# Smt. Anchal Goyal v. Parag Goyal

- **Citation:** (2024) 12 ILRA 932
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-03
- **Case number:** First Appeal No. 1017 of 2024
- **Bench:** Saumitra Dayal Singh, Donadi Ramesh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anchal-goyal-v-parag-goyal-51365
- **Pages:** 18

## Headnote

A. Family Law - Family Court Act, 1984 -
Section 19 - Code of Civil Procedure, 1908
- Section 115 - Appeal is a creature of
statute and no right of appeal inheres in
any party unless specifically provided for
by a statute. Right to appeal is neither an
absolute right nor an ingredient of natural
justice the principles of which must be
followed in all judicial and quasi- judicial
adjudications. The right to appeal is a
statutory right and it can be circumscribed by
the conditions in the grant. (Para 34)

B. The two-tier appeal system as also
the concept of multiple appeal/revision
remedy before a higher Court, in the
course of the same proceeding, has been
done away under the general scheme of
the Act and specifically u/s 19 of the Act
- w.r.t. family disputes. Once the statute
has done away with the concept of appeal
against
"case
decided"
by
specifically
excluding that concept from the scope of
orders that may be appealable or revisable, it
would be erroneous on part of the Court to
introduce that concept through a process of
judicial reasoning. Express language used
by the legislature that is unambiguous in
letter and spirit, must prevail. There is
no room to adapt it or to apply judicial
interpretation
offered
to
different
language used under another statute.
(Para 30, 35)

In
the
context
of
main
proceeding
pending, the term "interlocutory order", is
the genus. Any order causing the effect of
"case decided" may be a species of that
genus - "interlocutory order". Such species
of orders may be passed during the course of
such a judicial or quasi-judicial proceeding. The
legislature has used the phrase "interlocutory
order" and not "case decided" while excluding
appeals against a type of orders passed by
Family
Courts...
The
whole
having
been
excluded, there is no inherent reasoning to save
its part. (Para 36)
Generally in dealing with the amendment
applications, the Court does not decide the
correctness of the contentions at that stage. To
that
extent,
the
orders
passed
on
the
amendment applications may remain procedural
orders. They do not decide any issue touching
the merits of the controversy. At the same time,
if such order has the effect of taking away
the defence of immunity in the matter of
limitation, it may be described as a
judgement. (Para 28)

In the present case, the appellant only sought
to introduce (by way of amendment), a fact
pleading that the respondent had earlier
agreed or offered to revive his matrimonial
relationship. To that extent and for that
purpose, she sought to rely on some evidence
allegedly led by the respondent, in collateral
proceedings. The order of rejection of this
amendment application does not deal with or
decide any substantive rights of the parties
and does not prejudice the substantive rights
of the appellant involved in that proceeding
before the learned court below. It is not an
order of the moment. (Para 37)

Applying the test, the order impugned in this
appeal
is
purely
an
"interlocutory
order"/procedural order. It may never be
appealed against. (Para 38)

First appeal dismissed. (E-4)

Precedent followed:

## Text

_Characters 0–39,988 of 61,695. This is a partial read: ask again with offset=39988 for what follows._

932 INDIAN LAW REPORTS ALLAHABAD SERIES
was never a part of any criminal
conspiracy, she also stated that police also
move a false appliccation before the Trial
Court for getting her pregnancy test in
order to defame her.

i) Even as per PW-5, Astrologer
who acted as catalyst in worsening
relationship of accused A-1 and his wifevictim Jyoti, by making her believe that her
marriage will not work, also did not
disclose name of A-2- Manisha Makheeja.
This witness stated that he used to meet
Jyoti but was not aware of any such love
relationship between A-1 and A-2 and even
deposed that after incident, he came to
know about this.

j) It has been held in Sharad
Birdhichand's Case (supra) that mere
suspicion cannot be approved of proving
complete chain of circumstances. Therefore,
in the light of Sharad Birdhichand's Case
(supra) the prosecution has failed to prove
the chain of circumstances which proves that
the Manisha had any knowledge of intention
of
A-1-
Piyush
Shyamdasani,
A-3-
Awadhesh
Chaturvedi,
A-4-
Renu
@
Akhilesh Kanaujiya, A-5- Sonu Kashyap and
A-6- Ashish Kashyap. The circumstances are
not conclusive against the appellant- A-2 so
far as to exclude every possible hypothesis to
be proved. Thus, in view of finding recorded
in paragraph no. 157 (a to j), the involvement
of A-2-Manisha Makheeja in criminal
conspiracy with A-1, A-3 to A-6 is not
proved and question no. B is decided
accordingly.

158. As observed above in paragraph no.
156 (i to xxxii), the prosecution has been able to
prove the complete chain of evidence against
A-1- Piyush Shyamdasani and A-3- Awadhesh
Chaturvedi, A-4- Renu @ Akhilesh Kanaujiya,
A-5- Sonu Kashyap and A-6- Ashish Kashyap
and therefore, the finding recorded by the Trial
Court holding them guilty of offences is upheld
and the judgment of conviction and order of
sentence are also upheld.

