# Nagendra Sharma & Anr v. Court Of Prin. Judge Family Court Gonda & Anr

- **Citation:** (2024) 10 ILRA 226
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-18
- **Case number:** Writ-C No. 6354 of 2022
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagendra-sharma-anr-v-court-of-prin-judge-family-court-gonda-anr-51131
- **Pages:** 11

## Headnote

Civil Law - Family Court Act,1984 -Section
10-Writ
of
prohibition
restraining
the
respondent Family Court to proceed with Rule
13 C.P.C.- initiated by respondent no. 2-
claiming that Family Court has no jurisdiction to
entertain a petition under Order IX Rule 13 read
with Section 151 of C.P.C;- Section 10 of the
Family Court Act provides that the Civil
Procedure Code are applicable in proceedings
before the Family Court- the Family Court has
jurisdiction to entertain an application under
Order IX Rule 13 C.P.C. and therefore, no writ
of prohibition can be issued to respondent no.

## Text

226 INDIAN LAW REPORTS ALLAHABAD SERIES
of the appellant-writ petitioner has been taken
in the month of January, 2021. As per the
affidavit of the appellant-writ petitioner he is
now 35 years of age.

17. Looking into the aforesaid facts
and circumstances, we expressed our mind
for enhancing the monetary compensation
from Rs. 30,000/- to Rs. 5,00,000/- while
giving an opportunity to Sri Grijesh Tiwari,
learned counsel for the Law College to make
his submissions in that regard.

18. Sri Grijesh Tiwari, learned
counsel for the Law College could not
dispute the fact that it was on account of the
fault of the Law College the appellant-writ
petitioner was accorded admission, however,
on
the
question
of
enhancement
of
compensation, he only requested that the
amount of Rs. 5,00,000/- to be awarded as
compensation to the appellant-writ petitioner
is excessive and the Law College is not in a
position to make the said payment. He also
apprehends that, in case, the compensation of
Rs. 5,00,000/- is awarded to the appellantwrit petitioner then the remaining 54 students
would approach this Court.

19.
We have bestowed our
consideration on the said aspect and we find
that once it is admitted to the Law College that
the appellant-writ petitioner had not practised
fraud and he submitted all the relevant
documents and was accorded admission due to
the fault of the Law College then in order to
compensate the appellant-writ petitioner for
jeopardizing his academic career the amount
of Rs. 5,00,000/- to be awarded as monetary
compensation is reasonable and not excessive.

20 . Accordingly, the order of the
learned Single Judge insofar as it seeks to
uphold the decision of the University dated
04.01.2021 negating the claim of the
appellant-writ petitioner to be permitted to
pursue second semester of the LLB three years
programme for the academic session 2019-20
needs no interference. However, we modify
the order of the learned Single Judge dated
28.08.2024 passed in Writ-C No. 33767 of
2022
while
enhancing
the
monetary
compensation from Rs. 30,000/- to Rs.
5,00,000/- which shall be paid by the Law
College to the appellant-writ petitioner within
a period of six weeks from today.

21. In the eventuality, the Law
College does not make the said payment
within the stipulated period then the same shall
be recovered as arrears of land revenue and
paid to the appellant-writ petitioner.

22. With the aforesaid observations,
the present intra-court appeal is disposed of.

23. Though we have disposed of the
appeal, however, an affidavit of compliance
shall be filed by the Law College before the
Registrar General of this High Court within six
weeks.
----------
(2024) 10 ILRA 226
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.10.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Writ-C No. 6354 of 2022

Nagendra Sharma & Anr. ...Petitioners
Versus
Court Of Prin. Judge Family Court Gonda &
Anr. ...Respondents

Counsel for the Petitioners:
Amarendra Kumar Bajpai, Tejaswini Bajpai

Counsel for the Respondents:
10 All. Nagendra Sharma & Anr. Vs. Court Of Prin. Judge Family Court Gonda & Anr.
227
Amrendra Nath Tripathi, Meena Singh
(Kathayat)

Civil Law - Family Court Act,1984 -Section
10-Writ
of
prohibition
restraining
the
respondent Family Court to proceed with Rule
13 C.P.C.- initiated by respondent no. 2-
claiming that Family Court has no jurisdiction to
entertain a petition under Order IX Rule 13 read
with Section 151 of C.P.C;- Section 10 of the
Family Court Act provides that the Civil
Procedure Code are applicable in proceedings
before the Family Court- the Family Court has
jurisdiction to entertain an application under
Order IX Rule 13 C.P.C. and therefore, no writ
of prohibition can be issued to respondent no.
1.

