# Bhanu Gandotra v. Addl. Principal Judge Family Court, Lko. & Anr

- **Citation:** (2022) 12 ILRA 897
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-07
- **Case number:** Matter Under Article 227 No. 23974 of 2021
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhanu-gandotra-v-addl-principal-judge-family-court-lko-anr-48061
- **Pages:** 4

## Headnote

Civil Law - Family Court Act, 1984-Section
19
(1)-Opportunity
for
filing
of
written
statement by Petitioner closed-impugned ordersaid order effected the right of the Petitioner-is
an interlocutory judgment-section 19 (1) of the
Act, 1984 provides remedy of Appeal-impugned
order is an intermediary or interlocutory
Judgment-remedy
of
Appeal-petition
under
Article 227 not maintainable.

Petition dismissed. (E-9)

List of Cases cited:

## Text

12 All. Bhanu Gandotra Vs. Addl. Principal Judge Family Court, Lko. & Anr.
897
left for decision of the competent Court. In
such circumstances, it could not be said
that for the purpose of granting the relief
claimed by the plaintiff it was absolutely
necessary for the Small Causes Court to
determine finally the title to the property.
The tenant-respondent by merely denying
the relationship of landlord and tenant
between himself and the plaintiff could not
avoid the eviction proceeding under the
Rent Control Act. That is neither the
language nor the purpose of the provisions
in Section 23(1) of the Small Causes Court
Act.

9. In view of above, therefore, I am
not able to sustain the orders passed by the
Trial Judge as well as court sitting in
revision allowing subsequent amendment
application
moved
by
the
defendant
respondent. However, since, it is always
open for the Trial Judge to go incidentally
into the question of title of the landlord so
as to determine his entitlement to recover
the rent from the defendant tenant, it will
be open for the defendant to lead such
evidence as may be permissible and
admissible in law and in the event any such
evidence is led, that may be examined to
determine a point of title of the land lord
even whiling going incidentally into that
question by the Trial Judge .

10. Subject to aforesaid liberty
granted to the defendant , the orders passed
by the Trial Court dated 14.12.2017 and
that of Court sitting in revision dated 25th
August, 2021 are hereby set aside.

11. With the aforesaid observations
and directions, this petition stands allowed.
----------
(2022) 12 ILRA 897
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.12.2022
BEFORE

THE HON'BLE ABDUL MOIN, J.

Matter Under Article 227 No. 23974 of 2021

Bhanu Gandotra ...Petitioner
Versus
Addl. Principal Judge Family Court, Lko. &
Anr. ...Respondents

Counsel for the Petitioner:
Aishwarya
Pratap
Singh,
Sandeep
Kumar
(Trivedi)

Counsel for the Respondents:
Ram Raj, Risabh Raj

Civil Law - Family Court Act, 1984-Section
19
(1)-Opportunity
for
filing
of
written
statement by Petitioner closed-impugned ordersaid order effected the right of the Petitioner-is
an interlocutory judgment-section 19 (1) of the
Act, 1984 provides remedy of Appeal-impugned
order is an intermediary or interlocutory
Judgment-remedy
of
Appeal-petition
under
Article 227 not maintainable.

Petition dismissed. (E-9)

List of Cases cited:

1. Smt. Kiran Bala Srivastava Vs Jai Prakash
Srivastava, 2005 (23) LCD 1

2. Yogesh Arora Vs Smt. Jennette Yogish Arora
reported in (2018) 9 ADJ 379

3. Shah Babu Lal Khimji Vs Jayabein Kania,AIR
1981 SC 1786
(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner and Sri Ram Raj, learned counsel
appearing for the respondent.

2. Under challenge is the order dated
23.02.2021
passed
by
the
learned
Additional Principal Judge, Family Court-
898 INDIAN LAW REPORTS ALLAHABAD SERIES
10, Lucknow by which opportunity for
filing of written statement by the petitioner
has been closed.

