KARUNA KANSAL versus HEMANT KANSAL & ANR. on 9 May 2019

[2019] 7 S.C.R. 477

KARUNA KANSAL

v

HEMANT KANSAL & ANR.

(Civil Appeal Nos. 4847– 4848 of 2019)

MAY 09, 2019

[ABHAY MANOHAR SAPRE AND

DINESH MAHESHWARI, JJ.]

Code of Civil Procedure, 1908: Or. 43, r. 1(d) – Appeal fromorders – Appeal u/Or. 43 r. 1(d) by first wife-respondent no.2 againstthe husband-respondent no.1, against the order passed by the trialcourt refusing to condone the delay in filing application by firstwife and rejection to set aside the exparte decree for dissolution ofmarriage of respondent no. 1 and 2 – High Court set aside theexparte decree and issued directions that the respondent no. 1 and2 to live together as husband and wife – Review by appellant-secondwife – Dismissed by the Division Bench – On appeal held: HighCourt, even after taking note of the factum of the marriage of theappellant with respondent No.1, did not advert to the consequencesthereof and gave directions, which may not be capable of dueperformance – High Court passed the order without hearing theappellant and did not issue any notice of the appeal to her – Thus,the impugned order wholly without jurisdiction and legallyunsustainable – Matter remanded to the High Court for decidingthe appeal afresh after impleading the appellant as a partyrespondent in the appeal before the High Court – Party/Parties –Necessary parties – Impleadment.

Allowing the appeal, the Court

HELD : 1.1 On perusal of the impugned order, it is foundthat the High Court, even after taking note of the factum of themarriage of the appellant with respondent No.1, has not advertedto the consequences thereof and has given such directions, whichmay not be capable of due performance. In such a situation, wherethe impugned order was passed without hearing the appellantand not issuing any notice of the appeal to her and yet givingsuch directions, which may not be capable of being carried out,

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Athe impugned order is wholly without jurisdiction and legallyunsustainable. [Para 11, 12] [480-C-D]

1.2 It is apart from the fact as to whether such directionscould at all be issued; and secondly, whether such directions werenecessary in an appeal between the respondents inter se for itsBdisposal wherein the only question involved was as to whetherthe Family Court (ADJ) was justified in declining to condone thedelay in filing the application filed by respondent No.1 under Order9 Rule 13 CPC and, if so, on what grounds. The impugned ordersare set aside. The case is remanded to the High Court for decidingthe miscellaneous appeal afresh on merits in accordance withClaw after impleading the appellant as a party respondent in theappeal before the High Court and persuade the parties to settlethe issues. [Paras 13, 14, 16] [480-E-F; H; 481-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4847-4848 of 2019.D

From the Judgment and Order dated 17.10.2014 of the HighCourt of Madhya Pradesh, Bench at Indore in Review Petition No. 48of 2014 and order dated 09.08.2011 in M.A. No. 709 of 2005.

A. K. Chitale, Sr. Adv., Sumit Kumar Sharma, Neeraj Srivastava,ERahul Tripathi, Kartik Chitale, Niraj Sharma, Advs. for the Appellant.

Ms. Pankhuri, Tushar Singh, S. K. Verma, Advs. for theRespondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.F

2. These appeals are filed against the final judgment and orderdated 17.10.2014 passed by the Division Bench of the High Court ofMadhya Pradesh at Indore in Review Petition No.48 of 2014 wherebythe Division Bench of the High Court dismissed the said Review Petitionfiled by the appellant herein and upheld the order dated 09.08.2011 passedGby the Single Judge of the High Court in Miscellaneous Appeal No.709of 2005.

3. A few facts need mention hereinbelow for the disposal of theseappeals, which involve a short point.

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4. The dispute, which is the subject matter of these appeals, isbetween the husband (respondent No.1) and his two wives (appellantand respondent No.2). It arises out of the matrimonial suit decided bythe Family Court between respondent Nos. 1 and 2.

