The petition challenged the Family Court's dismissal of an application for additional documents and witnesses, arguing it was not an interlocutory order appealable under the Family Courts Act. The court held the order was interlocutory, dismissed the petition, and upheld the appointment of the Local Commissioner.
The petition was dismissed; parties to bear own costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 31.10.2019 Date of Decision : 14.11.2019
CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA
CM(M) 1361/2019
Page 1
of the Family Courts Act, 1984 (hereinafter referred to as the ‘Act’) is maintainable. This is disputed by the learned counsel for the petitioner.
“19. Appeal.-
(1) Save as provided in sub-section (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. (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 sub-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) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
(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. (6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.”
CM(M) 1361/2019
Page 2
“26. We, thus, conclude as under:
i. In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19 (1) of the said Act to the Division Bench of this Court in view of the provisions of sub-section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that subsection (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said Act.
ii. No appeal would lie under Section 19 (1) of the said Act qua proceedings under Chapter 9 of the Cr.P.C. (Sections 125 to 128) in view of the mandate of sub-section (2) of Section 19 of the said Act.
iii. The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr.P.C. under sub-section (4) of Section 19 of the said Act. iv. As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act.”
CM(M) 1361/2019
Page 3
“In the course of the trial, the Trial Judge may pass a number of Orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the Trial Judge.” (Emphasis added)
CM(M) 1361/2019
Page 4
Section 19(1) of the Act. Clearly, the Impugned Order would, therefore, not be appealable under Section 19 of the Act. I find no merit in the preliminary objection raised by the learned senior counsel for the respondent.
“It is agreed that the wherever the stand taken in the replication is inconsistent with the stand taken in the divorce petition, the same would be considered by the Family Court at the time of final hearing. As far as the documents are concerned, the documents will not be exhibited unless the same are proved as per law. Liberty, as prayed, granted to the appellant to summon witnesses to prove such documents sought to be relied in accordance with law.”
CM(M) 1361/2019
Page 5
6. That now after getting free from the proceedings of the Ld. L.C. the Respondent got some time to trace all these documents from different places and is now filing the same on record and is also exhibiting them in her evidence by way of affidavit.”
under:-
CM(M) 1361/2019
Page 6
as she was under deep depression and was rigorously, day and night was attending the proceedings before the Ld. L.C. after her office hours even on holidays. The copy of the documents is being filed herewith as Annexure-A (Colly), and the original Photographs are filed herewith as Annexure-B (Colly).”
“Respondent also moved an application u/s 151 CPC for filing additional documents from internal page no. 5 to 28 annexed with the application. It is alleged that respondent went under deep depression due to the act of the petitioner as well as due to pressure of the evidence led by him and could not file the documents earlier. It is not in dispute that most of the documents annexed with the present application were already in the knowledge and possession of the respondent. Even if some documents were not in her possession, then also she had not filed any list of reliance to inform the court with whom those documents were lying which she could not produce before framing of issues. However, no such list of reliance was filed so these new documents cannot be taken on record. The grounds given in the application that due to depression and pressure, she could not search the documents is not believable because she admittedly used to attend her office, different seminars, used to visit outstation etc. and such conduct of the respondent create doubt about her theory that she was under depression. No date, time and place is given when she found these documents after great difficulties through in depth search. Moreover, it is not disclosed in the application how and in which manner these document are relevant to the defence of the respondent. The marriage between the parties is not in dispute so there is no need to file the photographs of the marriage. There is nothing in the application to show how the MBA and MA degree of the father of the respondent is relevant to decide any controversy regarding the matrimonial dispute of the parties. How the documents pertaining to education, work experience, conferences attended by the respondent, her place
CM(M) 1361/2019
Page 7
of posting, leave record etc. are relevant to any disputed fact is also not disclosed in the application. Similarly, how RTI reply obtained by some third person regarding non availability of indoor facilities in some dispensaries is necessary to be proved in defence is also not explained in the present application. I am of the opinion that on the basis of the vague and general averments without any solid ground and explanation itself does not entitle the respondent to file these new documents which otherwise also not concerned with the controversy in question. Hence, this application is liable to be rejected on these grounds.”
“Vide order dated 06.04.2018, the respondent was also given direction to file the list of witnesses within 10 days but that order was not compiled with by her. Now she has filed a list of witnesses mentioning the name of 20 witnesses to be examined in her defence on the last date of hearing only. The witnesses at Sr. No. 3 to 20 are the official witnesses who are to prove record pertaining to service, qualification etc. of the respondent. If the list of witnesses is compared with the application u/s 151 CPC, then it reveals that almost all the official witnesses have to prove the documents which are not allowed to be taken on record. When the application of the respondent u/s 151 CPC for filing the additional documents is already rejected above, then now there arises no question to summon these officials witnesses. Hence, the request made by the respondent to examine witnesses from Sr. No. 3 to 20 is rejected. Witness at Sr. No. 2 is the real brother of the respondent and he will prove the defence of the respondent so I am permitting only him to be examined by the respondent alongwith respondent herself through LC despite the fact that the list of witness was not filed in time.”
CM(M) 1361/2019
Page 8
CM(M) 1361/2019
Page 9
unless the same were proved as per law. In any case, this is not a matter of claiming parity. The petitioner has to stand on her own legs.
CM(M) 1361/2019
Page 10
control or could not have been placed on record by exercise of due diligence. As noted hereinabove, the main plank of the petitioner is one of seeking parity as if this is a matter of Article 14 of the Constitution of India. The petitioner further urged that these documents became necessary to be produced due to certain answers given by the respondent in his cross-examination. This cannot be accepted as a sufficient reason for the petitioner to be allowed to file additional documents on record at this belated stage.
CM(M) 1361/2019
Page 11
petitioner submits that the petitioner would have no objection if the Local Commissioner recording the evidence is changed by this Court. I do not find any ground having been made out in the petition for seeking such change. The Local Commissioner acts as an officer of the Court and therefore, cannot be changed at whims and fancies of the parties. 26. In view of the above, I do not find merit in the present petition. The same is dismissed. The parties shall bear their own cost.
NAVIN CHAWLA, J
NOVEMBER 14, 2019/Arya
CM(M) 1361/2019
Page 12
3 issues framed by the court
Whether the order refusing permission to file additional documents or summon additional witnesses constitutes an interlocutory order excluding it from appeal under Section 19(1) of the Family Courts A
Whether the High Court should interfere with the Family Court's dismissal of the petitioner's application for additional documents and witnesses under Article 227 of the Constitution of India.
Whether the appointment of a Local Commissioner to record evidence can be challenged before the High Court during pending proceedings.
Colour shows how this judgement treated each authority
Manish Aggarwal v. Seema Aggarwal & Ors.Referred¶20
FAO 388/2012, Manish Aggarwal v. Seema Aggarwal & Ors.
Colonel Ramesh Pal Singh v. Sughandhi Aggarwal.Referred¶27
MAT. APP.(FC) 211/2017, Colonel Ramesh Pal Singh v. Sughandhi Aggarwal.
Shah Babulal KhimjiExplained¶28
Shah Babulal Khimji (supra)
3 provisions across 3 enactments
Rajni Gupta
Vikas Gupta
Navin Chawla
As recorded by the court registry
A petition under Article 227 of the Constitution invoking the High Court's supervisory jurisdiction over subordinate civil courts.
Judgements on the same questions, provisions and authorities, from every court