3. A preliminary objection has been
raised by Sri Ram Ram, learned counsel
appearing for the respondent that the
petition
filed
under Article
227
of
Constitution of India would not be
maintainable
inasmuch
as
the
order
challenged is an order passed by the
learned Family Court dated 23.02.2021
whereby the right of the petitioner to file a
written statement has been closed. He
contends that taking into consideration
Section 19 of the Family Court Act, 1984
(hereinafter referred to as 'Act, 1984') the
order impugned has got the trappings of a
final order as such, the petitioner has a
statutory remedy of filing of an appeal and
consequently, the petition filed under
Article 227 of Constitution of India is not
maintainable. Reliance has been placed on
a full bench judgment of this Court in the
case of Smt. Kiran Bala Srivastava Vs.
Jai Prakash Srivastava reported in 2005
(23) LCD 1 as well as the judgment of this
Court in the case of Yogesh Arora Vs.
Smt. Jennette Yogish Arora reported in
(2018) 9 ADJ 379.

4. It is argued that the Full Bench of
this Court has set forth as to what order
would have the trappings of a final order
and accordingly, considering the aforesaid
judgment of the Full Bench and the order
impugned having the trappings of the final
order, the petitioner has a remedy of filing
of an appeal against the said order.

5. On the other hand, learned counsel
for the petitioner states that the right of
filing of written statement has been closed
by means of the impugned order and
consequently, the same would not fall
within the ambit of having the trapping of a
final order and as such, the instant petition
would not be maintainable.

6. Having heard the learned counsel
appearing for the contesting parties and
having perused the records what emerges is
that the full bench of this Court in the case
of Smt. Kiran Bala Srivastava (supra)
has held as under:-

"19. Interpreting the word "judgment"
appearing in clause 15 of Letters Patent
"Bombay" in Shah Babulal Khimji v.
Jayaben, AIR 1981 SC 1786, their
lordships of the Apex Court held that those
orders which decided matters of moment or
which affected vital and valuable rights of
the party or which tended to work serious
injustice to the party concerned, fell within
he expression "judgment" appearing in
relevant clause of Letters Patent. Their
lordships said that there could be following
three kinds of judgments:

1. "A final Judgment: A judgment
which decides all the questions or issues in
controversy so far as the trial Judge is
concerned and leaves, nothing else to be
decided. This would mean that by virtue of
the judgment, the suit or action brought by
the plaintiff is dismissed or decreed in part
or in full. Such an order passed by the trial
Judge indisputably and unquestionably is a
judgment within the meaning of the Letters
Patent and even amounts to a decree so
that an appeal would lie from such a
judgment to a Division Bench.

2. A preliminary judgment: this kind
of a judgment may take two forms (a)
where the trial Judge by an order dismisses
the suit without going into the merits of the
suit but only on a preliminary objection
raised by the defendant or the party
opposing on the ground that the suit is not
12 All. Bhanu Gandotra Vs. Addl. Principal Judge Family Court, Lko. & Anr.
899
maintainable. Here also, as the suit is
finally decided one way or the other, the
order passed by the trial Judge would be a
judgment finally deciding the cause so far
as the trial Judge is concerned and,
therefore, appealable to the larger Bench,
(b) Another shape which a preliminary
judgment may take is that where the trial
Judge passes an order after hearing the
preliminary objections raised by the
defendant relating to maintainability of the
suit, e.g. bar of jurisdiction, res-judicata, a
manifest defect in the suit, absence of
notice under Section 80 and the like, and
these objections are decided by the trial
Judge against the defendant, the suit is not
terminated but continues and has to be
tried on merits but the order of the trial
Judge rejecting the objections doubtless
adversely affects a valuable right of the
defendant who, if his objections are valid,
is entitled to get the suit dismissed on
preliminary grounds. Thus, such an order
even though it keeps the suit alive,
undoubtedly decides an important aspect of
the trial' which affects a vital right of the
defendant and must, therefore, be construed
to be a judgment so as to be appealable to
a larger Bench.