159. Accordingly, the Criminal Appeal
Nos. 8254 of 2022, 10177 of 2022, 10034 of
2022, 9481 of 2022 and 10182 of 2022 are
liable to be dismissed and Criminal Appeal No.
9005 of 2022 is allowed and Manisha
Makheeja is acquitted of the charge.

160. The appellant- Manisha Makheeja is
on bail and her bail surety bonds are discharged.
The
bail
bonds
of
accused-appellants
Awadhesh Chaturvedi and Ashish Kashyap,
who are on bail are cancelled and they be taken
into custody forthwith to undergo further
sentence as per the order of trial court.

161. In view of the finding recorded
above, the Criminal Appeal No. 121 of 2023,
filed under Section 372 of Cr.P.C. challenging
acquittal of Mukesh Shyamdasani, Smt.
Poonam
Shyamdasani
and
Kamlesh
Shyamdasani is dismissed.

162. Record of the trial court be
transmitted back forthwith. The file of material
exhibits received from the concerned police
station be also remitted back in sealed cover.
----------
(2024) 12 ILRA 932
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2024

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE DONADI RAMESH, J.

First Appeal No. 1017 of 2024

Smt. Anchal Goyal ...Appellant
Versus
Parag Goyal ...Respondent

Counsel for the Appellant:
12 All. Smt. Anchal Goyal Vs. Parag Goyal
933
Kiran Kumar Arora

Counsel for the Respondent:
Aditya Bhushan Singhal, Shadab Husain

A. Family Law - Family Court Act, 1984 -
Section 19 - Code of Civil Procedure, 1908
- Section 115 - Appeal is a creature of
statute and no right of appeal inheres in
any party unless specifically provided for
by a statute. Right to appeal is neither an
absolute right nor an ingredient of natural
justice the principles of which must be
followed in all judicial and quasi- judicial
adjudications. The right to appeal is a
statutory right and it can be circumscribed by
the conditions in the grant. (Para 34)

B. The two-tier appeal system as also
the concept of multiple appeal/revision
remedy before a higher Court, in the
course of the same proceeding, has been
done away under the general scheme of
the Act and specifically u/s 19 of the Act
- w.r.t. family disputes. Once the statute
has done away with the concept of appeal
against
"case
decided"
by
specifically
excluding that concept from the scope of
orders that may be appealable or revisable, it
would be erroneous on part of the Court to
introduce that concept through a process of
judicial reasoning. Express language used
by the legislature that is unambiguous in
letter and spirit, must prevail. There is
no room to adapt it or to apply judicial
interpretation
offered
to
different
language used under another statute.
(Para 30, 35)

In
the
context
of
main
proceeding
pending, the term "interlocutory order", is
the genus. Any order causing the effect of
"case decided" may be a species of that
genus - "interlocutory order". Such species
of orders may be passed during the course of
such a judicial or quasi-judicial proceeding. The
legislature has used the phrase "interlocutory
order" and not "case decided" while excluding
appeals against a type of orders passed by
Family
Courts...
The
whole
having
been
excluded, there is no inherent reasoning to save
its part. (Para 36)
Generally in dealing with the amendment
applications, the Court does not decide the
correctness of the contentions at that stage. To
that
extent,
the
orders
passed
on
the
amendment applications may remain procedural
orders. They do not decide any issue touching
the merits of the controversy. At the same time,
if such order has the effect of taking away
the defence of immunity in the matter of
limitation, it may be described as a
judgement. (Para 28)

In the present case, the appellant only sought
to introduce (by way of amendment), a fact
pleading that the respondent had earlier
agreed or offered to revive his matrimonial
relationship. To that extent and for that
purpose, she sought to rely on some evidence
allegedly led by the respondent, in collateral
proceedings. The order of rejection of this
amendment application does not deal with or
decide any substantive rights of the parties
and does not prejudice the substantive rights
of the appellant involved in that proceeding
before the learned court below. It is not an
order of the moment. (Para 37)

Applying the test, the order impugned in this
appeal
is
purely
an
"interlocutory
order"/procedural order. It may never be
appealed against. (Para 38)

First appeal dismissed. (E-4)

Precedent followed:

1. Shah Babu Lal Khimji Vs Jayaben, AIR 1981
SC 1786 (Para 12)

2. Amar Nath Vs St. of Har., AIR (1977) SC 2185
(Para 13)

3. Madhu Limaye Vs St. of Mah., AIR (1978) SC
47 (Para 13)

4. Mohan Lal Magan Lal Thakkar Vs St. of Guj.,
AIR (1968) SC 733 (Para 13)

5. C.B.I. Vs Gokul Chand, AIR (1967) SC 799
(Para 15)

6. Major Raja P. Singh Vs Surendra Kumar, 1990
SCC OnLine Raj 411 (Para 21)
934 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Smt. Kanupriya Vs Ashutosh Agrawal, 2017
AIR Uttaranchal 166 (Para 22)