W.P. dismissed. (E-9)

List of Cases cited:

1. Rabindra Singh Vs Financial Commissioner
Co-operation Punjab & ors. reported in 2008 7
SCC 663

2. East India Commercial Co. Ltd. Vs Collector of
Customs reported in AIR 1962 SC 1893

3. Govind Menon Vs U.O.I. (AIR) 1967 SC 1274
(1967)

4. Roopa Vs Santosh Kumar reported in 2004
SCC OnLine All 1157

5. Munna Lal and etc. Vs St. of U.P. & anr. etc.
reported in 1990 SCC OnLine All 119

6. Ranvir Kumar Vs Judge, Family Court,
Moradabad
&
ors.
reported
in
MANU/UP/0598/1998

7. Deep Mala Sharma Vs Mahesh Sharma
reported in MANU/UP/0283/1991

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard Shri Amrendra Kumar
Bajpai, assisted by Ms. Tejaswini Bajpai,
learned counsel for the petitioners, Shri
Ashok Mishra, Advocate holding brief of
Shri Amrendra Nath Tripathi, learned
counsel for respondents.

2. This petition has been filed for
the following relief:

 "I. To issue a writ, direction or
order in the nature of Prohibition to refrain
the O.P. no. 1 from acting beyond
jurisdiction by initiating proceedings under
Order XI Rule 13 read with Section 151
C.P.C. in Case No. 52 of 2019-Smt. Sarla
Sharma Vs. Nagendra Sharma & Another
for
recalling
the
judgment
dated
16.01.2019.

 II. To issue a writ, direction or
order in the nature of Certiorari to quash /
set asdie the ex-parte orders dated
29.05.2019 (Annexure Nos. 1 & 2) and
order dated 22.08.2022 (Annexure No. 13)
passed by the O.P. no. 1 in Case No. 52 of
2019- Smt. Sarla Sharma Vs. Nagendra
Sharma & Another."

3. Learned counsel for the
respondent submitted that since question of
jurisdiction is involved in the present writ
petition, therefore, he does not intend to file
counter affidavit and matter may be heard
and decided to which learned counsel for
the petitioner has no objection. Therefore,
matter is decided with the consent of the
parties without calling for a counter
affidavit.

4. Before considering the merits of
the case it will be useful to refer the brief
facts of the case. The petitioner No. 1 was
married to the respondent no. 2 on
13.03.1996 and out of their wedlock two
children were born on 06.06.1999 and
28.09.2002. Thereafter, certain differences
arose between the parties which led to
228 INDIAN LAW REPORTS ALLAHABAD SERIES
filing of certain cases against the petitioner,
details of which is given in paragraph no. 4
to 8 of the writ petition. The petitioner no.
1 thereafter filed an application under
Section 13 of the Hindu Marriage Act for
divorce being Case No. 1006 of 2017
(Nagendra Sharma v. Smt. Sarla Sharma)
in the court of Principal Judge, Family
Court, Gonda on 06.11.2017 and after
exchange of pleadings between the parties,
the application filed by the petitioner no. 1
under Section 13 of Hindu Marriage Act
was allowed by judgment and decree dated
16.01.2019 and 28.01.2019 passed by
Principal Judge, Family Court, Gonda. On
29.05.2019 the respondent no. 2 filed an
application under Order 9 Rule 13 C.P.C.
read with Section 151 C.P.C. against the
judgment and decree dated 16.01.2019 and
28.01.2019 passed by the Principal Judge,
Family Court, Gonda in Case No. 1006 of
2017 along with an application under
Section 5 of Limitation Act for condoning
the delay in filing the application under
Order IX Rule 13 C.P.C. and stay
application for staying the judgment and
decree dated 16.01.2019 and 28.01.2019.
The Principal Judge, Family Court by order
dated
29.05.2019
has
stayed
the
implementation of the judgment and decree
dated 16.01.2019 and 28.01.2019 and
issued notices to the petitioner no. 1 fixing
17.07.2019.