3.
Intermediary
or
interlocutory
judgment: Most of the interlocutory orders
which contain the quality of finality are
clearly specified in clauses (a) to (w) of
Order 43, Rule 1 and have already been
held by us to be judgments within the
meaning of the Letters Patent and,
therefore, appealable. There may also be
interlocutory orders which are not covered
by Order 43, Rule 1 but which also possess
the characteristics and trappings of finality
in that, the orders may adversely affect a
valuable right of the party or decide an
important aspect of the trial in an ancillary
proceeding. Before such an order can be a
Judgment the adverse effect on the party
concerned must be direct and immediate
rather than indirect or remote "

7. From a perusal of the aforesaid
judgment it emerges that the Full Bench
while placing reliance on the judgment of
the Apex Court in the case of Shah Babu
Lal Khimji Vs. Jayabein Kania reported
in AIR 1981 SC 1786 has held that there
could be three kinds of judgments namely
(a) final judgment (b) a preliminary
judgment
and
(c)
intermediary
or
interlocutory judgment. In the instant case,
admittedly the order impugned is neither a
final judgment nor a preliminary judgment
and as such, this Court would have to
consider as to whether the forfeiture of
right of filing of written statement of the
respondent before the learned Family Court
could be said to an intermediary or
interlocutory judgment.

8. From a perusal of the Full Bench
judgment as passed on the basis of the
judgment of the Apex Court in the case of
Shah Babu Lal Khimji (supra) it emerges
that there can be interlocutory orders which
are not covered by Order 43 Rule 1 CPC
but which also possess the characteristic
and trapping of finality in the sense that the
orders may adversely effect a valuable right
of the party or decide an important aspect
of the trial in ancillary proceedings. Before
such an order can be considered to be an
intermediary or interlocutory judgment, the
adverse effect on the party concerned must
be direct and immediate rather than indirect
or remote.

9. From a perusal of order impugned
it emerges that the learned Family Court
has closed the right of the respondent
therein/ petitioner herein of filing of a
written statement. Thus, from the said order
it is apparent that the said order has
900 INDIAN LAW REPORTS ALLAHABAD SERIES
effected the right of the petitioner of filing
of his written statement and the same has a
direct effect on the petitioner inasmuch as
his reply is not to be considered. Thus,
keeping in view the law laid down by the
Full Bench judgment in the case of Smt.
Kiran Bala Srivastava (supra) along with
the judgment of Apex Court in the case of
Shah Babu Lal Khimji (supra) it clearly
emerges that the order impugned can be
termed
to
be
an
intermediary
or
interlocutory judgment. Learned counsel
for the petitioner has failed to produce any
judgment which has laid law to the
contrary.

10. Section 19 (1) of the Family Court
Act, 1984 (hereinafter referred to as "Act,
1984") provides a remedy of an appeal. The
said provision provides that 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 law.

11. As this Court has already held that
the order impugned is an intermediary or
interlocutory judgment consequently, it
would not fall within the ambit of being an
interlocutory order and as such, the
petitioner has a remedy of filing of an
appeal under Section 19 (1) of the Act,
1984.

12. Accordingly, once the petitioner
has a statutory remedy of filing of an
appeal, the instant petition filed under
Article 227 of Constitution of India would
not be maintainable. The petition is
dismissed leaving it open to the petitioner
to pursue the remedy as available to him.
----------
(2022) 12 ILRA 900
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 9605 of 2014

Girish Kumar Garg ...Petitioner
Versus
Kali Charan & Anr. ...Respondents

Counsel for the Petitioner:
Sri Kshitij Shailendra

Counsel for the Respondents:
Sri Ram Kishor Pandey

Tenancy law-Landlord wanted the shop
facing the market on the road to settle
his second son-as he was doing business
by placing material in corridor/passage in
between
the
shop
and
building-
aggrieved
against
impugned
orderrejecting release application of landlordon
ground
of
sufficient
alternative
accommodation-5 th shop-on the back of
the
building
of
the
landlord
in
assessment register-its not a shop but an
open entry in the back room-both courts
have concurred on the bona fide needthereafter landlord cannot be suggested
to run business in the backyard area in
order to accommodate tenant.

W.P. allowed. (E-9)

List of Cases cited:

1. Shiv Sarup Gupta Vs Dr. Mahesh Chand Gupta
(1999) 6 SCC 222

2. Damodar Sharma Vs Nandram Deviram, AIR
1960 MP 345 (FB)

3. Ragavendra Kumar Vs Firm Prem Machinery
& Co (2000) 1 SCC 679

4. Prativa Devi Vs T.V. Krishnan (1996) 5 SCC
353

5. Sait Nagjee Purushotham & Co. Ltd. Vs
Vimalabai Prabhulal (2005) 8 SCC 252