8. Raj Kumar Shivhare Vs Assistant Director,
Directorate of Enforcement & anr., (2010) 4 SCC
772 (Para 22)

9. Major Raja P. Singh Vs Surendra Kumari, AIR
1991 Rajasthan 133 (Para 22)

10. Thankappan Nair Vs Prasannakumari & ors.,
M.F.A. No. 1760/1994-B (Para 22)

11. V.C. Shukla Vs St., AIR 1980 SC 962 (Para
22)

12. Avadhesh Narain Srivastava Vs Archna
Srivastava, 1990 LLJ 183 (Para 26)

13. Jyoti Vs Ankit Dubey, (2023) SCC OnLine All
4506 (Para 29)

14. Vijay Prakash D. Mehta Vs Collector of
Customs, (1988) 4 SCC 402 (Para 34)

15. Hoosein Kasam Dada (India) Ltd. Vs St. of
M.P., AIR 1953 SC 221 (Para 34)

Precedent distinguished:

1. Rama Shanker Tiwari Vs Mahadeo & ors.,
(1968) ALJ 109 (Para 5)

2. Kiran Bala Srivastava Vs Jai Prakash
Srivastava, 2005 (23) LCD 1 (Para 11)

Precedent overruled:

Sudhanshu Gupta Vs Komal Gupta, Civil Revision
No. 109 of 2019, decided on 25.07.2019 (Para
18)

Present appeal filed u/s 19 of the Family
Court Act, 1984, arises from order dated
04.10.2024, passed by Principal Judge,
Family Court, Saharanpur, whereby an
amendment
application
filed
by
the
present appellant has been dismissed.

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Donadi Ramesh, J.)

1. Heard Sri Kiran Kumar Arora,
learned counsel for the appellant and Sri
Aditya Bhushan Singhal, learned counsel
for the respondent.

2. Present appeal has been filed under
Section 19 of the Family Court Act, 1984
(hereinafter referred to as the 'Act'), arising
from order dated 4.10.2024 passed by
Principal Judge, Family Court, Saharanpur
on Application Paper No. 39A/1-3, filed
[under Order VI Rule 17 Code of Civil
Procedure, 1908 (hereinafter referred to as
the 'CPC')], by the present appellant in
Original Suit No. 323 of 2022 (Parag Goyal
Vs. Smt. Anchal Goyal), whereby the
learned court below has dismissed the
amendment application filed by the present
appellant,
seeking
to
introduce
the
following two paragraphs as paragraph nos.
54अ and 54ब, to her written statement.

"54अ- यह दक दपदटशनर ने माननीय उच्च
न्यायालय नैनीताल में रेस्पोन्डेन्ट के दवरूद्ध एक यादचका
अन्तगात िारा 482 सी०आर०पी०सी० (सी-482 नम्बर
781 वषा 2024 पराग गोयल बनाम आंचल गोयल) योदजत
की हुई है। उि यादचका अन्तगात िारा 482 सी०आर०पी०सी०
की कायावाही में दपदटशनर पराग गोयल ने अपने अदिविा के
माफात न्यायालय में यह कथन दकया है दक "Learned
counsel for the applicant Mr. Karan
Anand, on instruction, submits that the
applicant is ready to live with the
respondent wife"

"54ब- यह दक रेस्पोन्डेन्ट भी सिैव दपदटशनर के
साथ रहने को इच्छुक एवं तैयार रही है व वतामान में भी दपदटशनर के
साथ रहने को तैयार है। इसके अदतररि दपदटशनर के माननीय उच्च
न्यायालय नैनीताल में दिनांक 25-06-2024 को दकये गये कथन
से रेस्पोन्डेन्ट की कदथत िूरता (यदि कोई हो तो, हालांदक रेस्पोन्डेन्ट
को स्वीकार नही है) उपमदषात (Condone) हो चुकी है, दजस
कारण भी दपदटशनर का वाि खदण्डत होने योग्य है।"
12 All. Smt. Anchal Goyal Vs. Parag Goyal
935

3. At the outset, a preliminary
objection has been raised by learned
counsel for the respondent that the present
appeal is not maintainable under Section 19
of the Act. For ready reference, Section 19
of the Act to the extent it is relevant to the
present proceeding, reads as below:

"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 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 (59 of 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 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."

4.
During
the
course
of
his
submissions, learned counsel for the
appellant has also referred to and relied on
the provisions of Section 115 CPC as
amended and in force in the State of U.P.
Section 115 CPC (as in force in the State of
U.P.) to the extent relevant to the present
discussion reads as below:

"115. Revision - (1) A superior
court may revise an order passed in a case
decided in an original suit or other
proceeding by a subordinate court where
no appeal lies against the order and where
the subordinate court has -

(a) exercised a jurisdiction not
vested in it by law; or

(b)
failed
to
exercise
a
jurisdiction so vested; or

(c) acted in exercise of its
jurisdiction illegally or with material
irregularity."

