# Vinay Mohan v. Nidhi Singh

- **Citation:** (2025) 11 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-12
- **Case number:** Special Appeal Defective No. 430 of 2025
- **Bench:** Rajan Roy, Rajeev Bharti
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-mohan-v-nidhi-singh-52740
- **Pages:** 6

## Headnote

128 INDIAN LAW REPORTS ALLAHABAD SERIES
under Article 227 arising out of the order of
Family Court in a matrimonial dispute.

Headnotes
(A) Practice and procedure - Special
Appeal - Maintainability - Matrimonial
matter - Impugned judgment was passed
under Article 227 of the Constitution of
India in respect of an order of Family
Court
rejecting
the
application
of
appellant seeking medical examination -
Exclusionary
category
of
Judgments
mentioned in Ch. VIII R. 5 of Rule, 1952
explained :
Held : So far as the Allahabad High Court is
concerned, special appeal is not maintainable
against a judgement, if it has been passed in
the exercise of jurisdiction conferred by Article
226 or Article 227 of the Constitution in respect
of any judgement or order of a Court. Now, the
judgement impugned herein has been passed
under Article 227 of the Constitution of India in
respect of an order of a court, i.e., the Family
Court referrable to the Family Courts Act, 1984
and the provisions of the Code of Civil
Procedure. The original court passed the order
in proceedings under Section 12 of the Hindu
Marriage Act, 1955 which was impugned before
the High Court Article 227 of the Constitution
and against the judgement passed in the said
proceedings, this appeal has been filed which is
apparently not maintainable. [Para 11] (E- 1)

Case Law Cited
Sheet Gupta v. State of U.P. and others, 2010
(28) LCD 1045; State of Madhya Pradesh and
others v. Visan Kumar Shiv Charan Lal, 2008
(15) SCC 233; M/S. Advani Oerlikon Ltd v.
Machindra Govind Makasare & Ors. Ig, AIR 2011
BOMBAY 84 : 2011 (3) AIR BOM R 178;
Sushilabai Laxminarayan Mudliyar v. Nihalchand
Waghajibhai Shah and others, AIR 1992 SC 185;
Smt. Pallavi v. Shri Raj Kamal, AIR 2008 JHAR
79; Jogendrasinhgji Vijaysinhji v. State Of
Gujarat and others, 2015 (9) SCC 1; Radhey
Shyam & Another v. Chhabi Nath and others,
2015 (5) SCC 423 - referred to.

List of Acts
Allahabad High Court Rules, 1952 - Chapter
VIII Rules 5; Hindu Marriage Act, 1955 -
Section 12.

List of Keywords
Maintainability of Appeal; Matrimonial matter;
Family court; Medical examination; Appellate
jurisdiction; Revisional jurisdiction; Power of
superintendence.

Case Arising From
Judgement and order dated 18.7.2025 passed
by the learned Single Judge in a petition filed
under Article 227 of the Constitution arising out
of an order dated 29.03.2025 passed by the
Family Court in Matrimonial Case.

Appearances for Parties
Advs. for the Petitioner : In person
Advs. For the Respondent :

## Text

11 All. Vinay Mohan Vs. Nidhi Singh
127

68. Now, in support this stand of the
plaintiff, there is no document on record to
indicate delivery of possession by the
defendant on 10.03.2005 or 12.03.2005 or
at any point of time whatsoever to the
plaintiff. There is also no document on
record to show the issue of any completion
certificate in the plaintiff's favour. There is
no document to show a sanctioned map in
the plaintiff's favour. There is neither a
sanctioned map nor a completion certificate
issued in favour of the defendant either
placed on record, but the last document,
evidencing delivery of possession is a
memo of possession dated 10.03.2005
issued by the NOIDA, which shows
delivery of possession of the suit property
to the defendant on the said date. The said
document bears paper No. 16-Ga/1.

69. In the absence of any documentary
evidence to establish the plaintiff's claim
that she in fact got a map sanctioned to
raise constructions on the suit property,
constructed thereon and then secured a
completion certificate, it is difficult to
accept her case about the constructions, if
any existing on the suit property, belonging
to the plaintiff. By infallible documentary
evidence, that is to say, the lease deed
dated 25.02.2005 and the memo of
possession dated 10.03.2005, possession
remains that of the defendant.

