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Prakash Balkrishna Naidu vs Sou. Shashanka Prakash Naidu on 15 December, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.

Appeal Against Order (A.O.) No. 43/2017

(Shri Prakash Balkrishna Naidu Vs. Sou. Shashank Prakash Naidu)

————————————————————————————————————————–
Office notes, Office Memoranda of
Coram, appearances, Court’s orders Court’s or Judge’s Orders.
or directions and Registrar’s orders.
————————————————————————————————————————–
Shri V. V. Bhangde, Advocate for appellant.
Shri G. L. Bajaj, Advocate for respondent.

CORAM : S. B. Shukre, J.

DATE : 15.12.2017.

I have heard Shri Bhangde, learned

counsel for the appellant and Shri Bajaj, learned

counsel for the respondent on the preliminary

objection taken as to the maintainability of this

appeal initially filed under Section 47 of the

Guardians and Wards Act, 1890 and then by

way of amendment, filed under Order 43 Rule

1(a) read with Section 104 of Civil Procedure

Code.

2. According to the learned counsel for

the respondent, this appeal is not maintainable

before this Court and the appropriate remedy for

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the appellant would be to proceed under Section

19 of the Family Courts Act, 1984. The learned

counsel for the appellant submits that the order

of rejection of plaint, has been interpreted by

this Court to be an order which is interlocutory

because, it does not decide the rights of the

parties finally and vis-a-vis the suit. The

reliance has been placed in this regard on the

view taken by the learned Single Judge of this

Court in the case of Dr. Sumit S/o.

Narayanprasad Fogla Vs. Sou. Shradha w/o

Sumit Fogla, reported in 2015(5) ALL MR 501.

So, it is further submitted that the remedy of

appeal would have to be found in the provisions

of Order 43 Rule 1(a) of Civil Procedure Code

which is a remedy of appeal against the order

passed under Order 7 Rule 10 of the Civil

Procedure Code. This is however, refuted by the

learned counsel for the respondent contending

that this particular provision of the Civil

Procedure Code cannot be said to be applicable

to the order passed by a Family Court,as the one

involved here, for the reason that a Family Court

is not a Civil Court and that there is a difference

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between a Civil Court proper and a Civil Court

considered to be the Civil Court by deeming

fiction of law. He also places reliance upon the

cases of Radhey Shyam Anr. Vs. Chhabi

Nath Ors. Reported in (2015) 5 SCC 423,

Malay Kumar Ganguly Vs. Dr. Sukumar

Mukherjee Ors. Reported in (2009) 9 SCC

221 Para 37 to 39, Jagadguru

Annadanishwara Maha Sawaji Vs. V.C.

Allipur Anr. Reported in (2009) 4 SCC 625

Para 8 and 11, Nahar Industrial Enterprises

Ltd. Vs. Hong Kong Shanghai Banking

Corporation reported in (2009) 8 SCC 646

and Dr. Baliram Waman Hiray Vs. Justice B.

Lentin Ors reported in (1988) 4 SCC 419.

3. So far as the remedy of appeal

available under Section 19 of the Family Courts

Act, 1984 is concerned, I must say that the

learned counsel for the appellant is right in his

submission that this remedy is not available for

challenging a kind of an order which is sought to

be impugned here. This order is about rejection

of the plaint holding that the Family Court does

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not have jurisdiction and it is passed by invoking

the powers of the Court under Order 7 Rule 10

of the Civil Procedure Code. The test for

determining an order to be an interlocutory has

been laid down by the Hon’ble Apex Court in the

case of V. C. Shukla Vs. State throu C.B.I.

reported in 1980 Supp. SCC 92 by referring to

several cases including one of Kuppuswami Rao

Vs. King reported in AIR 1949 FC 1 which has

been followed by learned Single Judge of this

Court in Dr. Sumit (supra) The test as

expressed by the Hon’ble Apex Court is “……..the

test of finality was whether the order disposed of

the rights of the parties. The finality must be a

finality in relation to the suit.” Obviously, an

order of rejection of plaint passed under Order 7

Rule 10 of the Civil procedure Code neither

finally disposes of the rights of the parties nor

suit, rather it implores the parties to assert their

rights before a proper forum. So, as rightly

submitted by the learned counsel for the

appellant that any order which decides the issue

of jurisdiction one way or the other is not a final

order, but an interlocutory order. The appeal

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remedy provided under Section 19 of the Family

Courts Act is about final order and it contains an

express bar against an interlocutory order. That

remedy, thus is not available to the appellant in

the present case.

4. So, the question is as to which

remedy would be available to the appellant?

