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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)
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Office notes, Office Memoranda of
Coram, appearances, Court’s orders Court’s or Judge’s Orders.
or directions and Registrar’s orders.
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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
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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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