Family Courts Act, 1984 - S.19 - Appeal - ex parte decree - Is an order passed by the Family Court setting aside an ex parte decree appealable ?
Held:- The proceedings in an application for setting aside an ex parte decree have to be treated as independent, separate and distinct proceedings from the original or main proceedings. The decision in such application, either allowing or dismissing it, finally terminates the proceedings in the application. It is not an interlocutory order. It is an order which substantially affects the rights of the plaintiff in the suit or the petitioner in the main proceedings. The test as to whether the order determines the rights of the parties in controversy in the original proceedings instituted by one of them would not apply to a proceeding independent of such original proceedings. If the order finally determines the controversy in an independent proceeding and that proceeding is disposed of, the order is final in so far as the controversy therein is concerned. The answer to the question whether the order is final or not will not depend on whether the controversy in the main proceedings is finally over, but whether the controversy raised in the separate and independent proceedings is finally over or not. The order allowing or dismissing an application for setting aside the ex parte decree, is therefore, not an interlocutory order within the ambit of Section 19(1) of the Act and it is appealable under the said provision.
IN
THE HIGH COURT OF KERALA AT ERNAKULAM
C.K. ABDUL REHIM & R. NARAYANA PISHARADI, JJ.
ZO.P.(FC) No.265 of 2018
Dated this the 26th day of July, 2018
AGAINST
THE PROCEEDINGS IN OP 1582/2014 of FAMILY COURT,ERNAKULAM
PETITIONER
VIVEK JOY
BY
ADVS.DR.SEBASTIAN CHAMPAPPILLY DR.ABRAHAM P.MEACHINKARA SRI.GEORGE CLEETUS SRI.P.A.SAINUDEEN
RESPONDENT
CHINCHU GRACE LUKOSE
ORDER
R. Narayana
Pisharadi, J.
Is an order
passed by the Family Court setting aside an ex parte decree appealable under
Section 19 of the Family Courts Act, 1984 (hereinafter referred to as 'the
Act') is the question mooted for decision.
2. The
facts of the case are as follows: The petitioner is the husband of the
respondent. He filed O.P.No.1582/2014 in the Family Court, Ernakulam for granting
a decree of declaration that his marriage with the respondent is null and void.
As an alternative relief, he sought a decree of divorce. The respondent was set
ex parte in the case. As per the judgment dated 12.05.2017, the Family Court
passed a decree of divorce in favour of the petitioner. Thereafter the
respondent filed an application to set aside the ex parte decree passed against
her. As per the order dated 05.03.2018 in I.A.No.2039/2017, the Family Court
set aside the ex parte decree and restored O.P.No.1582/2014 to file. The
petitioner has approached this court under Article 227 of the Constitution of
India challenging the aforesaid order passed by the Family Court.
3. The
Registry has declined to number this Original Petition filed under Article 227
of the Constitution of India on the ground that the impugned order passed by
the Family Court is an appealable order.
4. We
have heard the learned counsel for the petitioner as well as the respondent.
5. Sections
19(1) and 19(2) of the Act read as follows:
"19.
Appeal.- (1) Save as provided in subsection (2) and notwithstanding anything contained
in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal 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 (2 of 1974).”
6.
A simple reading of the above mentioned provision would clearly reveal that, in
respect of matters not covered under sub-section (2) of Section 19 of the Act, notwithstanding
anything contained in the Code of Civil Procedure and the Code of Criminal
Procedure, any judgment or order of a Family Court, except an interlocutory order,
is appealable. The legislative intention as reflected in the above mentioned
provision is that, no appeal would lie against an interlocutory order passed by
a Family Court. Evidently,
the Act prohibits appellate remedy against interlocutory orders of Family
Courts.
7. In
the above context, question arises whether the impugned order passed by the
Family Court setting aside the ex parte decree of divorce granted in favour of
the petitioner is an interlocutory order or not.
8. What
shall be the criteria for deciding whether an order is interlocutory or not?
