S.R.Singh, J. - (1.) Constant marital bickering dnd consequent stand off between the petitioner and the respondent appears to be the causative factors for institution of a petition by the petitioner under Section 13 of the Hindu Marriage Act. 1955, seeking dissolution of the marriage on the ground of 'wilful neglect' and 'desertion' by the wife-respondent herein. The learned Judge, Family Court passed an order on 29.9.1997 that the case would proceed exparte against the defendant. Thereafter, on the basis of exparte evidence, the matter escalated into a decree passed for dissolution of marriage vide judgment dated 16.10.1997, reinforced with the finding that "desertion and wilful neglect on the part of Smt. Rekha Gupta is proved". On coming to know of the exparte judgment, the respondent-wife moved an application with the prayer to set aside the order dated 29.9.1997 and the judgment and decree dated 16.10.1997. The reason ior non-appearance on material dates was that she was residing with her father at Pathankot and owing to her own ailments, she could not attend the court as a result of which the case proceeded exparte against her and ultimately, the matter culminated in exparte decree on the basis of exparte evidence adduced by the husband. It is also alleged that she was stymed in appearing on the dates fixed in the case through a lawyer in that the lawyers are not permitted to prosecute the cases in Family Courts. The learned Judge Family Court, deduced the cause for default and absence on the relevant dates to be 'sufficient' and resultantly, set aside the order dated 29.9.1997 and the ex-parte judgment and decree dated 16.10.1997 by means of the order dated 25.4.98. Despaired of the order, the pethioner-husband has filed the instant petition for quashing the order dated 25.4.1998.
(2.) Sri A.D. Prabhakar, learned counsel appearing for the respondent, to begin with, raised a preliminary objection as to the maintainability of the writ petition on the ground that the petitioner had an alternative remedy of appeal under Section. 19 of the Family Courts Act, 1984, Sri K.K. Arora, appearing for the petitioner, tried to meet and controvert the preliminary based on the submissions that the order impugned herein has the complexion of an 'interlocutory order' and therefore, no appeal lies against it. The learned counsel canvassed that as provided in sub-section (1), appeal lies against "every judgment or order, noi being an interlocutory order, of the Family Court". Dwelling on his submission, the learned counsel urged that an order allowing application under Order 9, Rule 13 CPC partakes of the nature of an 'interlocutory order' in that the suit stands revived. Sri Arora made a further submission that an appeal under Order 43, Rule 1 CPC lies against an order rejecting an application for setting aside an exparte decree arid not against an order allowing the application under order 9, Rule 13 CPC. I have scanned the submissions made at the bar, for its substance. Section 19 of the Family Courts Act, 1984, in so far as it is germane to the controversy involved in this petition, is excerpted below: "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 apppeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and pn 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): Provided that nothing in this section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991). (3) x x x x (4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding. (5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a family court".
(3.) Expression 'interlocutory order' occurring in Section 397(2) of the Code of Criminal Procedure, 1973 came up for consideration before the Apex Court in the case of Madhu Limave v. State of Maharashtra in which the Apex. Court held as under: "12. Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In volume 22 of the third edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606 :- ".......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 must therefore be considered separately in relation to the particular purpose for which it is required. In para 1607 it is said "In general a judgment or order which determines the principal matter in question is termed 'final'. In para 1608 at pages 744 and 745 we find the words: "An order which does not deal with the final rights of the parties, but either (1) is made before judgment and gives no final decision on the matter of procedure or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out is termed "interlocutory". An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals." 13. In S. Kuppuswami Rao v. The King (3) K'ania, C.J., delivering the judgment of the Court has referred to some English decisions at pages 185 and 186 Lord Esher M.R. said in Saleman Warner (4), "if their decision, which ever-way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way will finally dispose of the matter in dispute, but, if given in the other will allow the action to go on, then I think it is not final, but interlocutory." To the same effect are the observations quoted from the judgments of Fry. L.J., and Lopes L.J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court (at that time there was no bar like Section 397(2) was not a "final order", within the meaning of Section 205(1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceedings could have ended but not vice versa........ 14. In passing, for the sake of explaining ourselves, we may refer to what has been said by Kania, C.J., in Kuppustuamt's case (supra) by quoting a few words from Sir George Lowndes in the case of Abdul Rahman v. D.K. Cassim & Sons (7). The learned Law Lord said with reference to the order under consideration in that case: "The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decided an important, and even a vital, issue in the case, but is left the suit alive, and provided for its rrial in the ordinary way."....." In VC. Shukla v. State, the Supreme Court held in paragraphs 23 and 95 as under: "23. Thus, summing up the natural and logical meaning of an interlocutory order the conclusion is inescapable that 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 however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Code or any other statute. That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in Section 11(1) of the Act (at page SC 999; AIR 1980). "95. Ordinarily speaking, the expression "interlocated in legal parlance is understood in contra/distinction to what is styled as final. In the course of a judicial proceeding before a court, for judicially determining the main dispute brought to the court for its resolution a number of situations arise, when 'that court goes on disposing of ancillary disputes raised by parties to the proceeding by making orders and unless the order finally disposes of a proceeding in a court all such orders during the course of a trial would be broadly designated 'interlocutory' orders. Such interlocutory orders are steps, taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding. To regulate the procedure only and do not affect any right or liability of the parties (See Central Bank of India v. Gokal Chand, AIR 1967 SC 799). Every such interlocutory order may for the time being, dispose of a particular point of controversy raised in the proceeding, yet nonetheless the order would be an interlocutory order unless by such an order the controversy between the parties is finally disposed.";