the case of Smt. Kiran Bala Srivastava (supra) along with the judgment of Apex Court in the case of Shah Babu Lal Khimji (supra) it clearly emerges that the order impugned can be termed to be an intermediary or interlocutory judgment. Learned counsel for the petitioner has failed to produce any judgment which has laid law to the contrary. 10. Section 19 (1) of the Family Court Act, 1984 (hereinafter referred to as “Act 1984”) provides a remedy of an appeal. The said provision provides that 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 law. 11. As this Court has already held that the order impugned is an intermediary or interlocutory judgment consequently, it would not fall within the ambit of being an interlocutory order and as such, the petitioner has a remedy of filing of an appeal under Section 19 (1) of the Act, 1984. 12. Accordingly, once the petitioner has a statutory remedy of filing of an appeal, the instant petition filed under Article 227 of Constitution of India would not be maintainable. The petition is dismissed leaving it open to the petitioner to pursue the remedy as available to him.