Karuna Kansal vs Hemant Kansal

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)

JUDGMENT

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 Signature Not Verified Digitally signed by Petition filed by the appellant herein and upheld the ASHOK RAJ SINGH Date: 2019.05.09 17:08:40 IST Reason:

order dated 09.08.2011 passed by the Single Judge of

1 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 ex parte decree

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

3 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

4 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

5 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

6 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

7 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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