70. Since we have reached the
conclusions
that
specific
performance
cannot be granted in the plaintiff's favour,
the decree of the Trial Court to that effect
has to be set aside. At the same time,
investment of a sum of Rs.43,98,959/- in
securing the lease deed in the defendant's
favour from the NOIDA being well
established, may be as part of a contract
inter se the plaintiff and the defendant, the
validity of which is not countenanced by
law, the defendant cannot be permitted to
retain the sum of money expended by the
plaintiff to pay consideration for the lease
deed, ultimately executed in the defendant's
favour by the NOIDA. To permit the
defendant to retain the said sum of money
or
benefit
would
amount
to unjust
enrichment albeit under a contract, that is
invalid in law.

71. In the result, this appeal succeeds
and is allowed with costs. The decree for
specific performance passed by the Trial
Court is set aside. There shall be a decree
in favour of the plaintiff, ordering the
defendant to pay a sum of Rs.43,98,959/-
to the plaintiff together with simple interest
at the rate of 6% per annum from the date
of institution of the suit until payment of
the decretal amount.

72. Let a decree be drawn up,
accordingly.
----------
(2025) 11 ILRA 127
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.11.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAJEEV BHARTI, J.

Special Appeal Defective No. 430 of 2025

Vinay Mohan ...Appellant
Versus
Nidhi Singh ...Respondent

Counsel for the Appellant:
In Person

Counsel for the Respondent:

Issue for Consideration
Maintainability of Special Appeal against the
Judgments of Single Judge passed in a matter
128 INDIAN LAW REPORTS ALLAHABAD SERIES
under Article 227 arising out of the order of
Family Court in a matrimonial dispute.

Headnotes
(A) Practice and procedure - Special
Appeal - Maintainability - Matrimonial
matter - Impugned judgment was passed
under Article 227 of the Constitution of
India in respect of an order of Family
Court
rejecting
the
application
of
appellant seeking medical examination -
Exclusionary
category
of
Judgments
mentioned in Ch. VIII R. 5 of Rule, 1952
explained :
Held : So far as the Allahabad High Court is
concerned, special appeal is not maintainable
against a judgement, if it has been passed in
the exercise of jurisdiction conferred by Article
226 or Article 227 of the Constitution in respect
of any judgement or order of a Court. Now, the
judgement impugned herein has been passed
under Article 227 of the Constitution of India in
respect of an order of a court, i.e., the Family
Court referrable to the Family Courts Act, 1984
and the provisions of the Code of Civil
Procedure. The original court passed the order
in proceedings under Section 12 of the Hindu
Marriage Act, 1955 which was impugned before
the High Court Article 227 of the Constitution
and against the judgement passed in the said
proceedings, this appeal has been filed which is
apparently not maintainable. [Para 11] (E- 1)

Case Law Cited
Sheet Gupta v. State of U.P. and others, 2010
(28) LCD 1045; State of Madhya Pradesh and
others v. Visan Kumar Shiv Charan Lal, 2008
(15) SCC 233; M/S. Advani Oerlikon Ltd v.
Machindra Govind Makasare & Ors. Ig, AIR 2011
BOMBAY 84 : 2011 (3) AIR BOM R 178;
Sushilabai Laxminarayan Mudliyar v. Nihalchand
Waghajibhai Shah and others, AIR 1992 SC 185;
Smt. Pallavi v. Shri Raj Kamal, AIR 2008 JHAR
79; Jogendrasinhgji Vijaysinhji v. State Of
Gujarat and others, 2015 (9) SCC 1; Radhey
Shyam & Another v. Chhabi Nath and others,
2015 (5) SCC 423 - referred to.

List of Acts
Allahabad High Court Rules, 1952 - Chapter
VIII Rules 5; Hindu Marriage Act, 1955 -
Section 12.

List of Keywords
Maintainability of Appeal; Matrimonial matter;
Family court; Medical examination; Appellate
jurisdiction; Revisional jurisdiction; Power of
superintendence.

Case Arising From
Judgement and order dated 18.7.2025 passed
by the learned Single Judge in a petition filed
under Article 227 of the Constitution arising out
of an order dated 29.03.2025 passed by the
Family Court in Matrimonial Case.