5. The petitioner has prayed a
writ
of
prohibition
restraining
the
respondent
no. 1
to
proceed
with
proceedings under Order IX Rule 13
C.P.C. initiated by respondent no. 2 on
the ground that in view of Section 19 &
20 of the Family Court Act, 1984, the
Principal Judge, Family Court has no
jurisdiction to entertain a petition under
Order IX Rule 13 read with Section 151
of C.P.C. and the orders passed in the
aforesaid
proceedings
are
without
jurisdiction.

6. Per contra, learned counsel
appearing for respondents has submitted
that the respondent no. 1 was well within
the jurisdiction to entertain a petition
under Order IX Rule 13 C.P.C. read with
Section 151 C.P.C. and has committed no
illegality in entertaining the same.

7. Before considering the rival
submission, it would be relevant to quote
the relevant provisions of law as well as
the
nature
and
scope
of
writ
of
prohibition:

 "Prohibition is an extraordinary
prerogative writ of a preventive nature,
its proper function being to prevent
courts,
other
tribunals,
officers
or
persons exercising judicial or quasijudicial
powers
from
usurping
jurisdiction or exercicing jurisdiction not
vested in them.

 In Halsbury's Laws of England, it
is stated: "The order of prohibition is an
order issuing out of the High Court of
Justice and directed to an ecclesiastical or
an inferior temporal court or to the Crown
Court, which forbids that court to continue
proceedings therein in excess of its
jurisdiction or in contravention of the laws
of the land."1

 Thus, prohibition is a judicial
writ, issued by a superior court directing a
subordinate court or an inferior tribunal
from exercising jurisdiction not vested in it
or from acting in excess of jurisdiction.
Under the Constitution of India, a writ of
prohibition
has
been
specifically
recognized both under Article 32 and
Article 226. It is directed either by the
10 All. Nagendra Sharma & Anr. Vs. Court Of Prin. Judge Family Court Gonda & Anr.
229
Supreme Court or by a High Court to any
subordinate court or inferior tribunal
prohibiting it from proceeding with the
matter over which it has no jurisdiction or
in excess thereof.

8. In case of East India
Commercial Co. Ltd. v. Collector of
Customs reported in AIR 1962 SC 1893,
the Supreme Court at page no. 1903 of the
judgment held that a writ of prohibition is a
judicial writ. It can be issued against a
judicial or quasi judicial authority, when
such authority exceeds its jurisdiction or
tries to exercise jurisdiction not vested in it.
It is an order directed to the inferior court
or tribunal forbidding it from continuing
with proceedings therein on the ground that
the proceeding is without or in excess of
jurisdiction or contrary to laws of the land
statutory or otherwise.

9. The paramount object of
prohibition is to prevent encroachment of
jurisdiction. Its function is to restrain
courts, tribunals and officers or authorities
exercising judicial or quasi-judicial powers
from usurping jurisdiction not vested in
them or from exceeding their authority by
confining them to the exercise of powers
conferred on them.

10. Writ of prohibition is not a
proceeding between the private litigants at
all. In fact, it is a proceeding between two
courts, a superior court and a inferior court
and as the means whereby the superior
court
exercises
its
power
of
superintendence over an inferior court by
keeping the later within the limits of the
jurisdiction conferred on it by law.

