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Ankit Saxena vs Sri Mohit Saxena And Another on 17 October, 2019


Court No. – 34

Civil Misc. Delay Condonation Application No. 1 of 2019


Case :- FIRST APPEAL DEFECTIVE No. – 262 of 2019

Appellant :- Ankit Saxena

Respondent :- Sri Mohit Saxena And Another

Counsel for Appellant :- Bhaskar Bhadra,Devendra Vikram Singh

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

1. This is an application seeking condonation of delay in filing appeal.

2. Heard.

3. Cause shown is sufficient.

4. Delay in filing appeal is hereby condoned.

5. This application is allowed.

6. Let this appeal be registered with regular number and old number shall also continue to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two number.

Order Date :- 17.10.2019

Siddhant Sahu

Court No. – 34

Case :- FIRST APPEAL DEFECTIVE No. – 262 of 2019

Appellant :- Ankit Saxena

Respondent :- Sri Mohit Saxena And Another

Counsel for Appellant :- Bhaskar Bhadra,Devendra Vikram Singh

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

1. Heard Sri Devendra Vikram Singh, learned counsel for appellant and perused the material available on record.

2. In our view, this appeal itself is not maintainable and even otherwise on merit, there is no ground justifying interference by this Court.

3. An application for custody of minor children was filed under Section 10 of Guardians and Wards Act, 1890 (hereinafter referred to as “Act, 1890”) by plaintiff-respondent-1, Mohit Saxena. Appellant-defendant-2 filed an objection under Order VII Rule 11 of Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) that he has unnecessarily been made party in plaint since no cause of action arise against him and only to harass him, he has been made party in plaint, therefore, suit filed against him should be rejected. Application of appellant has been rejected by Principal Judge, Family Court, Bareilly vide order dated 06.10.2018 by recording a finding that if some party has unnecessarily been impleaded, this cannot be a ground under Order VII Rule 11 of CPC for rejection of plaint. Such order has not adjudicated the rights of parties and it cannot be said to be a final order but it is an interlocutory order.

4. What an ‘interlocutory order’ is, has been considered by Supreme Court in V.C.Shukla vs. State through CBI, AIR 1980 SC 962 and following propositions have been laid down :

“(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;

(2) that the concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order;

(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term ‘interlocutory order’ in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;

(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;

(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Article 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused.”

5. In Webster’s New World Dictionary “interlocutory” has been defined as “an order other than final decision”.

6. “Interlocutory” order in its common legal parlance means such order which does not decide rights and liabilities of parties concerning a particular aspect. Orders which are of purely interim or temporary nature, do not decide or touch the important rights or liabilities of parties are interlocutory orders.

7. In the context of Section 397(2) Cr.P.c., it has been held that orders summoning witnesses, adjourning cases, orders on bail, calling for reports and such other steps in aid of pending proceedings, are all interlocutory orders.

8. In Central Bank of India vs. Gokul Chand AIR 1967 SC 799, Court said that orders regarding summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and admissibility of a document or relevancy of a question are interlocutory orders.

9. In Mohan Lal Magan Lal Thacker vs. State of Gujarat 1968 CriLJ 876, Supreme Court held that finality of an order should not be judged by correlating that order with the controversy in the complaint. The fact that the controversy still remained alive was irrelevant. There may be some interlocutory orders, which may have effect of becoming final order and they are appellable.

10. In Amar Nath and others vs. State of Haryana and others (1977) 4 SCC 137 an order for summoning accused persons was held to be not an “interlocutory order” but an order whereagainst revision under Section 397 Cr.P.C. was maintainable on the ground that it affects valuable right of accused since he has been summoned for facing the trial and it admittedly prejudiced his rights and therefore, revision is maintainable.

11. An order passed under Sections 91 and 311 Cr.P.C. whether ‘interlocutory’ or not came up for consideration in Sethuraman vs. Rajamanickam (2009) 5 SCC 153. Court held that such orders are ‘interlocutory orders’ and hence not revisable under Section 397(2) Cr.P.C.

12. Even otherwise, objection raised by appellant for rejection of plaint was wholly misconceived, inasmuch as, for impleadment of appellant-defendant-2, which according to him should not have been impleaded, does not render the plaint susceptible or liable to be rejected under Order VII Rule 11 of CPC, as no such ground has been provided therein.

13. Appeal is dismissed as not maintainable as also on merits at the stage of hearing under Order 41 Rule 11 of CPC.

Order Date :- 17.10.2019

Siddhant Sahu



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