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2025 DIGILAW 1305 (ALL)

Vinay Mohan v. Nidhi Singh

2025-11-12

RAJAN ROY, RAJEEV BHARTI

body2025
JUDGMENT : Order on Delay Condonation Application 1. Heard. 2. Although we have serious doubts as regards the maintainability of this special appeal under Chapter VIII Rules 5 of the Allahabad High Court Rules, 1952, nevertheless, as the appeal is delayed, first and foremost we have to consider the delay whether it is liable to be condoned. 3. Having gone through the affidavit in support of the application for condonation of delay, we find that the cause shown is sufficient. 4. Accordingly, we condone the delay in filing the appeal. Order on Appeal 5. We now proceed to consider the maintainability of the appeal under Chapter VIII Rules 5 of the Rules, 1952. 6. The appeal is directed against the judgement and order dated 18.7.2025 passed by the learned Single Judge in a petition filed by the appellant under Article 227 of the Constitution bearing No. 4232 of 2025 ( Vinay Mohan vs. Nidhi Singh ). 7. The petition under Article 227 itself was filed challenging an order dated 29.03.2025 passed by the Family Court in Matrimonial Case No. 2162 of 2022 filed under Section 12 of the Hindu Marriage Act, 1955, wherein the application of the appellant-petitioner seeking medical examination had been rejected. 8. Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 reads as under:- 5. 8. Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 reads as under:- 5. Special appeal :- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction [or in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award--(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge." 9. As per the said provision, an appeal shall lie to the Court from a judgement of one Judge. However, there is an exclusion clause which excludes the cases in which appeal cannot be filed. 10. As per the said provision, an appeal shall lie to the Court from a judgement of one Judge. However, there is an exclusion clause which excludes the cases in which appeal cannot be filed. 10. On a bare reading of the aforesaid provision in order an appeal to be maintainable under Chapter VIII Rule 5 of the Rules, 1952 against a judgement, it has to be a judgement which has not been passed in exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to superintendence of the Court and not being an order made in the exercise of revisional jurisdiction, or in the exercise of power of superintendence, or in the exercise of criminal jurisdiction, or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgement, order or award (a) of a Tribunal, Court or statutory arbitrator made or purported to be made in exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act. 11. Thus, as per the aforesaid Rules, so far as the Allahabad High Court is concerned, special appeal is not maintainable against a judgement, if it has been passed in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgement or order of a Court. Now, the judgement impugned herein has been passed under Article 227 of the Constitution of India in respect of an order of a court, i.e., the Family Court referrable to the Family Courts Act, 1984 and the provisions of the Code of Civil Procedure. The original court passed the order in proceedings under Section 12 of the Hindu Marriage Act, 1955 which was impugned before the High Court Article 227 of the Constitution and against the judgement passed in the said proceedings, this appeal has been filed which is apparently not maintainable. 12. The law in this regard has been settled by a Full Bench of this Court. 12. The law in this regard has been settled by a Full Bench of this Court. The provision of Chapter VIII Rule 5 of the Rules has been considered and its purport explained by a Full Bench of this Court in the case of Sheet Gupta vs. State of U.P. and others : 2010 (28) LCD 1045. 13. As regards reliance placed by the appellant upon the judgement of Hon’ble Supreme Court in State of Madhya Pradesh and others vs. Visan Kumar Shiv Charan Lal : 2008 (15) SCC 233 , that was a case pertaining to the Madhya Pradesh High Court where the provision for an intra court appeal/letters patent appeal is different from the one applicable in the Allahabad High Court. The provision contained in Section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand) Nyaypeeth Ko Appeal) Adhiniyam, 2005 reads as under:- "2. Appeal to the Division Bench of the High Court from a judgment or order of one Judge of the High Court made in exercise of original jurisdiction.- (1) An appeal shall lie from a Judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench Comprising of two judges of the same High Court: Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory Jurisdiction under Article 227 of the Constitution of India. (2) An appeal under sub-section (1) shall be filed within 45 days from the date of order passed by a single Judge. Provided that any appeal may be admitted after the prescribed period of 45 days, if the petitioner satisfies the Division Bench that he had sufficient cause for not preferring the appeal within such period. Explanation . The fact that the petitioner was misled by any order. practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this sub-section. (3) An appeal under sub-section (1) shall be filed, heard and decided in accordance with the procedure as may be prescribed by the High Court." 14. The fact that the petitioner was misled by any order. practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this sub-section. (3) An appeal under sub-section (1) shall be filed, heard and decided in accordance with the procedure as may be prescribed by the High Court." 14. A conjoint reading of Chapter VIII Rule 5 of the Rules, 1952 applicable in the Allahabad High Court and Section 2 of the Act, 2005 applicable in the Madhya Pradesh High Court shows the apparent difference in the two provisions. Here the question is not as to whether the petition under which the judgement impugned in this appeal was passed under Article 226 or 227 as, in our case, both, the judgements passed under Article 226 and 227, are not amenable to the jurisdiction of the special appellate Court under Chapter VIII Rule 5, if, they fall in any of the exclusionary categories mentioned in the said provision, such as, a judgement or order rendered in a petition under Article 226 or 227 in respect of any judgement of any Court etc., therefore, reliance placed by the appellant appearing in person upon the aforesaid decision of the Hon’ble Supreme Court is misplaced. The said judgement does not apply in the facts of this case and in view of the provision applicable herein. 