11. In case of absence or total lack
of jurisdiction, a writ of prohibition would
be available against a judicial or quasijudicial authority prohibiting it from
exercising jurisdiction not vested in it.
Again, a distinction must be drawn between
lack of jurisdiction and the manner or
method of exercising jurisdiction vested in
a court or tribunal. Prohibition cannot lie to
correct the course, practice or procedure of
an inferior court or a tribunal or against a
wrong decision on merits (Govind Menon
v. Union of India (AIR) 1967 SC 1274
(1967). Therefore, when a tribunal has
jurisdiction to make an order, but court or
tribunal in exercise of that jurisdiction
commits a mistake whether of fact or of
law, the said mistake can only be corrected
by an appeal, revision or proceedings under
Article 227 of Constitution of India and not
by a writ of prohibition.

12. Learned counsel for the
petitioners contended that in view of
Section 19 & 20 of the Family Court Act,
1984, it is apparent that the Principal Judge,
Family Court exercising jurisdiction under
the Family Court, 1984 has no jurisdiction
to entertain an application under Order 9
Rule 13 read with Section 151 C.P.C.

13. Section 19 & 20 of the Family
Court Act, 1984 are quoted as under:

 "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 or Criminal Procedure, 1973 (2 of
1974), or in any other law, an appeal
shall lie from every judgement 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
230 INDIAN LAW REPORTS ALLAHABAD SERIES
order passed under Chapter IX of the Code
of Criminal Procedure, 1973 (2 of 1974):

 Provided that nothing in this subsection 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
judgement or order of a Family Court.

 [(4) The High Court may, of its own
motion or otherwise, call for an 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.

 20. Act to have overriding effect.-
The provisions of this Act shall have effect
notwithstanding
anything
inconsistent
therewith contained in any other law for the
time being in force or in any instrument
having effect by virtue of any law other than
this Act."

14. Per contra, learned counsel
appearing for the respondents contended
that in view of Section 10 of the Family
Court Act, 1984, the provisions of Civil
Procedure Code, 1908 shall apply to the
suits and proceedings before a family court
subject to other provisions of the Family
Court Act or the rules made thereunder,
therefore, an application under Order 9
Rule 13 read with Section 151 C.P.C. is
maintainable before the Family Court. It
has been further contended by learned
counsel for the respondents that from the
perusal
of
the
application
filed
by
respondent no. 2 under Order 9 Rule 13
C.P.C., it is apparent that the petitioner by
committing fraud on the court has got filed
a written statement with forged signature of
the respondent no. 2 on 08.01.2018. The
respondent no. 2 never came to Gonda on
08.01.2018 nor engaged any counsel nor
has signed any vakalatnama and on
08.01.2018 and respondent no. 2 was at
Lucknow in her school. The respondent no.
2 has no information of the mediation
proceedings before the court below and
never appeared in Gonda and entire
proceedings
were
conducted
by
the
petitioner by committing fraud. It is also
submitted that since the judgment and
decree passed by the family court is
because of fraud committed upon the court
by the petitioner no. 1, therefore, the same
can be looked into by the court in exercise
of its inherent powers.

15. Section 10 of the Family Court
Act is quoted as under:

 "10.
Procedure
generally.-
(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
10 All. Nagendra Sharma & Anr. Vs. Court Of Prin. Judge Family Court Gonda & Anr.
231
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
and shall have all the powers of such court

 (2)Subject to the other provisions
of this Act and the rules, the provisions of
the Code of Criminal Procedure, 1973 (2 of
1974) or the rules made thereunder, shall
apply to the proceedings under Chapter IX
of that Code before a Family Court.

 (3)Nothing in sub-section (1) or
sub-section (2) shall prevent a Family
Court from laying down its own procedure
with a view to arrive at a settlement in
respect of the subject-matter of the suit or
proceedings or at the truth of the facts
alleged by the one party and denied by the
other."

16. A close scrutiny of Section 10
of Family Court Act clearly provides that
subject to the other provisions of this Act
and the Rules the provisions of Code of
Civil Procedure, 1908 and of any other law
for time 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 before a
Family Court and for the purposes of the
said provisions of the Code, Family Court
shall be deemed to be a civil court and shall
have all the powers of such court.

