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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
MANISH KUMAR NIGAM, J.
Nagendra Sharma And Another – Appellants
Versus
Court Of Prin. Judge Family Court Gonda And Another – Respondents
Writ C No. - 6354 of 2022
Decided on : 18-10-2024
(A) Family Courts Act, 1984 - Sections 10, 19, and 20 - Jurisdiction of Family Court - Writ of prohibition sought against Family Court's proceedings under Order IX Rule 13 C.P.C. - Court held that Family Court has jurisdiction to entertain such applications as per Section 10 of the Family Courts Act, 1984 - Prohibition cannot lie against a court acting within its jurisdiction. (Paras 5, 12, 27)
(B) Writ of Prohibition - Nature and scope - A writ of prohibition is a preventive measure to restrain inferior courts from exceeding their jurisdiction - It does not apply to correct errors in the exercise of jurisdiction. (Paras 7, 28)
Facts of the case:
The petitioner sought to prohibit the Family Court from proceeding with an application under Order IX Rule 13 C.P.C. after a divorce decree was granted. The respondent contended that the Family Court had jurisdiction to entertain the application due to alleged fraud.
Findings of Court:
The Family Court has jurisdiction under the Family Courts Act to entertain applications under Order IX Rule 13 C.P.C. and the writ of prohibition is not maintainable.
Issues: Whether the Family Court had jurisdiction to entertain the application under Order IX Rule 13 C.P.C. and whether a writ of prohibition could be issued.
Ratio Decidendi: The court ruled that the Family Court is deemed a civil court under Section 10 of the Family Courts Act, thus having jurisdiction to entertain applications under the C.P.C. Prohibition cannot be issued against a court acting within its jurisdiction.
Result: Writ petition dismissed.
JUDGMENT :
Hon'ble Manish Kumar Nigam, J.
1. Heard Shri Amrendra Kumar Bajpai, assisted by Ms. Tejaswini Bajpai, learned counsel for the petitioners, Shri Ashok Mishra, Advocate holding brief of Shri Amrendra Nath Tripathi, learned counsel for respondents.
2. This petition has been filed for the following relief:
"I. To issue a writ, direction or order in the nature of Prohibition to refrain the O.P. no. 1 from acting beyond jurisdiction by initiating proceedings under Order XI Rule 13 read with Section 151 C.P.C. in Case No. 52 of 2019-Smt. Sarla Sharma Vs. Nagendra Sharma & Another for recalling the judgment dated 16.01.2019.
II. To issue a writ, direction or order in the nature of Certiorari to quash / set asdie the ex-parte orders dated 29.05.2019 (Annexure Nos. 1 & 2) and order dated 22.08.2022 (Annexure No. 13) passed by the O.P. no. 1 in Case No. 52 of 2019- Smt. Sarla Sharma Vs. Nagendra Sharma & Another."
3. Learned counsel for the respondent submitted that since question of jurisdiction is involved in the present writ petition, therefore, he does not intend to file counter affidavit and matter may be heard and decided to which learned counsel for the petitioner has no objection. Therefore, matter is decided with the consent of the parties without calling for a counter affidavit.
4. Before considering the merits of the case it will be useful to refer the brief facts of the case. The petitioner No. 1 was married to the respondent no. 2 on 13.03.1996 and out of their wedlock two children were born on 06.06.1999 and 28.09.2002. Thereafter, certain differences arose between the parties which led to filing of certain cases against the petitioner, details of which is given in paragraph no. 4 to 8 of the writ petition. The petitioner no. 1 thereafter filed an application under Section 13 of the Hindu Marriage Act for divorce being Case No. 1006 of 2017 (Nagendra Sharma v. Smt. Sarla Sharma) in the court of Principal Judge, Family Court, Gonda on 06.11.2017 and after exchange of pleadings between the parties, the application filed by the petitioner no. 1 under Section 13 of Hindu Marriage Act was allowed by judgment and decree dated 16.01.2019 and 28.01.2019 passed by Principal Judge, Family Court, Gonda. On 29.05.2019 the respondent no. 2 filed an application under Order 9 Rule 13 C.P.C. read with Section 151 C.P.C. against the judgment and decree dated 16.01.2019 and 28.01.2019 passed by the Principal Judge, Family Court, Gonda in Case No. 1006 of 2017 along with an application under Section 5 of Limitation Act for condoning the delay in filing the application under Order IX Rule 13 C.P.C. and stay application for staying the judgment and decree dated 16.01.2019 and 28.01.2019. The Principal Judge, Family Court by order dated 29.05.2019 has stayed the implementation of the judgment and decree dated 16.01.2019 and 28.01.2019 and issued notices to the petitioner no. 1 fixing 17.07.2019.
5. The petitioner has prayed a writ of prohibition restraining the respondent no. 1 to proceed with proceedings under Order IX Rule 13 C.P.C. initiated by respondent no. 2 on the ground that in view of Section 19 & 20 of the Family Court Act, 1984, the Principal Judge, Family Court has no jurisdiction to entertain a petition under Order IX Rule 13 read with Section 151 of C.P.C. and the orders passed in the aforesaid proceedings are without jurisdiction.
6. Per contra, learned counsel appearing for respondents has submitted that the respondent no. 1 was well within the jurisdiction to entertain a petition under Order IX Rule 13 C.P.C. read with Section 151 C.P.C. and has committed no illegality in entertaining the same.
7. Before considering the rival submission, it would be relevant to quote the relevant provisions of law as well as the nature and scope of writ of prohibition:
"Prohibition is an extraordinary prerogative writ of a preventive nature, its proper function being to prevent courts, other tribunals, officers or persons exercising judicial or
AI
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