5. Submission of learned counsel for
the appellant is, the issue whether an order
rejecting an amendment application is a
"case decided" is no longer res integra. A
five-judge Full Bench of this Court in
Rama Shanker Tiwari Vs. Mahadeo &
Ors., (1968) ALJ 109, had the occasion to
consider the following question:

"Whether an order passed Under
Order VI, Rule 17 of the Code of Civil
Procedure, either allowing an amendment
or refusing to allow an amendment is a
936 INDIAN LAW REPORTS ALLAHABAD SERIES
"case decided" within the meaning of
Section 115 of the Code?"

6. The provision of Section 115 CPC
as was then in force in the State of U.P.
read as below:

"115. Revision. - [(1)] The High
Court may call for the record of any case
which has been decided by any Court
subordinate to such High Court and in
which no appeal lies thereto, and if such
subordinate Court appears -

(a)
to
have
exercised
a
jurisdiction not vested in it by law, or

(b) to have failed to exercise a
jurisdiction so vested, or

(c) to have acted in the exercise
of its jurisdiction illegally or with material
irregularity, the High Court may make such
order in the case as it thinks fit."

7. The question referred was answered
by the Full Bench by a majority 4:1. The
majority opinion authored by G.C. Mathur,
J., reasoned as below:

"4. To hold that an order Under
Order VI, Rule 17, CPC is not a "case
decided" would result, in many cases, in
denying relief to parties where it is most
needed and in the perpetuation of gross
injustice. The party aggrieved will have to
wait till the suit is decided on merits after
taking evidence and then raise the question
in appeal. If its contention is correct, then
the appellate court will set aside the order
of the trial court on the amendment
application and remand the case for a fresh
trial. This will result in unnecessary delay
and expense to both the parties. Even
though an order allowing or refusing an
amendment is a "case decided" this Court
will not interfere unless the conditions laid
down in Clauses (a), (b) and (c) of Section
115, CPC are satisfied and the order has
resulted or is likely to result in such gross
injustice or irreparable injury as cannot be
remedied except by interference at that
stage. Most of the other High Courts have
also taken the view that an order Under
Order VI, Rule 17, CPC is a "case
decided"--see Sukumar Chatterjee Vs.
Kiran Chandra Mitter, AIR 1964 Cal 439,
AIR 1948 258 (Nagpur), Shah Shantilal
Chunilal Vs. Shah Shantilal Fulchand and
Another, AIR 1963 Guj 195, Damodara
Sastry v. Nilgri Sanjiviah AIR 1955 Mys.
141 and Pathikonda Gopala Rao v. Nagiri
Pedda Kitamma AIR 1956 AP 138."
(emphasis supplied)

8. However, A.K. Kirty, J., in his
minority opinion, reasoned as below:

21. The principal matter which
now needs consideration is whether and, if
so, to which extent orders allowing or
refusing amendment of pleadings fulfill the
aforesaid requirements so as to come under
the phrase "case which has been decided"
in Section 115 of the Code. Plaints and
written
statements
which
constitute
pleadings are documents over which the
parties themselves have complete control.
They may make therein any or all
averments which may appear to them to be
necessary, appropriate or expedient either
to support a claim or to contest a claim.
Once however, these documents are filed in
the Court, the parties cease to have control
over them. Nothing therein can be added
to, deleted or altered unless permitted by
the Court. The power to grant such
permission has been expressly conferred on
the Court Under Order VI, Rule 17 of the
Code. It is a very wide power and its
exercise is dependent on the judicial
discretion
of
the
Court.
It
is
this
discretionary nature of the power that
12 All. Smt. Anchal Goyal Vs. Parag Goyal
937
creates the real obstacle in the way of
holding
that
an
order
allowing
or
disallowing amendment of a pleading gives
rise to a case decided so as to be revisable
u/s 115 of the Code. The filing of an
application for amendment of a pleading
gives rise to a 'case which is decided' as
soon as an order allowing or dismissing it
is passed. Be it so, but one may pertinently
enquire: What is the controversy involving
a matter of jurisdiction decided thereby?
How has it a direct bearing on the rights of
the parties or affected their rights and
obligations directly? The required answers
are hard to find. Yet to hold that under no
circumstances will an order allowing or
disallowing an amendment of a pleading
give rise to a case decided so as to be
revisable u/s 115 of the Code might result
in defeating the object and purpose of the
section itself. I find it difficult to accept this
extreme view although I find it also
logically difficult to subscribe to the view
that all orders allowing or disallowing
amendment of a pleading will be cases
decided and revisable u/s 115 of the Code.
I may here refer to two decisions of the
Supreme Court in which it has been held
that even where very wide words have been
used in statutes conferring rights of appeal
from every order or decision made or given
in proceedings arising thereunder they
would exclude interlocutory orders which
are merely procedural or do not affect the
rights or liabilities of the parties--See
Shankerlal Aggarwal and Others Vs.
Shankerlal Poddar and Others, AIR 1965
SC 507 and The Central Bank of India Ltd.
v. Gokul Chand AIR 1967 SC 79 at 800.
Thus, I do not find it possible to hold that
every interlocutory order passed or every
finding or decision given in a proceeding in
a court subordinate to the High Court will
constitute a case which has been decided so
as to be revisable u/s 115 of the Code.