17. It is evident from perusal of
Section 10 of Family Courts Act that
provisions of Civil Procedure Code are
applicable to the proceedings before the
Family Courts. It would be pertinent to
observe here that provisions encoded in
Civil Procedure Code are based on
principle of natural justice and fair play,
hence all the provisions of Civil Procedure
Code
are
made
applicable
to
the
proceedings before Family Courts within
the meaning of Section 10 of the Family
Courts Act.

18. In case of Roopa v. Santosh
Kumar reported in 2004 SCC OnLine All
1157, the Division Bench of this Court was
considering a question as to whether the
Family Court has the power to adjourn the
case on an application moved by a party.
The Family Court rejected the adjournment
application on the ground that in the Family
Court Act, there is no provision for moving
an
application
for
adjournment
or
exemption of appearance and thereafter
passed final order rejecting the application
under Section 13-B of Hindu Marriage Act.
In paragraph nos. 8, 9, 12 & 13, the
Division Bench of this Court has held as
under:

 "8. Learned counsel for the
appellant pointed out that Court had
completely misdirected itself in rejecting
adjournment application (6 Ga) on the
ground that there was no provision under
law for moving such an application under
Family Courts Act.

 9. Learned counsel referred to
Section 10 of Family Courts Act which is
relevant for our purpose reads :

 " (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 purpose
of the said provisions of the Code, Family
Court shall be deemed to be a civil court
232 INDIAN LAW REPORTS ALLAHABAD SERIES
and shall have all the powers of such
Court.

 (2)..............

 (3)
Nothing
to
the
other
provisions of this Act and the Rules, the
provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) or the rules
made thereunder, shall apply to the
proceedings or at the truth of the facts
alleged by the one party and denied by the
other."

 12. Considering the averments
contained in the divorce petition under
Section
13B,
Hindu
Marriage
Act/Annexure-1 to the affidavit, Family
Court was under an obligation to afford
opportunity to the concerned parties to
prosecute consent divorce petition."

 13. Family Court has necessary
powers, including those under Order IX
Rule 13, CPC by virtue of Section 10,
Family Court Act.

19. Thus, the Court was of the
view that Family Court has all necessary
powers including those under Order IX,
Rule 13 C.P.C. by virtue of Section 10 of
the Family Court Act.

20. In case of Munna Lal and etc.
v. State of U.P. and another etc. reported
in 1990 SCC OnLine All 119, the Division
Bench of this Court was considering a
question whether Section 24 of the Civil
Procedure Code, 1908 will apply to Family
Court constituted under the Family Courts
Act, 1984. In paragraph nos. 3, 5, 6 & 7,
this Court has held as under:

 "3. Common question, which has
been argued in these three cases, is as to
whether High Court has jurisdiction to
transfer the case from one Family Court to
another Family Court in exercise of the
powers of transfer under C.P.C. and
Cr.P.C. Section 7 of the Act, which deals
with the jurisdiction of the Family Court is
quoted below :

 "7. Jurisdiction : (1) Subject to
the other provisions of this Act, a Family
Court shall-

 (a) have and exercise all the
jurisdiction exercisable by any district
court or any subordinate civil court under
any law for the time being in force in
respect of suits and proceedings of the
nature referred to in the Explanation : and

 (b) be deemed, for the purposes
of exercising such jurisdiction under such
law, to be a district court or, as the case
may be, such subordinate civil court for the
area to which the jurisdiction of the Family
Court extends. In connection with the suits
and proceedings referred to in the
explanation to sub-sec. (1) of Section 7 of
the
Act
a
Family
Court
exercises
jurisdiction exercisable by any district or
any subordinate civil court and for the
purpose of exercising such jurisdiction be
deemed
to
be
a
district
court
or
subordinate civil court, as the case may be
and in respect of the matter relating to
Chapter IX of the Cr.P.C. Family Court
exercises the jurisdiction exercisable by a
Magistrate 1st Class under Chapter IX of
the Code.

