KARUNA KANSALversusHEMANT KANSAL & ANR.

                          [2019] 7 S.C.R. 477                            477


                        KARUNA KANSAL                                    A
                                  v
                   HEMANT KANSAL & ANR.
               (Civil Appeal Nos. 4847– 4848 of 2019)
                           MAY 09, 2019                                  B
               [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   C
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
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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            E
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 –
                                                                         F
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         G
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,
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                                 477
478            SUPREME COURT REPORTS                          [2019] 7 S.C.R.


A     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
B     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
C     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.
D
            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,
E     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.
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             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
G     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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       KARUNA KANSAL v. HEMANT KANSAL & ANR.                                 479
             [ABHAY MANOHAR SAPRE, J.]

      4. The dispute, which is the subject matter of these appeals, is       A
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)       B
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.
       6. By order dated 10.12.2004, the ADJ had declined to condone         C
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. 09-A/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      D
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       E
before the High Court. However, when respondent No.1 stated 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.09-A 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          F
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.                                       G
      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.

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480             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A            9. Having heard the learned counsel for the parties and on perusal
      of the record of the case, we are 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.
B            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
C     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
D     her and yet giving 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
E     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.
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            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 appellant
      herein as a party respondent in the appeal before the High Court.
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            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
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         KARUNA KANSAL v. HEMANT KANSAL & ANR.                                     481
               [ABHAY MANOHAR SAPRE, J.]

parties to settle the issues, if possible, on some mutually acceptable terms       A
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 influenced              B
by any observations made in the impugned order and in this order.


Nidhi Jain                                                       Appeal allowed.


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