22. The only matter which now
remains to be considered is when and
under what circumstances an order either
allowing or dismissing an application to
amend a pleading will be a case decided
and revisable. The basic ingredients and
the guiding rules furnished by Khanna's
(supra) case are not exhaustive or rigid.
There is room for elaboration. By way of
sequel thereto it seems permissible to
propound that the order, finding or
decision may also potentially have a direct
bearing on the rights of the parties and
further that they by their own force either
create
or
eliminate
a
question
of
jurisdiction. Therefore, the key to the
solution in determining whether an order
allowing or disallowing an application for
amendment of a pleading will be a case
decided is to be sought in the nature of the
amendment sought, its direct or likely
impact on the rights and obligations of the
parties concerned and its immediate or
potential effect on the Court's jurisdiction.
If the application for amendment of
pleading
answers
to
the
description
affirmatively,
order
granting
it
or
dismissing it may give rise to a case which
has been decided and be revisable u/s 115
of the Code. If the application does not do
so, the order granting or dismissing it will
not give rise to a case decided revisable u/s
115 of the Code."
(emphasis supplied)

9. Thereafter, the reference was
answered in terms of the majority, on the
following terms:

"24. The opinion of the majority
of Judges constituting the Full Bench is
that an order passed Under Order VI, Rule
17 of the Code of Civil Procedure, either
allowing an amendment or refusing to
allow an amendment, is a "case decided"
938 INDIAN LAW REPORTS ALLAHABAD SERIES
within the meaning of that expression in
Section 115, Code of Civil Procedure."

10. Thus, it has been submitted by
learned counsel for the appellant that there
can be no doubt that an order deciding an
amendment application remains a "case
decided". To that extent, such orders would
fall outside the scope of the words of
limitation used in Section 19(1) of the Act -
"interlocutory order".

11. Elaborating, learned counsel for
the appellant has next relied on another
decision of a three - judge Full Bench of
this Court in Kiran Bala Srivastava Vs.
Jai Prakash Srivastava, 2005 (23) LCD
1, wherein the following question was
referred to the Full Bench:

"Whether
an
appeal
under
Section 19 of the Family Courts Act, 1984
would lie against an order passed under
Section 24 of the Hindu Marriage Act, for
grant of interim maintenance?"

12. At first, that Full Bench relied on
the decision of the Supreme Court in Shah
Babu Lal Khimji Vs. Jayaben, AIR 1981
SC 1786. It was thus reasoned as below:

"20. In other words, the Apex
Court ruled that order or interlocutory
order possessing the characteristics and
trappings of finality or affecting valuable,
rights of the party or deciding important
aspects of the trial in main or in ancillary
proceedings, will be "judgment".

21. What noticeable in subsection (1) of Section 19 of the Act of 1984,
is that deviating from Section 96 of the
Code of 1908 or from sub-section (1)
Section 28 of the Act of 1955, it provides
for appeals against "judgment". The Code
of Civil Procedure, 1908, does not provide
for appeal against judgments. It provides
for appeals against decrees and orders.
Likewise Section 28 of the Act of 1955 also
does not provide for appeals against
judgments. It provides for appeals only
against decrees [see: sub-section (1)] and
against certain [see: sub-section (2)]. The
question arises as to why the legislature
made a departure by providing appeal
against judgments-also, under sub-section
(1) of Section 19 of the Act of 1984. Not
that the legislature was not aware of the
established practice or did not know the
meaning of the word judgment, given by the
Apex Court in Khimji's case (supra)."

13. Thereafter, that Full Bench further
considered the term "interlocutory order" in
the context of an order passed under
Section 24 of the Hindu Marriage Act,
1955 (hereinafter referred to as the
'HMA'). It took note of three decisions of
the Supreme Court in Amar Nath Vs.
State of Haryana, AIR (1977) SC 2185,
Madhu
Limaye
Vs.
State
of
Maharasthra, AIR (1978) SC 47 and
Mohan Lal Magan Lal Thakkar Vs.
State of Gujarat, AIR (1968) SC 733. In
Amar Nath (supra), the Supreme Court
observed as below:

"The term "interlocutory order"
is a term of well-known legal significance
and does not present any serious difficulty.
It has been used in various statutes
including the Code of Civil Procedure,
Letters Patent of the High Courts and other
like statutes. In Webster's New World
Dictionary
"interlocutory"
has
been
defined as an order other than final
decision. Decided cases have laid down
that interlocutory orders to be appealable
must be those which decide the rights and
liabilities of the parties concerning a
particular aspect. It seems to us that the
12 All. Smt. Anchal Goyal Vs. Parag Goyal
939
term "interlocutory order" in Section
397(2) of the 1973 Code has been used in a
restricted sense and not in any broad or
artistic sense. It merely denotes orders of a
purely interim or temporary nature which
do not decide or touch the important rights
or the liabilities of the parties. Any order
which substantially affects the right of the
accused, or decides certain rights of the
parties
cannot
be
said
to
be
an
interlocutory order so as to bar a revison
to the High Court against that order,
because that would be against the very
object which formed the basis for insertion
of this particular provision in Section 397
of the 1973 Code. Thus, for instance,
orders summoning witnesses, adjourning
cases, passing orders for bail, calling for
reports and such other steps in aid of the
pending proceeding, may no doubt amount
to interlocutory orders against which no
revision would lie under Section 397(2) of
the 1973 Code. But orders which are
matters of moment and which affect or
adjudicate the rights of the accused or a
particular aspect of the trial cannot be said
to be interlocutory order so as to be outside
the purview of the revisional jurisdiction of
the High Court."
(emphasis supplied)

14. Further, referring on the decision
in Madhu Limaye (supra), the Full Bench
further observed as below:

"The said view was reiterated in
Madhu Limaye's case with the observation
that some kinds of order may fall in
between final order" and "interlocutory
order" and the bar in sub-section (2) of
Section 397 was not meant to be attracted
to such kind of "intermediary orders"."

15. Then, considering the meaning to
be given to the words "interlocutory orders"
used in Section 19 of the Act, the Full
Bench also considered the definition of that
phrase in Halsbury's Law of England and
Central Bank of India Vs. Gokul Chand,
AIR (1967) SC 799. Thereupon, that Full
Bench
made
the
following pertinent
observations:

"27. The argument that appeal
against any such order, will delay the
disposal of main petition does not appeal to
us, so as to give a limited meaning to the
word "judgment". In an appeal against any
order under Section 24 of the Act of 1955,
granting pendente lite maintenance, main
proceedings need not necessarily be stayed
or held up. The reason is that grant of such
maintenance is not to affect the merits of
the main petition.

28. The learned Counsel for the
respondents has referred to the definition
of "interlocutory orders" in Vol. 22 of the
third edition of Halsburys Law of England
and also to Central Bank of India v. Gokul
Chand, AIR 1967 SC 799 and also Amar
Nath's case and Madhu Limaye's case
(supra), so as to say that order under
Section 24 of the Act of 1955 are just steps
in aid of the main proceedings and have no
existence in dependent of the main
proceedings, so will not fall within the
definition of the judgment and will be only
an interlocutory order. We are of the view
that in view of the discussion made above
order of pendente lite maintenance has all
the characteristics and trappings of the
judgment as it decides the valuable rights
and liabilities of the parties to the
proceedings. In so far as those rights and
liabilities are concerned the order is final.
The fact that the considerations that matter
in granting or refusing pendente lite
maintenance under Section 24, have no
connection with issues in the main
proceedings or the question that even after
940 INDIAN LAW REPORTS ALLAHABAD SERIES
disposal of application under Section 24,
the main petition remains alive for
disposal, do not prevent the order under
Section 24 from falling within the definition
of the "judgment". We are also of the view
that the expression "interlocutory order"
appearing in sub-section (1) of Section 19
of the Act, 1984 qualify the word "order"
only and does not qualify the word
"judgment" appearing before the word
"order". In other words, if order of
pendente lite maintenance is a "judgment"
for all legal and practical purposes, it
matters,
little
whether
the
same
is
interlocutory or final."
(emphasis supplied)

16. Thereafter, it was held that that
order passed under Section 24 of the HMA
is a 'judgement' as it involves effect of
finality to the pendente lite maintenance
awarded, thereunder.

17. Thus, it has been submitted that at
present the impugned order deciding the
amendment is a 'judgement'. It decides an
issue or dispute at present. Though the
divorce suit may remain pending, such an
order may remain appealable and it cannot be
described as a simple interlocutory order.

18. Last, reliance has been placed on the
learned single judge decision of this Court in
Civil Revision No. 109 of 2019 (Sudhanshu
Gupta Vs. Komal Gupta) decided on
25.07.2019. Learned single-judge of this
Court reasoned that the order rejecting an
amendment application is a "case decided".
Therefore, it is not an interlocutory order.
Hence, it is appealable under Section 19 of
the Act. For ready reference, relevant extract
of the said decision, reads as below:

"Section 19 on the other hand
starts with a non-obstante clause, namely,
"notwithstanding anything contained in the
Code of Civil Procedure." It therefore
necessarily follows that an appeal lies
against every order passed by the Family
Court, which is not an interlocutory order,
despite any provision of the CPC to the
contrary.

The Full Bench decision cited by
counsel for the revisionist, namely Rama
Shanker Tiwari Vs. Mahadeo and Ors.,
1968 (38) AWR 103, holds that an order
under Order 6 Rule 17 CPC, either
allowing
or
refusing
to
allow
an
amendment, is a "case decided".