 5. By virtue of Section 10 of the
Act, provisions of C.P.C. and of any other
law for the time being in force shall apply
to suits and proceedings before a Family
Court and for the purpose of these
provisions of the Code. Family Court shall
10 All. Nagendra Sharma & Anr. Vs. Court Of Prin. Judge Family Court Gonda & Anr.
233
be deemed to be a civil court and so far as
proceedings under Chapter IX of the
Cr.P.C. are concerned, the provisions of
the Cr.P.C. have been made applicable.

 6. Family Court, as such, is a
substitute of a civil court in respect of the
matters referred to in the explanation to
sub-section (1) of Section 7 of the Act and
has been declared to be a district court or
the subordinate civil court as the case may
be. When exercising powers under Chapter
IX of the Cr.P.C. Family Court is a
substitute of a Magistrate Ist Class and
exercises all the powers, which are
exercisable by those Magistrates. By S. 10
of the Act, C.P.C. has been made
applicable to matters dealt with in the
explanation to sub-section (1) of Section 7
of the Act and Family Court when dealing
with these matters, has been declared to be
a civil court. Likewise, Code of Criminal
Procedure has been made applicable to
proceedings under Chapter IX of the
Cr.P.C.

 7. Family Court, when exercising
powers and jurisdiction relating to the
matters referred to in explanation to subsection (1) of Section 7 of the Act is a civil
court, and as such, High Court has the
jurisdiction to transfer the cases from one
Family Court to another under Sections 22,
23 and 24 of the C.P.C. Similarly, when
Family Court is exercising the powers and
jurisdiction under Chapter IX of the
Cr.P.C., it is criminal court equivalent, to
the Magistrate 1st Class and High Court
will have the powers to transfer the case
from one Family Court to another under
Section 407 of the Cr.P.C".

21. In case of Ranvir Kumar v.
Judge, Family Court, Moradabad and
others reported in MANU/UP/0598/1998,
this Court was considering a question
whether against an order passed by the
Family Court allowing an application under
Order IX Rule 13 C.P.C. an appeal would
lie under Section 19 of the Family Court
Act or a writ petition could be filed to
challenge the order. This Court held that an
order passed by Family Court allowing an
application under Order IX Rule 13 C.P.C.
will amount to a final order and not an
interlocutory order, therefore, an appeal
will lie under Section 19 of the Family
Court Act. Paragraph no. 7 of the Ranvir
Kumar v. Judge, Family Court, Moradabad
(Supra) is quoted as under:

 "7. In the cloister of the above
authorities, I feel pursuaded to the view
that the order setting aside the ex parte
decree of divorce is no doubt fraught with
the effect of restoring the status quo ante
qua the main issues involved in the divorce
petition and reviving the issues which were
settled by the ex parte decree but, the
expression "interlocutory order" seems to
have been used in Section 19(1) of the Act
in
the
sense
of
orders
passed
on
miscellaneous applications during the
pendency of the main case, divorce petition
in the instant case, which do not have the
effect of the case itself being finally
disposed of, if once the main case is
decided, an order setting aside the decision
and restoring the case for decision afresh
would not be treated as one interlocutory
order for restoration proceeding is an
independent proceeding. The decision on
the issues raised in the restoration
application will have the complexion of a
final
decision
qua
the
restoration
application.
The
order
allowing
or
rejecting
restoration
application,
is
therefore, not an interlocutory order within
the ambit of Section 19(1) of the Family
Courts Act. 1984, and is clearly appealable
234 INDIAN LAW REPORTS ALLAHABAD SERIES
under the said provisions. Order XLI11,
Rule 1 of the Code of Civil Procedure
envisage an appeal against an order
rejecting an application under Order IX.
Rule 13, C.P-C. while Section 19 of the Act
provides for an appeal against any
Judgment
and
order
not
being
an
interlocutory order. This carves out the
distinction between the two provisions and,
therefore, submissions made by the learned
counsel for the petitioner that no appeal lay
under Section 19 of the Act against the
order allowing restoration application,
does not commend itself for acceptance."