15. The other judgement relied upon by the appellant appearing in person has been rendered by Full Bench of the Bombay High Court in the case of M/S. Advani Oerlikon Ltd vs Machindra Govind Makasare & Ors. Ig : AIR 2011 BOMBAY 84, 2011 (3) AIR BOM R 178 . One of the issues in the said case was as under: "9. If the petition is filed only under Article 227 and the order passed therein which amounts to judgment is passed in favour of the Petitioner, whether or not it is open for the respondent in the petition to challenge the said order in an appeal under clause 15 of the Letters Patent contending that though the writ petition was one filed under Article 227 it was also one under Article 226 as facts justify or it ought to have been filed under Article 226 only and, hence, the Letters Patent Appeal is maintainable against an order passed thereon?" 16. The issue therein was essentially as to whether the impugned judgement had been passed by the learned Single Judge in exercise of its power under Article 226 or 227 as, a letter patent appeal or intra court appeal under the Bombay High Court Rules was maintainable only if the judgement had been passed under Article 226 of the Constitution of India and not under Article 227. The Full Bench answered the issue No. 9 as under:- "VBC 42 lpa261.05 Re: 9 : In a situation where a petition is filed under Article 227 of the Constitution and judgment is rendered in favour of the Petitioner, recourse to an appeal under Clause 15 of the Letters Patent is not barred to the Respondent before the Single Judge merely on the ground that the petition was under Article 227." 17. The issue involved in the said case is not involved herein. It is not a question as to whether the judgement impugned in this appeal has been passed under Article 226 or 227 of the Constitution of India. The legal position is, irrespective of the aforesaid i.e., even if it is passed under Article 226, if the judgement impugned arises out of proceedings whether under Article 226 or 227 wherein an order of a Court is under challenge, then an intra court appeal against the judgement of the learned Single Judge would not lie before the Division Bench under Chapter VIII Rule 5 of the Allahabad High Court Rules 1952, therefore, reliance placed by the appellant on the aforesaid Full Bench decision of the Bombay High Court is also misconceived. 18. The appellant has further relied upon a judgement of the Hon’ble Supreme Court in Sushilabai Laxminarayan Mudliyar vs. Nihalchand Waghajibhai Shah and others : AIR 1992 SC 185 to contend that this appeal would be maintainable. Having gone through the said judgement, we find that in that case also, the issue was as to whether appeal would lie against a judgement passed by the learned Single Judge under Article 227 of the Constitution of India or not. We have already mentioned that this is not the issue involved in this petition, therefore, this judgement has no application to the facts of this case and the provision which is applicable herein is different. 19. We have already mentioned that this is not the issue involved in this petition, therefore, this judgement has no application to the facts of this case and the provision which is applicable herein is different. 19. Another judgement cited by the appellant was rendered by a Bench of the Jharkhand High Court in the case of Smt. Pallavi vs. Shri Raj Kamal : AIR 2008 JHAR 79 . We have gone through the said judgement. There also the issue was as to whether the judgement of the learned Single Judge which was impugned in appeal was under Article 226 or 227 of the Constitution of India and in that context, the observations were made. We have already stated that this is not the issue involved herein. Here the provision under which the appeal is maintainable is very different from the provision which may be applicable in the Bombay High Court or the Jharkhand High Court. 20. For all these reasons, we are of the opinion that none of the decisions relied upon by the appellant are applicable nor to make this appeal maintainable before us. 21. We may also mention that there is another judgement reported in 2015 (9) SCC 1 : Jogendrasinhgji Vijaysinhji vs. State Of Gujarat and others , wherein considering the relevant Rules of the Gujarat High Court and after perusing the authoritative pronouncements on subject, Hon’ble Supreme Court held that an order passed by the Civil Court can only be assailed under Article 227 of the Constitution of India and the parameters of challenge have been clearly laid down by the Supreme Court in series of decisions which have been referred to by Three-Judge Bench in Radhey Shyam & Another vs. Chhabi Nath and others : 2015 (5) SCC 423 , which is a binding precedent. Needless to emphasize that once it is exclusively assailable under Article 227 of the Constitution of India, no intra court appeal is maintainable. Now this again is a judgement based on the Rules applicable in the Gujarat High Court. We have mentioned it only in the context of rulings cited by the appellant, otherwise the provision as applicable in the Allahabad High Court is different, as quoted herein-above. 22. For all the aforesaid reasons, this special appeal is not maintainable. The appellant is at liberty to pursue other remedies unaffected by dismissal of this appeal as not maintainable. We have mentioned it only in the context of rulings cited by the appellant, otherwise the provision as applicable in the Allahabad High Court is different, as quoted herein-above. 22. For all the aforesaid reasons, this special appeal is not maintainable. The appellant is at liberty to pursue other remedies unaffected by dismissal of this appeal as not maintainable. It is, accordingly, dismissed as not maintainable.