Although, this judgment has been
relied upon by counsel for the revisionist to
submit that the revision is maintainable, in
my considered opinion, this judgment
necessarily holds against the revisionist.
Once it is accepted that an order rejecting
an amendment application is a case
decided, it necessarily follows that it is not
an interlocutory order and is therefore,
appealable under Section 19 of the Family
Courts Act.

The revision is not maintainable
also because sub-section 3 of Section 115
CPC as applicable in U.P. provides that
the Superior Court shall not, under this
section, vary or reverse any order made,
except where the order, if it had been made
in favour of the party applying for revision,
would have finally disposed of the suit or
other proceedings. Even if the order
impugned is set-aside and the amendment
application of the revisionist is allowed, the
proceedings before the Family Court shall
not stand finally disposed of.

Under the circumstances, the
order impugned in this revision being a
final order and not an interlocutory order,
it is clearly appealable under Section 19 of
the Family Courts Act and for this reason
alone, the revision is necessarily not
maintainable. This is so because no
12 All. Smt. Anchal Goyal Vs. Parag Goyal
941
revision lies against an order which is
appealable.

The contention of counsel for the
revisionist that a revision can be filed
because the provisions of CPC are
applicable to the proceedings under the
Family Courts Act, cannot be accepted
because even though the provisions of the
CPC are applicable to the proceedings
before the Family Court, they are subject to
and limited by the provisions of the Family
Courts Act itself, which means that the
provisions contained in the Family Courts
Act shall necessarily prevail over the
provisions contained in the Civil Procedure
Code.

Under the circumstances, this
Court has no hesitation in holding that the
instant revision is not maintainable.

It is accordingly dismissed."

19. Coming to the facts of the present
case, it has been submitted, unless the
appellant is permitted to amend her written
statement, prejudice would be caused to her
defence. Besides the fact that the order
rejecting an amendment application is a
"case decided", effect of finality would
attract to the extent the appellant would
have been prevented to plead necessary
facts.

20. On the other hand, learned counsel
for the respondent would contend, the
entire scheme of the Act leaves no matter
of doubt that the Family Court proceedings
are different from regular civil suit
proceedings. The very object of the Act
amongst others is to secure speedy
settlement of disputes relating to marriages
and family affairs. The procedure and
pratices and the rights created under CPC
apply only to proceedings under the Act, to
the extent it permits. Specifically, with
respect to the appeals filed thereunder,
Section 19(1) of the Act creates a remedy
of appeal. At the same time, that provision
is notwithstanding anything contained in
the CPC. Therefore, the remedies provided
under the general enactment, i.e. CPC have
been specifically done away and replaced
with the remedies of appeal created under
Section
19(1)
of
the
Act.
Thus,
notwithstanding anything contained in the
CPC, remedy of appeal has been created
against every judgment and order passed by
a Family Court, except interlocutory orders.
Further, the Act debars any appeal against a
consented order. Consented orders apart, in
his submission, once the legislature has
clearly barred appeals against any judgment
and/or order that may be described as an
"interlocutory order", there survives no
occasion to read/interpret the general law
i.e. CPC into the specific provisions of the
special law i.e. the Act, even if the
impugned order may be described to have
rendered a "case decided".

21. To bolster his submission, learned
counsel for the respondent has placed
reliance on a decision of the Rajasthan
High Court in Major Raja P. Singh Vs.
Surendra Kumar, 1990 SCC OnLine Raj
411, wherein it has been observed as
below:

9. The object of this Special Law
of the Family Court Act is to decide the
matrimonial cases in a speedy manner. If,
the
order
rejecting or
allowing
an
amendment application will be termed as
the case decided for the purpose of this Act
and is appealable then, in ordinary course
of law the decision of such cases would
take years to come to reach the finality of
the matter. In order to achieve the object of
the Act i.e. speedy settlement of dispute
relating to marriage, the purpose of
expeditious trial is frustrated. That apart if
942 INDIAN LAW REPORTS ALLAHABAD SERIES
the
legislature
intended
that
all
interlocutory order be appealable, it should
not have used the word in Section 19 of the
Act "not being an interlocutory order" and
that is why no appeal or revision has been
provided. This Court in D.B. Civil Misc.
Appeal
No.
107/90 Smt.
Vijay
Kaur v. Radhey Shyam decided on 1.8.90
has held that the order relating to
adjourment cost is an interlocutory order
and appeal is not maintainable u/sec. 19 of
the Act, in this view of the matter, the order
dated 6.4.1989 cannot be termed finally
deciding the case i.e. the controversy being
settled. The parties can agitate the point in
appeal after final disposal of the case by
the trial court. In out considered opinion,
the allowing or refusing an amendment is
an interlocutory order against which no
appeal u/sec. 19 of the Act is provided. In
conclusion the preliminary objection is
sustained and it is held that the order dated
6.4.1989 is an interlocutory order and no
appeal lies to this Court.