Appearances for Parties
Advs. for the Petitioner : In person
Advs. For the Respondent :

(Delivered by Hon'ble Rajan Roy, J.)
&
(Hon'ble Rajeev Bharti, J.)

Order
on
Delay
Condonation
Application

1. Heard.

2. Although we have serious doubts as
regards the maintainability of this special
appeal under Chapter VIII Rules 5 of the
Allahabad
High
Court
Rules,
1952,
nevertheless, as the appeal is delayed, first
and foremost we have to consider the delay
whether it is liable to be condoned.

3. Having gone through the affidavit in
support of the application for condonation
of delay, we find that the cause shown is
sufficient.

4. Accordingly, we condone the delay
in filing the appeal.

Order on Appeal

5. We now proceed to consider the
maintainability of the appeal under Chapter
VIII Rules 5 of the Rules, 1952.
11 All. Vinay Mohan Vs. Nidhi Singh
129

6. The appeal is directed against the
judgement and order dated 18.7.2025
passed by the learned Single Judge in a
petition filed by the appellant under Article
227 of the Constitution bearing No. 4232 of
2025 (Vinay Mohan vs. Nidhi Singh).

7. The petition under Article 227 itself
was filed challenging an order dated
29.03.2025 passed by the Family Court in
Matrimonial Case No. 2162 of 2022 filed
under Section 12 of the Hindu Marriage
Act, 1955, wherein the application of the
appellant-petitioner
seeking
medical
examination had been rejected.

8. Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952 reads as
under:-

5. Special appeal :- An appeal shall
lie to the Court from a judgment (not being a
judgment passed in the exercise of appellate
jurisdiction) in respect of a decree or order
made
by
a
Court
subject
to
the
superintendence of the Court and not being an
order made in the exercise of revisional
jurisdiction or in the exercise of its power of
superintendence or in the exercise of criminal
jurisdiction [or in the exercise of the
jurisdiction conferred by Article 226 or Article
227 of the Constitution in respect of any
judgment, order or award--(a) of a tribunal,
Court or statutory arbitrator made or
purported to be made in the exercise or
purported exercise of jurisdiction under any
Uttar Pradesh Act or under any Central Act,
with respect to any of the matters enumerated
in the State List or the Concurrent List in the
Seventh Schedule to the Constitution, or (b) of
the Government or any officer or authority,
made or purported to be made in the exercise
or purported exercise of appellate or
revisional jurisdiction under any such Act of
one Judge."

9. As per the said provision, an appeal
shall lie to the Court from a judgement of
one Judge. However, there is an exclusion
clause which excludes the cases in which
appeal cannot be filed.

10. On a bare reading of the aforesaid
provision in order an appeal to be
maintainable under Chapter VIII Rule 5 of
the Rules, 1952 against a judgement, it has
to be a judgement which has not been
passed in exercise of appellate jurisdiction
in respect of a decree or order made by a
Court subject to superintendence of the
Court and not being an order made in the
exercise of revisional jurisdiction, or in the
exercise of power of superintendence, or
in the exercise of criminal jurisdiction,
or
in
the
exercise
of
jurisdiction
conferred by Article 226 or Article 227
of the Constitution in respect of any
judgement, order or award (a) of a
Tribunal, Court or statutory arbitrator
made or purported to be made in exercise
of jurisdiction under any Uttar Pradesh Act
or under any Central Act, with respect to
any of the matters enumerated in the State
List or the Concurrent List in the Seventh
Schedule to the Constitution, or (b) of the
Government or any officer or authority,
made or purported to be made in the
exercise or purported exercise of appellate
or revisional jurisdiction under any such
Act.

11. Thus, as per the aforesaid Rules,
so far as the Allahabad High Court is
concerned,
special
appeal
is
not
maintainable against a judgement, if it has
been passed in the exercise of jurisdiction
conferred by Article 226 or Article 227 of
the
Constitution
in
respect
of
any
judgement or order of a Court. Now, the
judgement impugned herein has been
passed
under
Article
227
of
the
130 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India in respect of an order
of a court, i.e., the Family Court referrable
to the Family Courts Act, 1984 and the
provisions of the Code of Civil Procedure.
The original court passed the order in
proceedings under Section 12 of the Hindu
Marriage Act, 1955 which was impugned
before the High Court Article 227 of the
Constitution and against the judgement
passed in the said proceedings, this appeal
has been filed which is apparently not
maintainable.

