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Is an Order passed by Family Court Setting Aside an Ex parte Decree Appealable ?

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

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.

“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.

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).

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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.

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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. (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.

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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. (emphasis supplied).

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.

 

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