The tests to be applied to determine whether an order is final or
interlocutory, apply as much to a civil case as to a criminal case. An order
which does not terminate the proceedings or finally decide the rights of the
parties is only an interlocutory order. In other words, in ordinary sense of
the term, an interlocutory order is one which only decides a particular aspect
or a particular issue or a particular matter in a proceeding, suit or trial but
which does not conclude the trial or proceeding at all. This would be the
result if the term interlocutory order is interpreted in its natural and
logical sense, without having resort to any statute (See V.C. Shukla v. State, AIR 1980 SC 962). The expression "interlocutory order" has to be understood
in the context of the meaning of the expression "case decided" in
Section 115 of the Code of Civil Procedure (See Abdul Lathif v. Saheeda, 1997
(1) KLT 734). The expression "case" is a word of comprehensive
import. It includes civil proceedings other than suits, and is not restricted
to the entirety of the proceeding in a civil court (See Khanna v. Dillon, AIR
1964 SC 497). The expression "case" is not limited in its import to
the entirety of the matter in dispute in an action. A case may be said to be decided,
if the court adjudicates for the purposes of the suit some right or obligation
of the parties in controversy (See Baldevdas v. Filmistan Distributors (India)
Pvt. Ltd; AIR 1970 SC 406). Any order which substantially affects the rights
of the accused, or decides certain rights of the parties cannot be said to be
an interlocutory order (See Amar Nath v. State of Haryana, AIR 1977 SC 2185).
Ordinarily and generally the expression 'interlocutory order' has been understood
and taken to mean as a converse of the term 'final order'. But such an
interpretation and the universal application of the principle that, what is not
a final order must be an interlocutory order, is neither warranted nor justified.
There may be an order passed during the course of a proceeding which may not be
final in the sense, yet it may not be an interlocutory order - pure or simple
(See Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47). The feasible test
is whether by upholding the objections raised by a party, it would result in
culminating the proceedings, if so any order passed on such objections would
not be merely interlocutory in nature (See K.K. Patel v. State of Gujarat, AIR
2000 SC 3346 and Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd; AIR
2001 SC 3625).
9.
In K.S. Das v. State of Kerala, 1992 (2) KLT 358, a Full Bench of this Court
considered the question whether the words 'judgment or order' in Section 5 (i)
of the Kerala High Court Act include interlocutory orders finally passed in Miscellaneous
Petitions in pending Original Petitions, and if so, what were the categories of
orders the legislature contemplated as being appealable. The Full Bench considered
the distinction between final orders and interlocutory orders and held that
'interlocutory orders' may mean purely procedural orders and not orders which
affect or, touch upon rights of parties or matters of moment, though the main
case is not disposed of.
10. In
Thankappan Nair v. Prasanna Kumari, ILR 1995 (3) Kerala 638, question arose as
to what is the width of the expression "interlocutory order" in the
context of Section 19 of the Act. The Division Bench held that, meaning of
interlocutory order in Section 19 of the Act shall be understood as an order
which is not a final order.
11. In
Abdul Rasheed v. State of Kerala, ILR 2008 (4) Kerala 353, a Single Bench of
this Court held that, the law appears to be well settled that all orders cannot
be categorised into two water tight compartments of interlocutory orders and
final orders. Between these two categories of orders, another third category of
orders exists which are described to be intermediate orders. The orders which
are not strictly final and which affect the rights of parties substantially,
though passed at intermediate stage of a pending proceedings, will fall under
this third category of intermediate orders.
12. In
Ramabhadran v. Bindu (Judgment dated 23.11.2015 in OP (FC) No. 393 of 2015), a
Division Bench of this court consisting of one of us (Justice C.K. Abdul Rehim)
has held that the provisions contained in Order XLIII Rule 1 of the Code of
Civil Procedure,1908 are not applicable to orders passed by a Family Court. It
was a case in which challenge was made not against the order passed by the
Family Court setting aside ex parte decree, but only against the conditions
imposed by the Family Court while setting aside the ex parte decree.
13. In
Manga Lakshmi v. Basanth Kumar, 2016 (3) KHC 111, a Division Bench of this
court consisting one among us (Justice C.K. Abdul Rehim) considered the parameters
for deciding whether an order is interlocutory or not. But, the question was
considered in that case in the context of deciding whether an order of the
Family Court granting temporary injunction is interlocutory or not. The observations
made by this Court in paragraph 12 of this decision have to be understood in
that context.
