The court has the discretion to allow an appeal to be converted into a writ application without deciding the question of maintainability.

1. Heard the parties.

2. This appeal has been filed under section 19 of the Family Courts Act (hereinafter referred to as the Act) against the impugned order rendered by Principal Judge, Family Court, Patna, whereby the objection raised by the appellant with regard to maintainability of the suit in question filed before trial court has been rejected on merit as well as on the ground that the said application was not maintainable.

3. Shri S.K.Mazumdar, learned counsel appearing on behalf of the sole respondent raised a preliminary objection with regard to maintainability of this appeal on the ground that in view of the provisions engrafted in section 19(1) of the Act, the appeal is not maintainable against an interlocutory order passed by a Family Court, it has been further submitted that under sub- section (5) of section 19 of the Act, a revision is also not maintainable before this Court under section 115 of the Code of Civil Procedure.

4. On the other hand, Shri R.K.Jain, learned Senior Counsel appearing on behalf of the appellant submitted that the impugned order cannot be treated to be interlocutory one; as such the bar provided under section 19(1) of the Act shall not operate. Learned counsel appearing on behalf of the parties placed reliance upon various decisions in support of their submissions.

5. In our view, it would not be necessary to go into this intricate question in view of the nature of the order which we propose to pass. Therefore, without deciding the question of maintainabilty of this appeal, we allow the prayer made on behalf of the appellant to convert this appeal into a writ application.

6. Learned counsel appearing on behalf of the appellant attacked the order on various grounds, principal being that the trial court was not justified in going into merit of the petition for deciding the question of maintainability of the suit filed before it, once it has come to the conclusion that the said petition was not maintainable as there were certain defects therein, which have been enumerated in paragraph 20 of the judgment under appeal, it is well settled that once a court comes to the conclusion that the proceeding before it was not maintainable, it has no jurisdiction to go into its merit, but if any such decision is rendered on merit, the same shall not operate as res judicata in a subsequent proceeding or different stage of the said proceeding as the case may be. Ordinarily, on this ground alone we would have set aside the impugned order, but in this case, in our view, it is not necessary to set aside the same, but we may observe that the trial court had no jurisdiction to go into merit of the petition for deciding the question of maintainability once it has come to the conclusion that the same was not maintainable as there were certain defects therein.

7. As no written statement has been filed as yet, we may observe that it will be open to the appellant to raise a plea in the written statement in relation to maintainability of the suit and if such a plea is raised and pressed, while framing issues the trial court shall frame one of the issues on the question of maintainability of the suit and the said issue shall be considered and decided along with other issues in the main judgment which shall be delivered upon conclusion of trial without being prejudiced by any observation in the impugned order.

8. With the aforesaid observations and directions, this appeal is disposed of.