Single Judge held maintenance-enhancement order from Family Court not maintainable under Article 227 as statutory appeal under Section 19 lies before Division Bench to preserve judicial decorum.
Application dismissed as not maintainable; liberty granted to prefer appeal under Section 19 of Family Courts Act.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7951 of 2012
====================================================== 1. Rabindra Prasad Son Of Late Basudeo Prasad Resident Of MohallaSultanganj, P.O.- Mahendru, District- Patna .... .... Petitioner/s Versus 1. Sita Devi C/O Upendra Kumar Alias Bablu, Mohalla - Nalapar Nai Gali, Post - Begumpur, P.S.- Chowk, Patna City .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mrs. Soni Shrivastava For the Respondent/s : Mr. Aditya Narain Singh No.I. ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 2 19-09-2013 This application under Article 227 of the Constitution of India has been filed seeking quashing of the order dated 16.3.2012 passed by learned Additional Principal Judge, Family Court, Patna in Maintenance Case No. 91(M) of 2005, whereby he has ordered for enhancement of maintenance allowance from sum of Rs. 500/- to Rs. 5,000/- per months in favour of the respondent.
I have heard Mrs. Soni Shrivastava, learned counsel for the petitioner and Mr. Aditya Narain Singh, learned counsel for the respondent.
In view of the fact that I am going to decide this matter only on the question of maintainability of the present application under Article 227 of the Constitution of India, I do not
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intend to go into the merits of the respective claims of the parties decided in the order impugned.
This is not in dispute that an appeal is maintainable against the impugned order under Section 19 of the Family Court Courts Act, 1984 (hereinafter referred to as the „Act‟). Section 19(1) of the Act reads thus:-
“19(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.”
Further, Section 19 (5) of the said Act provides that no appeal or revision would lie to any Court from any judgment, order of decree of a Family Court. Sub-section (6) provides that an appeal preferred under sub-section 1 of Section 19 shall be heard by a Bench consisting or two or more judges. Evidently, had an appeal been preferred against the impugned order, it would have been heard by a Division Bench of this Court.
Learned counsel for the petitioner, however, has, in reply to an objection taken by the learned counsel for the respondent on the point of maintainability of this application under Article 227 of the Constitution of India in view of alternative
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remedy available under Section 19(1) of the Act, submitted that existence of alternative remedy is no bar for this Court to entertain an application under Article 227 of the Constitution of India in a supervisory jurisdiction. She has submitted that the power of this Court under Article 227 of the Constitution of India is similar to that of Article 226 of the Constitution of India with the only difference that such powers under Article 227 of the Constitution of India are exercised under its supervisory jurisdiction only over the Courts subordinate to it. With this reasoning, she submits that if existence of alternative remedy puts no absolute bar on exercise of writ jurisdiction under Article 226 of the Constitution of India in view of several judicial pronouncements, there could be no such bar while exercising supervisory jurisdiction under Article 227 of the Constitution of India also.
She has submitted that when the illegality in the impugned order is glaring on the face of it and visible per se, this Court exercising jurisdiction under Article 227 of the Constitution of India may interfere, in spite of there being remedy of appeal under Section 19(1) of the Act.
She has placed reliance upon a judgment of Supreme Court reported in ( 2003) 6 SCC 675 ( Suryadeo Rai Vs. Ram Chandra Rai) so as to submit that the parameters of exercising
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jurisdiction to issue a writ of certiorari and those calling for exercising of supervisory jurisdiction are almost similar. She has also placed reliance upon another Supreme Court judgment reported in ( 2011) 5 SCC 697 in case of Union of India Vs. Tatia Construction Pvt. Ltd, so as to contend that existence of alternative remedy is not an absolute bar for exercise of jurisdiction under Article 226 of the Constitution of India and for that matter under Article 227 of the Constitution of India.
Learned counsel for the petitioner may be right in her submission that existence of alternative remedy puts no absolute bar for this Court to exercise jurisdiction under Articles 226 or 227 of the Constitution of India. These are only self imposed restrictions, under which the superior Courts refuse to exercise extra-ordinary jurisdiction vested under Articles 226 and 227 of the Constitution of India, where an alternative remedy is available to the aggrieved person. However, such principle, in my opinion, cannot be applied in the present facts and circumstances of the case where statutory alternative remedy is available by way of appeal which is required to be heard by a Division bench of this Court. In my opinion, where the statutory appeal is available against the impugned order and is required to be heard by a Division Bench, a single Judge Bench of this Court exercising
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supervisory jurisdiction under Article 227 of the Constitution of India can not entertain an application seeking quashing of such order. In my opinion, this is the demand of judicial decorum and propriety. I have no hesitation in holding that an application seeking quashing of an order against which an appeal would lie under Section 19(1) of the Act before a Division Bench of this Court, a Bench of single Judge exercising jurisdiction under Article 227 of the Constitution of India cannot entertain a petition against such order.
In view of the above, I do not find this application to be maintainable and is accordingly, dismissed.
The petitioner will obviously have the liberty to prefer and appeal under Section 19 of the Family Courts Act, 1984.
(Chakradhari Sharan Singh, J)
Arun Kumar/-
3 issues framed by the court
Whether existence of alternative statutory remedy under Section 19(1) of Family Court Courts Act bars court from exercising jurisdiction under Article 227.
Whether a single judge bench can entertain quashing petition when statutory appeal lies before a Division Bench.
Whether application seeking quashing of maintenance order is maintainable under Article 227 when appeal is available.
Colour shows how this judgement treated each authority
Suryadeo Rai Vs. Ram Chandra RaiReferred¶14
(2003) 6 SCC 675, Suryadeo Rai Vs. Ram Chandra Rai · Who else cites this
Union of India Vs. Tatia Construction Pvt. LtdReferred¶15
(2011) 5 SCC 697, Union of India Vs. Tatia Construction Pvt. Ltd · Who else cites this
2 provisions across 2 enactments
Rabindra Prasad
Sita Devi
Chakradhari Sharan Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Chakradhari Sharan Singh
Parties & counsel