22. In case of Deep Mala Sharma
v.
Mahesh
Sharma
reported
in
MANU/UP/0283/1991, while interpreting
the provisions of Section 10 of the Family
Court Act, a Division Bench of this Court
held that provision of Limitation Act 1963,
will be applicable to the proceedings under
the Family Court Act. In case of Deep Mala
Sharma (Supra), in paragraph no. 9,
Division Bench of this Court has held as
under:

 "9. As regards the second point
as to whether the provisions of Limitation
Act were applicable, under Section 10 of
the Family Court's Act it has been provided
that subject to other provisions of the Act
and Rules the provisions of the Code of
Civil procedure, 1908 and "of any other
law for the time being in force" shall apply
to suits and proceedings before a Family
Court (other than proceedings under
chapter IX of the Code of Criminal
Procedure, 1973) and for the purposes of
such provisions of the code, the Family
Court shall be deemed to be a civil Court
and shall have all the powers of such
Court. The Limitation Act, particularly
Section 5 thereof provides that when
sufficient cause has been shown the delay
in preferring appeal or application can be
condoned. The provisions of the Code of
Civil Procedure and "of any other law for
the time being in force" have been made
applicable to the suits and proceedings
before a Judge Family Court which has
been declared to be deemed to be a civil
Court having all the powers of such Court.
The expression "of any other law for the
time being in force" under Section 10 of the
Family Courts Act is comprehensive
enough to include the provisions of
Limitation Act, 1963 to be made applicable
to proceedings under the Family Courts
Act.

 There would be no justification in
restricting the meaning of the expression of
any other law for the time being in force",
which is couched in a language having a
very wide sweep. The provisions of a
statute dealing with social and beneficient
provisions should not be interpreted in a
rigid manner, rather a broader view must
be taken consistent with the object of
legislation. The object and reasons of the
establishment of Family Courts were to
emphasise conciliation and achieving the
socially desirable results and adherence to
rigid rules of procedure and evidence were
to be eliminated. In case the provisions of
Section 5 of the Limitation Act were not
made applicable, there might be so many
cases where, particularly in a country like
ours, where a sizable Section of society
suffers from illiteracy, it would not be
proper to adjudicate matters pertaining to
marriage, restitution of conjugal rights and
maintenance and divorce etc. without
providing some opportunity to file an
application or appeal beyond the period of
limitation of 30 days, by taking a rigid view
of limitation, rather there may be bonafide
lack
of
knowledge
or
compelling
circumstances like illness, death of a family
10 All. Nagendra Sharma & Anr. Vs. Court Of Prin. Judge Family Court Gonda & Anr.
235
member and similar other matters on
account of which any person may be
prevented from preferring appeal or any
application within the prescribed period."

23. In view of the judgments noted
above, the position of law as emerges is
that in view of Section 10 of the Family
Courts Act, 1984, provisions of Civil
Procedure Code, 1908 are applicable in
proceedings before the Family Court.

24. In case of Rabindra Singh vs.
Financial Commissioner Co-operation
Punjab and others reported in 2008 7
SCC 663, Hon'ble the Supreme Courty has
held that all the Courts in a situation of the
present nature have incidental power to set
aside ex parte order on the ground of
violation of the principles of natural justice.
Thus, even in the absence of any express
provision, having regard to principles of
natural justice in such a proceeding, the
Courts will have ample jurisdiction to set
aside an ex parte decree, subject of course
of statutory interdict.

25. Fact of the case in case of
Rabindra Singh (Supra) were that a
partition suit was filed before the
Revenue Court which was decreed ex
parte
against
the
defendants.
An
application under Order IX Rule 13 read
with Section 151 CPC was filed by the
respondents which was dismissed by the
Courts below holding therein that the
Revenue Court has no jurisdiction to
entertain application under Order IX Rule
13 and the remedy of the defendant in the
aforesaid proceedings was to file an
application for review. The Supreme
Court set aside the orders and allowed the
appeal. For reference, paragraph Nos.18,
19, 20 21 & 22 of the aforesaid judgment
are quoted as under :-
 "18.
The
Tehsildar,
in
his
judgment, has resorted to a peculiar logic.
According to him, the provisions of review
were attracted and not under Order IX
Rule 13 for setting aside the ex-parte
proceeding. Even if that be so, the ex-parte
decree, in our opinion, could have been set
aside. He could have exercised his power
of review. The commentary on which
reliance was placed, was made on the basis
of
a
decision
of
the
Financial
Commissioner in Hukam Chand & ors. v.
Malak Ram & ors. (1932 ) 11 Lah LT 42].
The said decision, with respect, does not
lay down the correct law. All courts in a
situation of this nature have the incidental
power to set aside an ex parte order on the
ground of violation of the principles of
natural justice. We will deal with this
aspect of the matter a little later.

