Case: KARUNA KANSAL Vs. HEMANT KANSAL

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 order dated 09.08.2011 passed by the Single Judge of 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 2003.6. 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 ex parte decree 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 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 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.09-A 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are 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 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.