22. Further, learned counsel for the
respondent placed reliance on a division
bench decision of the Uttarakhand High
Court in Smt. Kanupriya Vs. Ashutosh
Agrawal, 2017 AIR Uttaranchal 166. In
that case, appeal had been preferred under
Section 19 of the Act against an order
passed by the Family Court allowing an
amendment application, to amend the
plaint. The Uttarakhand High Court had the
occasion to consider the five-judge Full
Bench decision of this Court in Rama
Shanker Tiwari (supra) as also other
decisions of the Supreme Court in Shah
Babulal Khimji (supra), Kiran Bala
Srivastava (supra), Raj Kumar Shivhare
Vs. Assistant Director, Directorate of
Enforcement and another, (2010) 4 SCC
772, a decision of the Rajasthan High Court
in Major Raja P. Singh Vs. Surendra
Kumari, AIR 1991 Rajasthan 133 and
another decision by the Kerala High Court
in
Thankappan
Nair
Vs.
Prasannakumari & others in M.F.A. No.
1760/1994-B, decided on 30.06.1995 as
also the decisions of the Supreme Court in
Amar Nath (supra), Madhu Limaye
(supra) and V.C. Shukla Vs. State, AIR
1980 SC 962. Thereafter, the Uttarakhand
High Court reasoned as below:

"Therefore, it can be seen that
there is no uniform understanding of the
word "interlocutory order". The word
assumes the meaning from the context of
the statute and the purpose of the statute.
We have already noticed that the Apex
Court in (1974) 2 SCC 387 took the view
that an order of amendment can, in certain
situations, be treated as a judgment. The
court took the view that, if the amendment
merely allows the plaintiff to state a new
cause of action or ask a new relief or
include a new ground of relief, all that
happens is that it is possible for the
plaintiff to make further contentions. The
court does not decide the correctness of the
contentions at that stage. It was found that
such amendment merely regulates the
procedure applicable. It does not decide
any question touching the merit of the
controversy. In a case, where, however, the
defence of immunity available to the
defendant is taken away in the matter of
limitation, it becomes a judgment. That
case, as already noticed, related to an
intra-court appeal. Here, we are concerned
with the Family Courts Act. Amendments of
pleadings are of different kinds. If an
appeal is allowed against amendments
ordered, one way to look at it is that the
matter would be decided at that stage and
he does not have to wait for an opportunity,
which he, undoubtedly, has to challenge the
order of amendment in the course of the
12 All. Smt. Anchal Goyal Vs. Parag Goyal
943
appeal against the final order, which would
be passed. It could be that, at that stage, if
the
appellate
court
finds
that
the
amendment
was
wholly
unjustifiably
allowed, the matter may merit a remand. If
the intention of the Legislature in excluding
interlocutory orders is to expedite the
proceedings in the matrimonial causes, will
not such a view hamper the object sought
to be achieved by the Legislature? Even
when a court allows an application for
2017:UHC:4732 13 amendment, it is
settled law that the court does not sit in
judgment over the correctness or the merit
of the pleadings. The amended proceedings
only will provide the framework within
which the trial would proceed, evidence
adduced,
arguments
canvassed
and
decision rendered. Further, the party has
always a right to challenge the order of
amendment in the appeal from the main
judgment. Also, it is not irrelevant to notice
that the party can, in appropriate cases,
invoke the jurisdiction under Article 226 of
227. The advantage of taking the view that
an order of amendment will not be treated
as a judgment and will be treated only as
interlocutory order is that the purpose of
the Family Courts would, in one sense, be
advanced, inasmuch as, the delay which
attends the challenge of proceedings and
before the appellate court would stand
obviated. Ordinarily, amendments are to be
allowed liberally. Therefore, an order
allowing an amendment is rarely interfered
with."
(emphasis supplied)

23. Thus, in his submission, the
decisions relied upon by learned counsel
for the appellant are distinguishable. In
any case, the decision of the learned
single
judge
in
Sudhanshu
Gupta
(supra) does not lay down the correct
law. Therefore, the present appeal is not
maintainable
and
it
may
not
be
entertained.

24. Having heard learned counsel for
the parties and having perused the record,
in the first place, the five - judge Full
Bench in Rama Shanker Tiwari (supra)
involved a completely different issue -
whether an order rejecting or allowing an
amendment application is "case decided"
within the meaning of that phrase used in
Section 115 CPC as was then in force in
the State of U.P. The Full Bench
answered the question in the affirmative
by 4:1 majority and held that such an
order is a "case decided". Therefore, the
issue decided was-though an order passed
under Order VI Rule 17 CPC may not be
a judgement but it would amount to a
"case decided" as may make it amenable
to revision jurisdiction of the High Court,
under Section 115 CPC. It was not
relevant to that decision and the Full
Bench did not deal with the issue whether
such an order may be described as an
"interlocutory order".