12. The law in this regard has been
settled by a Full Bench of this Court. The
provision of Chapter VIII Rule 5 of the
Rules has been considered and its purport
explained by a Full Bench of this Court in
the case of Sheet Gupta vs. State of U.P.
and others : 2010 (28) LCD 1045.

13. As regards reliance placed by the
appellant upon the judgement of Hon'ble
Supreme Court in State of Madhya Pradesh
and others vs. Visan Kumar Shiv Charan
Lal : 2008 (15) SCC 233, that was a case
pertaining to the Madhya Pradesh High Court
where the provision for an intra court
appeal/letters patent appeal is different from
the one applicable in the Allahabad High
Court. The provision contained in Section 2 of
the Madhya Pradesh Uchcha Nyayalaya
(Khand) Nyaypeeth Ko Appeal) Adhiniyam,
2005 reads as under:-

"2. Appeal to the Division Bench
of the High Court from a judgment or
order of one Judge of the High Court
made in exercise of original jurisdiction.-
(1) An appeal shall lie from a Judgment or
order passed by one Judge of the High
Court in exercise of original jurisdiction
under Article 226 of the Constitution of
India, to a Division Bench Comprising of
two judges of the same High Court:

Provided that no such appeal
shall lie against an interlocutory order or
against an order passed in exercise of
supervisory Jurisdiction under Article 227
of the Constitution of India.

(2) An appeal under sub-section
(1) shall be filed within 45 days from the
date of order passed by a single Judge.

Provided that any appeal may be
admitted after the prescribed period of 45
days, if the petitioner satisfies the Division
Bench that he had sufficient cause for not
preferring the appeal within such period.

Explanation. The fact that the
petitioner was misled by any order.
practice or judgment of the High Court in
ascertaining or computing the prescribed
period may be sufficient cause within the
meaning of this sub-section.

(3) An appeal under sub-section
(1) shall be filed, heard and decided in
accordance with the procedure as may be
prescribed by the High Court."

14. A conjoint reading of Chapter VIII
Rule 5 of the Rules, 1952 applicable in the
Allahabad High Court and Section 2 of the
Act, 2005 applicable in the Madhya
Pradesh High Court shows the apparent
difference in the two provisions. Here the
question is not as to whether the petition
under which the judgement impugned in
this appeal was passed under Article 226 or
227 as, in our case, both, the judgements
passed under Article 226 and 227, are not
amenable to the jurisdiction of the special
appellate Court under Chapter VIII Rule 5,
if, they fall in any of the exclusionary
categories mentioned in the said provision,
such as, a judgement or order rendered in a
petition under Article 226 or 227 in respect
11 All. Vinay Mohan Vs. Nidhi Singh
131
of any judgement of any Court etc.,
therefore, reliance placed by the appellant
appearing in person upon the aforesaid
decision of the Hon'ble Supreme Court is
misplaced. The said judgement does not
apply in the facts of this case and in view
of the provision applicable herein.

15. The other judgement relied upon
by the appellant appearing in person has
been rendered by Full Bench of the
Bombay High Court in the case of M/S.
Advani Oerlikon Ltd vs Machindra
Govind Makasare & Ors. Ig : AIR 2011
BOMBAY 84, 2011 (3) AIR BOM R 178.
One of the issues in the said case was as
under:

"9. If the petition is filed only
under Article 227 and the order passed
therein which amounts to judgment is
passed in favour of the Petitioner,
whether or not it is open for the
respondent in the petition to challenge
the said order in an appeal under clause
15 of the Letters Patent contending that
though the writ petition was one filed
under Article 227 it was also one under
Article 226 as facts justify or it ought to
have been filed under Article 226 only
and, hence, the Letters Patent Appeal is
maintainable against an order passed
thereon?"

16. The issue therein was essentially
as to whether the impugned judgement had
been passed by the learned Single Judge in
exercise of its power under Article 226 or
227 as, a letter patent appeal or intra court
appeal under the Bombay High Court Rules
was maintainable only if the judgement had
been passed under Article 226 of the
Constitution of India and not under Article
227. The Full Bench answered the issue
No. 9 as under:-

"VBC 42 lpa261.05 Re: 9 : In a
situation where a petition is filed under
Article 227 of the Constitution and
judgment is rendered in favour of the
Petitioner, recourse to an appeal under
Clause 15 of the Letters Patent is not
barred to the Respondent before the Single
Judge merely on the ground that the
petition was under Article 227."

17. The issue involved in the said case
is not involved herein. It is not a question
as to whether the judgement impugned in
this appeal has been passed under Article
226 or 227 of the Constitution of India. The
legal position is, irrespective of the
aforesaid i.e., even if it is passed under
Article 226, if the judgement impugned
arises out of proceedings whether under
Article 226 or 227 wherein an order of a
Court is under challenge, then an intra
court appeal against the judgement of the
learned Single Judge would not lie before
the Division Bench under Chapter VIII
Rule 5 of the Allahabad High Court Rules
1952, therefore, reliance placed by the
appellant on the aforesaid Full Bench
decision of the Bombay High Court is also
misconceived.

18. The appellant has further relied
upon a judgement of the Hon?ble Supreme
Court
in
Sushilabai
Laxminarayan
Mudliyar vs. Nihalchand Waghajibhai
Shah and others : AIR 1992 SC 185 to
contend
that
this
appeal
would
be
maintainable. Having gone through the said
judgement, we find that in that case also,
the issue was as to whether appeal would
lie against a judgement passed by the
learned Single Judge under Article 227 of
the Constitution of India or not. We have
already mentioned that this is not the issue
involved in this petition, therefore, this
judgement has no application to the facts of
132 INDIAN LAW REPORTS ALLAHABAD SERIES
this case and the provision which is
applicable herein is different.

19. Another judgement cited by the
appellant was rendered by a Bench of the
Jharkhand High Court in the case of Smt.
Pallavi vs. Shri Raj Kamal : AIR 2008
JHAR 79. We have gone through the said
judgement. There also the issue was as to
whether the judgement of the learned
Single Judge which was impugned in
appeal was under Article 226 or 227 of the
Constitution of India and in that context,
the observations were made. We have
already stated that this is not the issue
involved herein. Here the provision under
which the appeal is maintainable is very
different from the provision which may be
applicable in the Bombay High Court or the
Jharkhand High Court.

20. For all these reasons, we are of the
opinion that none of the decisions relied
upon by the appellant are applicable nor to
make this appeal maintainable before us.

21. We may also mention that there is
another judgement reported in 2015 (9)
SCC 1 : Jogendrasinhgji Vijaysinhji vs.
State Of Gujarat and others, wherein
considering the relevant Rules of the
Gujarat High Court and after perusing the
authoritative pronouncements on subject,
Hon'ble Supreme Court held that an order
passed by the Civil Court can only be
assailed
under
Article
227
of
the
Constitution of India and the parameters of
challenge have been clearly laid down by
the Supreme Court in series of decisions
which have been referred to by ThreeJudge Bench in Radhey Shyam &
Another vs. Chhabi Nath and others :
2015 (5) SCC 423, which is a binding
precedent. Needless to emphasize that once
it is exclusively assailable under Article
227 of the Constitution of India, no intra
court appeal is maintainable. Now this
again is a judgement based on the Rules
applicable in the Gujarat High Court. We
have mentioned it only in the context of
rulings cited by the appellant, otherwise the
provision as applicable in the Allahabad
High Court is different, as quoted hereinabove.

22. For all the aforesaid reasons, this
special appeal is not maintainable. The
appellant is at liberty to pursue other
remedies unaffected by dismissal of this
appeal
as
not
maintainable.
It
is,
accordingly,
dismissed
as
not
maintainable.
----------
(2025) 11 ILRA 132
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2025

BEFORE

THE HON'BLE SIDDHARTH NANDAN, J.

Writ C No. 13413 of 2024

Hawaldar Yadav ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Jitendra Kumar Upadhyay

Counsel for the Respondents:
Bhupendra Kumar Tripathi, C.S.C., Paras
Nath Bind, Sabhajeet

Issue for consideration
The key issue was whether the mechanism
provided u/s 65 of the U.P. Revenue Code,2006
for delivering possession to the allottee is
limited only to the initial stage (at the time of
allottment) or if it remains effective for
subsequent
dispossessions
during
the
subsistence of the lease.