14. It
is well settled that an order of the Family Court dismissing an application
filed for setting aside an ex parte decree is not an interlocutory order and
that it is appelable (See Shameer v. Jamsheena, 2017(5) KHC 656).
15. Learned
counsel for the petitioner would contend that unlike an order dismissing the
application for setting aside the ex parte decree, an order allowing such
application revives the main proceedings and therefore, such an order has to be
considered as an interlocutory order, which is not appealable. There is no
merit in this contention. Revival of the suit or main proceedings is the effect
or consequence of the order allowing the application for setting aside the ex parte
decree. It is not sufficient to clothe such an order with the characteristics
of an interlocutory order.
16. In
Ram Sarup v. Gaya Prasad, AIR 1925 All 610, the Allahabad High Court has
considered the nature of the proceedings in the application for setting aside
an ex parte decree and held as follows:
“The
defendant had had an ex parte decree given against him and was seeking to have
it set aside under the provisions of Order 9, Rule 13 which gives him a right
to have the decree set aside provided he is able to satisfy the Court which
passed it that he was prevented by any sufficient cause from appearing when the
suit was called on for hearing. By these proceedings he was endeavouring to
enforce a right which did not, and could not, come into existence until the
suit had been decided. These
later proceedings being distinct from those in the suit, no order passed in the
course of them could possibly be an interlocutory order in the suit”.
(emphasis supplied).
17. The
dictum contained in Ram Sarup (supra) is an authority for the proposition that
the proceedings in an application to set aside the ex parte decree has to be considered
as independent proceedings, separate and distinct from the suit or the main
proceedings. If that be so, the order passed in such an application can be
treated as an order bringing finality in that proceedings. As far as such an application
is concerned, any order passed therein either allowing or dismissing the
application, is a final order and not an interlocutory order.
18. A
Division Bench of this Court, in Abdul Lathif v. Saheeda, 1997 (1) KLT 734, has held that an appeal would lie under Section 19(1) of
the Act from an order passed by the Family Court as regards its jurisdiction to
entertain the dispute. It is to be noted that it was a case in which the Family
Court found that it had got jurisdiction to decide the dispute. In other words,
the order of the Family Court did not result in culmination of the proceeding
but kept it alive. Inspite
of that fact this court held that the order of the Family Court is not an
interlocutory one and that it affected the right of the parties. The appeal
filed against such order was found to be maintainable.
19. The
question can be examined from another angle also. An order is not a final order
unless it finally decides the rights of the parties. To judge whether the order
is final, it is not always necessary to correlate the decision in every case
with the facts in controversy. The answer to the question whether the order is
final or not will not depend on whether the controversy between the parties is
finally decided or not by such an order.
20. The
expression “final order” in Article 133(1) of the Constitution of India was
considered by the Supreme Court in Ramesh v. Gendalal Motilal Patni, AIR 1966 SC 1445 and the Constitution Bench held as follows:
“The question will always arise what has the High Court decided
and what is the effect of the order. If, for example, the High Court declines to
interfere because all the remedies open under the law are not exhausted, the
order of the High Court may not possess that finality which the Article contemplates.
But the order would be final if the jurisdiction of a tribunal is questioned and
the High Court either upholds it or does not. In either case the controversy in
the High Court is finally decided. To judge whether the order is final in that
sense it is not always necessary to correlate the decision in every case with
the facts in controversy especially where the question is one of the
jurisdiction of the Court or tribunal. The answer to the question whether the
order is final or not will not depend on whether the controversy is finally over
but whether the controversy raised before the High Court is finally over or not. If
it is, the order will be appealable provided the other conditions are
satisfied, otherwise not”.
(emphasis
supplied).
20. The
expression “final order” in Article 134 (1) (c) of the Constitution was
considered by the Constitution Bench in Mohanlal Maganlal Thakkar v. State of
Gujarat, AIR 1968 SC 733 and the majority view is as follows:
“The question as to whether a judgment or an order is final or
not has been the subject matter of a number of decisions yet no single general
test for finality has so far been laid down. The reason probably is that a
judgment or order may be final for one purpose and interlocutory for another or
final as to part and interlocutory as to part. The meaning of the two words
'final" and "interlocutory" has, therefore to be considered
separately in relation to the particular purpose for which it is required.
