Code of Civil Procedure, 1908: Or. 43, r. 1(d) – Appeal from orders – Appeal u/Or. 43 r. 1(d) by first wife-respondent no.2 against the husband-respondent no.1, against the order passed by the trial court refusing to condone the delay in filing application by first wife and rejection to set aside the exparte decree for dissolution of marriage of respondent no. 1 and 2 – High Court set aside the exparte decree and issued directions that the respondent no. 1 and
2 to live together as husband and wife – Review by appellant-second wife – Dismissed by the Division Bench – On appeal held: High Court, even after taking note of the factum of the marriage of the appellant with respondent No.1, did not advert to the consequences thereof and gave directions, which may not be capable of due performance – High Court passed the order without hearing the appellant and did not issue any notice of the appeal to her – Thus, the impugned order wholly without jurisdiction and legally unsustainable – Matter remanded to the High Court for deciding the appeal afresh after impleading the appellant as a party respondent 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 found that the High Court, even after taking note of the factum of the marriage of the appellant with respondent No.1, has not adverted to the consequences thereof and has given such directions, which may not be capable of due performance. In such a situation, where the impugned order was passed without hearing the appellant and not issuing any notice of the appeal to her and yet giving such directions, which may not be capable of being carried out, the impugned order is wholly without jurisdiction and legally unsustainable. [Para 11, 12] [480-C-D]
1.2 It is apart from the fact as to whether such directions could at all be issued; and secondly, whether such directions were necessary in an appeal between the respondents inter se for its disposal wherein the only question involved was as to whether the Family Court (ADJ) was justified in declining to condone the delay in filing the application filed by respondent No.1 under Order
9 Rule 13 CPC and, if so, on what grounds. The impugned orders are set aside. The case is remanded to the High Court for deciding the miscellaneous appeal afresh on merits in accordance with law after impleading the appellant as a party respondent in the appeal before the High Court and persuade the parties to settle the issues. [Paras 13, 14, 16] [480-E-F; H; 481-A]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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