The appellant cannot be left remedyless and that

is for sure. The general remedy available under

the writ jurisdiction of this Court would have its

own limitations. Therefore, an endeavor will

have to be made to discover if there is any other

effective remedy provided to the aggrieved

parties facing a situation as the appellant is up

against here. Section 10(1) of the Family Courts

Act would provide a veritable guidance to us to

resolve the issue. It reads thus:-

“(1) Subject to the other provisions of this
Act and the rules, the provisions of the
Code of Civil Procedure, 1908 (5 of 1908)
and of any other law for the time being in
force shall apply to the suits and
proceedings [other than the proceedings
under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974)] before a
Family Court and for the purposes of the
said provisions of the Code, a Family
Court shall be deemed to be a civil court
and shall have all the powers of such

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court. ”

5. It is clear from a reading of this

Section that the provisions of Civil Procedure

Code are expressly made applicable to the

Family Courts and that in order to remove any

doubt which anybody may perhaps entertain

about the nomenclature of the Court, which is of

“Family Court”, the legislature has expressed

itself to clear it off in so many words that

“Family Court shall be deemed to be a civil

court”. This Section on a careful look at it,

would show that it is capable of being divided in

two parts. First part relates to the applicability

of the provisions of the Civil Procedure Code to

a Family Court which has the effect of clothing

a Family Court with all those powers a civil

court would have under the Civil Procedure

Code. Second part contains a declaration of

legislative intent. The legislature intends that

this Court, by fiction of law, be deemed to be a

Civil Court. A combined reading of these two

parts would clearly show that a Family Court

has got all those powers of a civil court which it

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has under the Provisions of Civil Procedure Code

and for all purposes, it is considered to be a Civil

Court. When the law declares status of a

particular Court in this fashion, the status of that

Court cannot be considered to be separate and

distinct from that of a Civil Court. It can not be

distinguished from that of a naturally born civil

court. The reason being that as long as the

status and powers of both the Courts are same,

as I see in both these Courts, it makes no

difference whether a progeny is born naturally

of fictionally. After all, it is for parents to

distinguish between their natural progeny and

artificially born progeny and if the parents treat

them equally and see no difference in them,

nobody else can treat and see them differently.

Here, the legislature, the great begetter of laws,

has accorded Family Court such equal status

and treatment and so nobody can, in my humble

view, has a right to thrust inferior status on it.

To say otherwise is to go against the legislative

intent. Therefore, I find that a Family Court, by

virtue of the provisions of Section 10 of the

Family Courts Act, would have to be considered

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as equal to a civil court, no less and no more.

6. Now, what is left for this Court is to

find out if the order passed by the Family Court

invoking its power under Order 7 Rule 10 would

be amenable to a remedy of appeal available to

an aggrieved party under the provisions of the

Civil Procedure Code or not. This remedy of

appeal can be found to be expressly provided

under Order 43 Rule 1(a) of the Civil Procedure

Code and thus, I find that this appeal is tenable.

7. In the cases relied upon by the

learned counsel for the respondent, Hon’ble

Apex Court has laid down the parameters by

which a Court could be considered or not

considered as a Civil Court. These parameters

have been admittedly determined in the cases

where the provisions of different statutes were

under consideration. In all these cases, the

provision of Section 10 of the Family Courts Act

admittedly was not under consideration and the

law laid down by the Hon’ble Apex Court in

these cases was only in the context of those

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particular provisions of law. Therefore, in my

humble opinion, these cases would lend no

support to the stand taken by the respondent.

8. The view taken by me that an order

passed by a Family Court under the provisions of

Order 7 Rule 10 of Civil Procedure Code is

amenable to challenge in the nature of appeal

provided under Order 43 Rule 1(a) also finds

support in a similar view taken by the Alahabad

High Court in the case of Bhagwati Pandey Vs.

Shyam Narayan Pandey and others reported

in 2012(2) Civil LJ 618 which in fact, is the

case relied upon not only by the appellant also

by the respondent.

9. There are two more contentions

raised by the learned counsel for the respondent.

These contentions are that Section 14 of the

Family Courts Act excludes the applicability of

the provisions of the Evidence Act and as held

by the Hon’ble Supreme Court, whenever

provisions of Evidence Act are not made

applicable, such a provision stands as one of the

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indicators that the Court is not a civil court. The

second contention is that the provisions of

Section 104 of the Civil Procedure Code as well

as that of Order 43 Rule 1(a), both are

substantive provisions and not procedural and

therefore, would not be applicable to any order

passed by the Family Court. The argument does

not appeal to reason in view of the effect that

Section 10 of the Family Courts Act has on

status and powers of a Family Court which has

been elaborated in detail in the previous

paragraph and therefore, the argument appears

to be unsound. It is rejected accordingly.

10. In view of above, I find that there is

no merit in the preliminary objection and it is

rejected.

Matter be listed on 18.12.2017.

JUDGE
Gohane

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