JUDGMENT :

RAJESH S. PATIL, J.

1. Interim Application (L) No. 15043 of 2023, is filed for condoning delay of 56 days in filing the Appeal. In paragraph no. 11 and 12 of the Interim Application, it is stated that the Appellant had initially filed a Special Leave Petition in the Supreme Court, challenging the Judgment and Order dated 13 March, 2023. The Special Leave Petition was disposed of on 17 May, 2023. Therefore, the Appellant is seeking exclusion of the time period from 23 March, 2023 to 17 May, 2023 (55 Days) during which the Appellant was duly prosecuting the Special Leave Petition. We have gone through the submissions made in the I.A. and are satisfied with the reasons stated for condoning the delay, hence I.A. is allowed.

2. By consent, the Appeal is taken up for final hearing.

3. This appeal arises out of a challenge to the Judgment and Order dated 13 March, 2023 passed by the Single Judge of this Court dismissing the Appellant’s (original defendant), Interim Application (L) No. 35119/2022 which was filed for rejection of plaint under the provisions of Order VII Rule 11 of Code of Civil Procedure and in the alternative to transfer the suit to the Family Court, for trial along with Petition filed by Respondent/Plaintiff for dissolution of the marriage.

4. Facts:

4.1 Appellant and Respondent are both lawyers by profession and follow Zoroastrian religion. Appellant and Respondent got married on 29 March, 2012 under the provisions of Special Marriage Act, 1954, in Mumbai. On 1 April, 2012 the Appellant and Respondent also solemnized their marriage through religious rituals and registered their marriage under the provisions of Parsi Marriage and Divorce Act, 1936. From the wedlock two children were born first child Eva and second child Kian.

4.2 However, after few years of marriage there were disputes and differences in the marital life of the Appellant and Respondent. Allegations are made by the Appellant and Respondent against one another as regards to certain financial transaction being executed by one without the consent of the other.

4.3 On 7 September, 2022 a suit was filed by the Respondent/Husband in this Court in its Original Jurisdiction bearing Suit No. 335/2022 (for sake of convenience referred as “the First Suit”) for recovery of amounts, along with an Interim Application being I.A. (L) No. 28657/2022. On the said I.A. (L) No. 28657/2022, Single Judge of this Hon’ble Court passed an interim order on 7 September, 2022.

4.4 Further on 21 September, 2022 the Respondent/Husband filed one more Interim Application being Interim Application No. 30377/2022 in the First Suit. An order was passed on the Interim Application No. 30377/2022 on 23 September, 2022.

4.5 Respondent/Husband on 26 September, 2022 filed another suit before the Parsi Chief Matrimonial Court in this High Court in its Original Civil Jurisdiction. The suit was filed under Section 32(dd)(1) of the Parsi Marriage and Divorce Act, 1936 inter alia for dissolution of marriage solemnized between him and the Appellant along with a prayer for permanent custody of the children. The said suit was numbered as Parsi Suit No. 20/2022. (for sake of convenience referred as “ the Second Suit”)

4.6 On 29 September, 2022 the learned Single Judge of this Court by his order clarified the interim order passed on 07 September, 2022 in the Interim Application (L) No. 28657/2022 in the first Suit. On 20th October, 2022 the Single Judge of this Court made certain modification to the earlier order passed on 07 September, 2022 in the first Suit.

4.7 Respondent/Husband thereafter on 3 November, 2022 filed proceedings for dissolution of marriage under the provisions of Section 27(d) of the Special Marriage Act, 1954 in Family Court at Bandra, Mumbai bearing Petition No. A3217/2022. (for sake of convenience referred as “ the Divorce Petition”)

4.8 On 11 November, 2022 the Appellant/Wife filed I.A. (L) No. 35119 of 2022 in the first suit, under the provisions of Order VII Rule 11(d) of the Co