5. By impugned order dated 09.08.2011, the High Court disposedof the appeal (M.A. No.709/2005) filed by respondent No.2 (first wife)against respondent No.1 (husband) under Order 43 Rule 1 (d) of theCode of Civil Procedure, 1908 (hereinafter referred to as “CPC”) againstthe order dated 10.12.2004 passed by the Additional District Judge, Kukshiin MJC No. 35 of 2003.

6. By order dated 10.12.2004, the ADJ had declined to condonethe delay in filing the application filed by respondent No.2 under Order 9Rule 13 of the CPC and thereby declined to set aside the ex partedecree dated 23.08.2003 passed in C.S. No. 09-A/02 by the said Court.

7. The appellant herein is the second wife of respondent No.1(husband). It is the case of the appellant that after passing of the exparte decree for dissolution of marriage of respondent No.1 withrespondent No.2 and expiry of period of limitation for filing appeal,respondent No.1(husband) entered into matrimony with her (appellant).On the other hand, respondent No.2 (first wife of respondent No.1) filedthe aforesaid appeal of which the appellant had no knowledge, but thefact of respondent No.1 having married the appellant was indeed statedbefore the High Court. However, when respondent No.1 stated thatshe was having no problem with the appellant, the High Court set asidethe ex parte decree passed on 23.08.2003 in C.S. No.09-A of 2002 anddirected that, “the parties shall live together as husband and wife.”The appellant herein (second wife of respondent No.1), on coming toknow of the aforesaid order dated 09.08.2011 passed by the SingleJudge of the High Court in M.A. No.709/2005, filed review petition (R.P.No.48 of 2014) before the High Court. The Division Bench of the HighCourt, by order dated 17.10.2014, dismissed the said review petition.Challenging both the orders, the appellant has filed the present appealsby way of special leave in this Court.

8. Heard Mr. A.K. Chitale, learned senior counsel for the appellantand Ms. Pankhuri and Mr. S.K. Verma, learned counsel for therespondents.

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9. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow these appeals, setaside the impugned orders and remand the case to the High Court fordeciding the miscellaneous appeal afresh on merits in accordance withlaw.

B10. The need to remand the case has occasioned because wefind that the appellant was not made a party to the appeal and nor shewas heard by the High Court.

11. On perusal of the impugned order dated 09.08.2011, we findthat the High Court, even after taking note of the factum of the marriageCof the appellant with respondent No.1, has not adverted to theconsequences thereof and has given such directions, which may not becapable of due performance.

12. In such a situation, where the impugned order was passedwithout hearing the appellant and not issuing any notice of the appeal toDher and yet giving such directions, which may not be capable of beingcarried out, the impugned order, in our view, is wholly without jurisdictionand legally unsustainable and it has to be set aside on this short groundalone.

13. It is apart from the fact as to whether such directions could atEall be issued; and secondly, whether such directions were necessary inan appeal between the respondents inter se for its disposal wherein theonly question involved was as to whether the Family Court (ADJ) wasjustified in declining to condone the delay in filing the application filed byrespondent No.1 herein under Order 9 Rule 13 of the CPC and, if so, onwhat grounds.F

14. In view of the foregoing discussion, the appeals succeed andare accordingly allowed. The impugned orders are set aside. The caseis remanded to the High Court for deciding the miscellaneous appealafresh on merits in accordance with law after impleading the appellantherein as a party respondent in the appeal before the High Court.G

15. We, however, consider it apposite to mention that admittedlyduring pendency of the litigation, certain events have taken place whichhave bearing over the rights of the parties.

16. It is for this reason, we request the High Court to implead theappellant herein as a party in the miscellaneous appeal and persuade theH

parties to settle the issues, if possible, on some mutually acceptable termsto give quietus to this long pending matrimonial dispute, since it is not inthe interest of any of the parties to these appeals to continue this litigation.

17. It is only if the High Court eventually finds that the parties arenot able to settle amicably for any reason, the miscellaneous appeal bedecided on its merits in accordance with law without being influencedby any observations made in the impugned order and in this order.

Nidhi Jain

Appeal allowed.

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