 19. A defendant in a suit has
more than one remedy as regards setting
aside of an ex parte decree. He can file an
application for setting aside the ex parte
decree; file a suit stating that service of
notice was fraudulently suppressed; prefer
an appeal and file an application for
review.

 20. In Bhanu Kumar Jain v.
Archana Kumar [(2005) 1 SCC 787] this
Court held : (SCC p. 797, para 26)

 "26. When an ex parte decree is
passed, the defendant (apart from filing a
review petition and a suit for setting aside
the ex parte decree on the ground of fraud)
has two clear options, one, to file an appeal
and another to file an application for
setting aside the order in terms of Order 9
Rule 13 of the Code. He can take recourse
to both the proceedings simultaneously but
in the event the appeal is dismissed as a
result whereof the ex parte decree passed
236 INDIAN LAW REPORTS ALLAHABAD SERIES
by the trial court merges with the order
passed by the appellate court, having
regard to Explanation I appended to Order
9 Rule 13 of the Code a petition under
Order
9
Rule
13
would
not
be
maintainable. However, Explanation I
appended to the said provision does not
suggest that the converse is also true."

 21. What matters for exercise of
jurisdiction is the source of power and not
the
failure
to
mention
the
correct
provisions of law. Even in the absence of
any express provision having regard to the
principles of natural justice in such a
proceeding, the courts will have ample
jurisdiction to set aside an ex parte decree,
subject of course to the statutory interdict.

 22. In Grindlays Bank Ltd. v.
Central Govt. Industrial Tribunal [1980
Supp SCC 420] this Court has held that an
Industrial Tribunal has the requisite
jurisdiction to recall an ex parte award.
[See also Sangham Tape Co. v. Hans Raj
(2005) 9 SCC 331 and Kapra Mazdoor
Ekta Union v. Birla Cotton Spg and Wvg.
Mills Ltd. (2005) 13 SCC 777]"

26. Contention of the learned
counsel for the petitioner that in view of
Section 19 & 20 of the Family Courts Act,
1984, the petitioner has only remedy of
filing an appeal against the ex-parte
judgment,
is
misconceived.
Learned
counsel for the petitioner could not point
out any provision of Family Court Act or
Rules made thereunder which prohibits the
application of C.P.C.

27. Thus, in my considered
opinion contention of the learned counsel
for the petitioner that writ of prohibition
can be issued restraining the Family Court
from proceeding with the application filed
by the respondent under Order IX Rule 13
C.P.C. is wholly misconceived as I have
already held that in view of Section 10 of
the Family Court Act, the provisions of
Civil Procedure Code are applicable in
proceedings before the Family Court. The
Family Court has jurisdiction to entertain
an application under Order IX Rule 13
C.P.C. and therefore, no writ of prohibition
can be issued to respondent no. 1.

28. Learned counsel for the
petitioner also tried to assail the order
passed by respondent no. 1 on merits. In a
writ of prohibition such a challenge cannot
be entertained. Once, it is held that the
court
has
competence/jurisdiction
to
entertain an application, the manner of
exercise of the said jurisdiction cannot be
seen
while
considering
a
writ
of
prohibition. The petitioner can challenge
the same before the appropriate forum, if so
advised but not in the present petition.

29. In view of the above
discussion, the instant writ petition is not
maintainable,
and
is
accordingly
dismissed.
----------
(2024) 10 ILRA 236
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 7164 of 2024

C/M Ram Bharose Maiku Lal Inter College
Thru Manager Sri Shree Kant Sahu & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners: