# Shri Prateek Agarwal v. Smt. Richa Garg - **Citation:** (2019) 3 ILRA 663 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-09-20 - **Case number:** First Appeal No. 479 of 2019 - **Bench:** Sudhir Agarwal, Rajeev Misra - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-prateek-agarwal-v-smt-richa-garg-44895 - **Pages:** 5 ## Headnote A. Civil Law-Family Court Act, 1984 - Section19 - Order VIII Rule 10 CPC - Order admitting written statement of defendant and rejecting objection there to - Is an interlocutory order - Not appealable u/s 19 of the Family Courts Act. Held: - Order of Court below accepting written statement filed by defendant is in the nature of 'interlocutory order', and, order rejecting application of appellant under Order VIII, Rule 10 C.P.C. is only consequential, therefore, appeal is not maintainable. (Para 17) B. Civil Law-Hindu Marriage Act, 1955 - Section 24 - Divorce Petition - Written statement - Order VIII Rule 10 CPC - time lapse between the date when the wife's interim maintenance application under Section 24 of Act, 1955 was allowed and the date on which written statement was filed, should be taken. Held: - When divorce petition is filed by husband and on the first date fixed for written statement, wife seeks time to enforce her rights of interim maintenance under Section 24 of Act, 1955, so long as this application is not decided, it cannot be said that wife was under an obligation to file written statement. (Para 18) C. Civil Law-Code of Civil Procedure,1908 - Order VIII Rule 1 - Filing of Written statement beyond 30 days - No formal application for this purpose necessary. Held:- If Trial Court accepted written statement when filed - to be treated as implied permission. No formal application for this purpose is necessary. No specific procedure for this purpose has been prescribed nor need be introduced considering 664 INDIAN LAW REPORTS ALLAHABAD SERIES the nature of proceedings. When a written statement is accepted by Trial Court, it results in allowing parties to contest the matter on merits instead of deciding the matter ex-parte. (Para 20) First Appeal dismissed (E-5) List of cases cited: - ## Text 3 All. Shri Prateek Agarwal Vs. Smt. Richa Garg 663 be had to Section 37 of the Act which provides for filing of a suit in certain circumstances. The case of the plaintiffappellant is not covered by Section 37 of the Act. 26. All the reasons aforestated leads to an irresistible conclusion that the O.S. No.79 of 2019, filed by the plaintiffappellant under Section 9 of the Civil Procedure Code was barred by the Provisions of Section 430 of the Act 2013 and, therefore, the plaint was lawfully rejected in terms of the provisions of Order VII Rule 11 C.P.C. The impugned order has been passed by the court below in accordance with law which does not require any interference. 27. For all the reasons aforestated, I do not find any merit in this appeal. Consequently, the appeal is dismissed. The question framed above is answered in affirmative by holding that under the facts and circumstances of the case the suit filed by the plaintiff-appellant was not maintainable under Section 9 of the Civil Procedure Code as it was barred by the provisions of Section 430 of the Companies Act 2013. ---------- (2019)11ILR A663 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 20.09.2019 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE RAJEEV MISRA, J. First Appeal No. 479 of 2019 Shri Prateek Agarwal ...Appellant Versus Smt. Richa Garg ...Respondent Counsel for the Appellant: Sri Syed Irfan Ali Counsel for the Respondent: ----- A. Civil Law-Family Court Act, 1984 - Section19 - Order VIII Rule 10 CPC - Order admitting written statement of defendant and rejecting objection there to - Is an interlocutory order - Not appealable u/s 19 of the Family Courts Act. Held: - Order of Court below accepting written statement filed by defendant is in the nature of 'interlocutory order', and, order rejecting application of appellant under Order VIII, Rule 10 C.P.C. is only consequential, therefore, appeal is not maintainable. (Para 17) B. Civil Law-Hindu Marriage Act, 1955 - Section 24 - Divorce Petition - Written statement - Order VIII Rule 10 CPC - time lapse between the date when the wife's interim maintenance application under Section 24 of Act, 1955 was allowed and the date on which written statement was filed, should be taken. Held: - When divorce petition is filed by husband and on the first date fixed for written statement, wife seeks time to enforce her rights of interim maintenance under Section 24 of Act, 1955, so long as this application is not decided, it cannot be said that wife was under an obligation to file written statement. (Para 18) C. Civil Law-Code of Civil Procedure,1908 - Order VIII Rule 1 - Filing of Written statement beyond 30 days - No formal application for this purpose necessary. Held:- If Trial Court accepted written statement when filed - to be treated as implied permission. No formal application for this purpose is necessary. No specific procedure for this purpose has been prescribed nor need be introduced considering 664 INDIAN LAW REPORTS ALLAHABAD SERIES the nature of proceedings. When a written statement is accepted by Trial Court, it results in allowing parties to contest the matter on merits instead of deciding the matter ex-parte. (Para 20) First Appeal dismissed (E-5) List of cases cited: - 1. V.C.Shukla Vs St. thr. CBI AIR 1980 SC 962. 2. Central Bank of India Vs Gokul Chand AIR 1967 SC 799.3. Mohan Lal Magan Lal Thacker Vs St. of Guj. 1968 CriLJ 876. 4. Amar Nath & ors. Vs St. of Haryana & ors. (1977) 4 SCC 137. 5. Sethuraman Vs Rajamanickam (2009) 5 SCC 153. 6. Sangram Singh Vs Election Tribunal Kotah and ors. AIR (1955) SC 425 (Delivered by Hon'ble Sudhir Agarwal, J. & Hon'ble Rajeev Misra, J.) 1. Heard Sri Syed Irfan Ali, learned counsel for appellant. 2. The appeal has been filed against order dated 08.5.2019 passed by Sri Rajesh Narain Mani Tripathi, Additional Principal Judge, Family Court No.04, Aligarh admitting written statement of defendant and rejecting objection of appellant filed under Order VIII Rule 10 of Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C."). 3. Appellant Prateek Agarwal filed Divorce Petition No.1243 of 2017 in the Court of Principal Judge/Family Court vide petition/complaint on 16.11.2017. Divorce Petition founded on Section 13(ia) of Hindu Marriage Act, 1955 (hereinafter referred to as "Act, 1955") i.e. 'cruelty'. Summons were issued to respondent Smt. Richa Garg for filing written statement and 12.02.2018 was fixed for the said purpose. 4. Written statement was not filed and further dates fixed are 16.03.2018, 04.05.2018 and 12.07.2018. Appellant thereafter filed an application No.12A/1 dated 10.07.2018 under Order VIII, Rule 10 C.P.C. requesting Family Court to decree suit in favour of appellant under Order VIII, Rule 10 C.P.C. Family Court fixed 24.10.2018 for disposal of aforesaid application. On 24.10.2018 Presiding Officer was on leave and on the same date written statement was filed by defendantrespondent. Objecting to the said filing of written statement, appellant filed an objection (Paper No.15Ka) stating that written statement has not been filed within time prescribed under Order VIII, Rule 1 C.P.C. hence it cannot be accepted particularly when it has been filed without seeking any permission of Court below and therefore, it should be rejected. Application 12Ka and objection 16Ka have been rejected by Sri Rajesh Narain Mani Tripathi, Additional Principal Judge, Family Court No.4, Aligarh vide judgment and order dated 08.05.2019 hence this appeal. 5. Trial Court has rejected aforesaid applications on the ground that defendantrespondent appeared through counsel on 12.02.2018 and on the same date filed an application under Section 24 of Act, 1955 seeking payment of interim maintenance for herself and for contesting the case, whereupon 16.03.2018 was fixed. Ultimately, aforesaid application filed under Section 24 of Act, 1955 i.e. Paper No.8Ka was allowed vide order dated 23.8.2018 and thereafter 29.9.2018 was 3 All. Shri Prateek Agarwal Vs. Smt. Richa Garg 665 fixed for disposal of application 12Ka, which was adjourned to 24.10.2018 since Presiding Officer was on leave. On 24.10.2018 also Presiding Officer was on leave. Defendant-respondent filed written statement on that date. In effect, written statement was filed within 67 days from the date when application under Section 24 of Act, 1955 was accepted i.e. 23.08.2018 and hence it cannot be said that there is no compliance of Order VIII, Rule 10 C.P.C. 6. In our view, order dated 08.05.2019, which is under appeal, is in the nature of interlocutory and therefore under Section 19 of Family Courts Act, 1984 (hereinafter referred to as "Act, 1984"), appeal is not maintainable. 7. What an 'interlocutory order' is, has been considered by Supreme Court in V.C.Shukla vs. State through CBI, AIR 1980 SC 962 and following propositions have been laid down : "(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order; (2) that the concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order; (3) that one of the tests generally accepted by the English Courts and the Federal Court i to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders; (4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter; (5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Article 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused." 8. In Webster's New World Dictionary "interlocutory" has been defined as "an order other than final decision". 9. "Interlocutory" order in its common legal parlance means such order which does not decide rights and liabilities of parties concerning a particular aspect. Orders which are of purely interim or temporary nature, do not decide or touch the important rights or liabilities of parties are interlocutory orders. 10. In the context of Section 397(2) Cr.P.c., it has been held that orders summoning witnesses, adjourning cases, orders on bail, calling for reports and such other steps in aid of pending proceedings, are all interlocutory orders. 666 INDIAN LAW REPORTS ALLAHABAD SERIES 11. In Central Bank of India vs. Gokul Chand AIR 1967 SC 799, Court said that orders regarding summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and admissibility of a document or relevancy of a question are interlocutory orders. 12. In Mohan Lal Magan Lal Thacker vs. State of Gujarat 1968 CriLJ 876, Supreme Court held that finality of an order should not be judged by correlating that order with the controversy in the complaint. The fact that the controversy still remained alive was irrelevant. There may be some interlocutory orders, which may have effect of becoming final order and they are appellable. 13. In Amar Nath and others vs. State of Haryana and others (1977) 4 SCC 137 an order for summoning accused persons was held to be not an "interlocutory order" but an order whereagainst revision under Section 397 Cr.P.C. was maintainable on the ground that it affects valuable right of accused since he has been summoned for facing the trial and it admittedly prejudiced his rights and therefore, revision is maintainable. 14. An order passed under Sections 91 and 311 Cr.P.C. whether 'interlocutory' or not came up for consideration in Sethuraman vs. Rajamanickam (2009) 5 SCC 153. Court held that such orders are 'interlocutory orders' and hence not revisable under Section 397(2) Cr.P.C. 15. In the light of exposition of law discussed above, we find that in the present case, written statement filed by defendant-respondent has been accepted by Trial Court on the ground that though 12.02.2018 was fixed for filing written statement after issuing summons/notice to defendant-respondent but on that date defendant-respondent filed application under Section 24 of Act, 1955 praying for grant of interim maintenance showing that she was in financial scarcity for contesting the case. Therefore, first it become necessary to decide whether defendant-respondent was in the capacity of filing written statement without providing any interim maintenance and for deciding this aspect, various dates were fixed i.e. 16.03.2018, 04.05.2018, 12.07.2018 and 21.08.2018 and order was passed on 23.08.2018 when application of defendant-respondent was accepted and plaintiff-appellant was directed to provide interim maintenance to defendantrespondent. From that date, when application of Section 24 of Act, 1955 was allowed, within 67 days, written statement was filed hence it cannot be said that written statement filed by defendant-respondent was not within the time prescribed under Order VIII Rule 1 C.P.C. 16. Court therefore accepted written statement of defendant-respondent and this acceptance, in effect, only results in giving opportunity to parties to contest the matter so that divorce petition may be decided on merits after hearing both the parties. 17. In our view, this order of Court below accepting written statement filed by defendant-respondent is in the nature of 'interlocutory order', and, order rejecting application of appellant under 3 All. Shri Prateek Agarwal Vs. Smt. Richa Garg 667 Order VIII, Rule 10 C.P.C. is only consequential, therefore, we are clearly of the view that appeal is not maintainable. 18. Even otherwise, on merits, we do not find that the view taken by Court below is erroneous, inasmuch as, in family disputes, when divorce petition is filed by husband and on the first date fixed for written statement, wife comes with the complaint that she needs financial assistance and seeks time to enforce her rights of interim maintenance under Section 24 of Act, 1955, so long as this application is not decided, it cannot be said that wife was under an obligation to file written statement even though had financial crisis to contest the case. The view, therefore, taken by Court below that for the purpose of Order VIII Rule 10 C.P.C., in the facts of this case, time lapsed between the date when application under Section 24 of Act, 1955 was allowed and date on which written statement was filed, should be taken, which is only 67 days it cannot be said that there was non compliance of filing written statement within time by respondent-wife. 19. It is however contended that written statement was filed on 24.10.2018 without seeking permission of Court and therefore Order VIII Rule 1 providing only 30 days' time will apply and not 90 days' time. 20. In this regard we are of the view that no formal application for this purpose is necessary. If Trial Court accepted written statement when it is filed, it can be treated as if it has granted permission. Any specific procedure for this purpose neither has been prescribed nor need be introduced considering nature of proceedings. When a written statement is accepted by Trial Court, it results in allowing parties to contest the matter on merits instead of going to decide the matter ex parte. 21. In Sangram Singh vs. Election Tribunal Kotah and others AIR 1955 SC 425 Court said that procedure of trial is made for the purpose of deciding a dispute in compliance of principles of natural justice and no technical view should be taken for such procedure. 22. Therefore, whenever statutory provisions in respect of procedure are to be considered, such view has to be taken which advances an adjudication on merits after hearing both the parties instead of ex parte decision. No person has a vested interest and right to seek adjudication of a dispute ex parte by taking advantage of any technical fault or issue. Courts must follow a procedure which, as much as possible, consistent with statutory provisions, principles of natural justice and leans in favour of a decision on merits after contest instead of ex parte decision. 23. In view of above discussion, appeal is dismissed as not maintainable as well as on the ground of involving no arguable issue at the stage of hearing under Order 41, Rule 11 C.P.C. 24. Interim order, granted on 26.6.2019, stands discharged. ---------- (2019)11ILR A667 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 16.09.2019 BEFORE THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J.