However, generally speaking a judgment or order which determines the principal
matter in question is termed final. It may he final although it directs
enquiries or is made on an interlocutory application or reserves liberty to
apply. .... Different tests have been applied, however, to orders made in
proceedings independent of the original or the main proceeding. .... The test
as to whether the impugned order determines the rights of the parties in
controversy in the original proceedings instituted by one of them would not
apply to a proceeding independent of such original proceedings; and that if the
order finally determines the controversy in such a proceeding and that
proceeding is disposed of, the order is final in so far as that controversy is
concerned. Even an order ex facie interlocutory in character has been held to
be final if it finally disposed of the proceeding though the main controversy between
the parties remained undisposed of. .... The fact that the controversy still remained
alive is irrelevant.”
(emphasis
supplied)
21. In Ranvir Kumar v.
Judge, Family Court, Moradabad, MANU/UP/0598/1998, the Allahabad High Court
had occasion to deal with the question whether an order passed by the Family
Court setting aside an ex parte decree of divorce is interlocutory or not. The
Court held as follows:
“In the
cloister of the above authorities, I feel persuaded to the view that the order setting
aside the ex parte decree of divorce is no doubt fraught with the effect of restoring
the status quo ante qua the main issues involved in the divorce petition and reviving
the issues which were settled by the ex parte decree but, the expression "interlocutory
order" seems to have been used in Section 19(1) of the Act in the sense of
orders passed on miscellaneous applications during the pendency of the main
case, divorce petition in the instant case, which do not have the effect of the
case itself being finally disposed of, if once the main case is decided, an
order setting aside the decision and restoring the case for decision afresh
would not be treated as one interlocutory order for restoration proceeding is
an independent proceeding. The
decision on the issues raised in the restoration application will have the complexion
of a final decision qua the restoration application. The order allowing or rejecting
restoration application, is therefore, not an interlocutory order within the
ambit of Section 19(1) of the Family Courts Act. 1984, and is clearly
appealable under the said provisions.”
22.
In Gyanasis Jena v. Rekha Swain, AIR 2016 Orissa 163, it has been held that
the order setting aside the ex parte decree puts the defendant to a great
advantage and works serious injustice to the plaintiff because as a consequence
of the order, the plaintiff has to contest the suit and he is deprived of the
fruits of the decree passed in his favour and therefore, it cannot be an
interlocutory order and that it is appealable under Section 19(1) of the Act.
23. We
are in respectful agreement with the above view expressed by the Allahabad and
Orissa High Courts.
24. We
shall now conclude the discussion and sum up our opinion as follows: The
proceedings in an application for setting aside an ex parte decree have to be
treated as independent, separate and distinct proceedings from the original or
main proceedings. The decision in such application, either allowing or
dismissing it, finally terminates the proceedings in the application. It is not
an interlocutory order. It is an order which substantially affects the rights
of the plaintiff in the suit or the petitioner in the main proceedings. The
test as to whether the order determines the rights of the parties in
controversy in the original proceedings instituted by one of them would not apply
to a proceeding independent of such original proceedings. If the order finally
determines the controversy in an independent proceeding and that proceeding is disposed
of, the order is final in so far as the controversy therein is concerned. The
answer to the question whether the order is final or not will not depend on
whether the controversy in the main proceedings is finally over, but whether
the controversy raised in the separate and independent proceedings is finally
over or not. The order allowing or dismissing an application for setting aside
the ex parte decree, is therefore, not an interlocutory order within the ambit
of Section 19(1) of the Act and it is appealable under the said provision.
25. Consequently,
in the wake of an efficacious or rather more efficacious alternative remedy in
the form of appeal, the petition under Article 227 of the Constitution of India
must be held to be not maintainable. The petitioner has no case that, inspite
of having such more efficacious alternative remedy there are special
circumstances which may compel this court to entertain the petition under
Article 227 of the Constitution of India.
We
accordingly uphold the objection raised by the Registry and reject the
unnumbered Original Petition with the observation that it will be open to the
petitioner to challenge the impugned order in other appropriate proceedings.