Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.48474848 OF 2019
(Arising out of S.L.P.(C) Nos.75297530 of 2015)
Karuna Kansal ….Appellant(s)
VERSUS
Hemant Kansal & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1.
Leave granted.
2. These appeals are filed against the final judgment
and order dated 17.10.2014 passed by the Division
Bench of the High Court of Madhya Pradesh at Indore
in Review Petition No.48 of 2014 whereby the Division
Bench of the High Court dismissed the said Review
Petition filed by the appellant herein and upheld the
Signature Not Verified
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.05.09
17:08:40 IST
Reason:
order dated 09.08.2011 passed by the Single Judge of
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the High Court in Miscellaneous Appeal No.709 of
2005.
3. A few facts need mention hereinbelow for the
disposal of these appeals, which involve a short point.
4. The dispute, which is the subject matter of these
appeals, is between the husband (respondent No.1)
and his two wives (appellant and respondent No.2). It
arises out of the matrimonial suit decided by the
Family Court between respondent Nos. 1 and 2.
5. By impugned order dated 09.08.2011, the High
Court disposed of 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 the Code of
Civil Procedure, 1908 (hereinafter referred to as
“CPC”) against the order dated 10.12.2004 passed by
the Additional District Judge, Kukshi in MJC No. 35 of
2003.
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6. By order dated 10.12.2004, the ADJ had declined
to condone the delay in filing the application filed by
respondent No.2 under Order 9 Rule 13 of the CPC
and thereby declined to set aside the decree
ex parte
dated 23.08.2003 passed in C.S. No. 09A/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 ex parte decree for
dissolution of marriage of respondent No.1 with
respondent 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) filed
the aforesaid appeal of which the appellant had no
knowledge, but the fact of respondent No.1 having
married the appellant was indeed stated before the
High Court. However, when respondent No.1 stated
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that she was having no problem with the appellant,
the High Court set aside the ex parte decree passed on
23.08.2003 in C.S. No.09A of 2002 and directed that,
“the parties shall live together as husband and wife.”
The appellant herein (second wife of respondent No.1),
on coming to know of the aforesaid order dated
09.08.2011 passed by the Single Judge 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 High Court, by order dated 17.10.2014,
dismissed the said review petition. Challenging both
the orders, the appellant has filed the present appeals
by way of special leave in this Court.
8. Heard Mr. A.K. Chitale, learned senior counsel
for the appellant and Ms. Pankhuri and Mr. S.K.
Verma, learned counsel for the respondents.
9. Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
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constrained to allow these appeals, set aside the
impugned orders and remand the case to the High
Court for deciding the miscellaneous appeal afresh on
merits in accordance with law.
10. The need to remand the case has occasioned
because we find that the appellant was not made a
party to the appeal and nor she was heard by the High
Court.
11. On perusal of the impugned order dated
09.08.2011, we find 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.
12. 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
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such directions, which may not be capable of being
carried out, the impugned order, in our view, is wholly
without jurisdiction and legally unsustainable and it
has to be set aside on this short ground alone.
13. 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 herein under Order 9 Rule 13 of the
CPC and, if so, on what grounds.
14. In view of the foregoing discussion, the appeals
succeed and are accordingly allowed. 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
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appellant herein as a party respondent in the appeal
before the High Court.
15. We, however, consider it apposite to mention that
admittedly during pendency of the litigation, certain
events have taken place which have bearing over the
rights of the parties.
16. It is for this reason, we request the High Court to
implead the appellant herein as a party in the
miscellaneous appeal and persuade the parties to
settle the issues, if possible, on some mutually
acceptable terms to give quietus to this long pending
matrimonial dispute, since it is not in the 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 are not able to settle amicably for any
reason, the miscellaneous appeal be decided on its
merits in accordance with law without being
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influenced by any observations made in the impugned
order and in this order.
……...................................J.
[ABHAY MANOHAR SAPRE]
……...................................J.
[DINESH MAHESHWARI]
New Delhi;
May 09, 2019
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