KARUNA KANSAL versus HEMANT KANSAL & ANR.

Citation: [2019] 7 S.C.R. 477 · Decided: 09-05-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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KARUNA KANSAL
v
HEMANT KANSAL & ANR.
(Civil Appeal Nos. 4847– 4848 of 2019)
MAY 09, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Code of Civil Procedure, 1908: Or. 43, r. 1(d) – Appeal from
orders – Appeal u/Or. 43 r. 1(d) by first wife-respondent no.2 against
the husband-respondent no.1, against the order passed by the trial
court refusing to condone the delay in filing application by first
wife and rejection to set aside the exparte decree for dissolution of
marriage of respondent no. 1 and 2 – High Court set aside the
exparte decree and issued directions that the respondent no. 1 and
2 to live together as husband and wife – Review by appellant-second
wife – Dismissed by the Division Bench – On appeal held: High
Court, even after taking note of the factum of the marriage of the
appellant with respondent No.1, did not advert to the consequences
thereof and gave directions, which may not be capable of due
performance – High Court passed the order without hearing the
appellant and did not issue any notice of the appeal to her – Thus,
the impugned order wholly without jurisdiction and legally
unsustainable – Matter remanded to the High Court for deciding
the appeal afresh after impleading the appellant as a party
respondent in the appeal before the High Court – Party/Parties –
Necessary parties – Impleadment.
Allowing the appeal, the Court
HELD : 1.1 On perusal of the impugned order, it is found
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. 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,
   [2019] 7 S.C.R. 477
477
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
the impugned order is wholly without jurisdiction and legally
unsustainable. [Para 11, 12] [480-C-D]
1.2 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 under Order
9 Rule 13 CPC and, if so, on what grounds. 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 appellant as a party respondent in the
appeal before the High Court and persuade the parties to settle
the issues. [Paras 13, 14, 16] [480-E-F; H; 481-A]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4847-
4848 of 2019.
From the Judgment and Order  dated  17.10.2014 of the  High
Court of  Madhya Pradesh, Bench at Indore in Review Petition No. 48
of 2014 and order dated 09.08.2011 in M.A. No. 709 of 2005.
A. K. Chitale, Sr. Adv., Sumit Kumar Sharma, Neeraj Srivastava,
Rahul Tripathi, Kartik Chitale, Niraj Sharma, Advs. for the Appellant.
Ms. Pankhuri, Tushar Singh, S. K. Verma,  Advs. for the
Respondents.
The Judgment of the Court was delivered by
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.
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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 A
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