JUDGMENT
Rajendra Saxena, J.
1. This appeal filed under Section 19 of the Family Court Act, 1984 (hereinafter referred to the Act) has been directed against the order of the learned Judge, Family Court, Udaipur dated 23.2.1993, whereby appellants application filed under Order 16 Rule 10 & 12 C.P.C. for issuing summons or bailable warrant for enforcement of attendance on witness Babu Lal Lohia resident of Jodhpur was dismissed and another application filed under Order 26 Rule 4 C.P.C. for issuing commission for examining the statement of minor Arjuh @ Komal was rejected.
2. Succinctly stated the relevant facts are that Smt. Manju Devi was married to late Shri Shyam Sunder Bhattad, the son and brother of appellants No. s 1 & 2 Nath Mal and Satya Narain respectively and the brother-in-law of appellant No. 3 Smt. Kamla. Out of wed lock of Shyam sunder and Smt. Manju a son namely Arjun @ Komal was born on 16.3.1989. Unfortunately Shyam Sunder died in an accident on 11.2.1990. It is alleged that after the death of Shyam Sunder Smt. Manju Stayed with the minor son at appellants’ house in Jodhpur and thereafter she went away to her parents house at Udaipur allegedly to contract a second marriage. It appears that on 7.2.1992, Smt. Manju lodged a First Information Report at Police Station, Suraj Pol, Udaipur against the appellants No. s 2 & 3 alleging that they kidnapped her minor son Arjun from her custody from Udaipur and took over him to Jodhpur. A case was registered and after investigation, it is alleged, that a Final Report was given on 30.3.1992. Thereafter Smt. Manju filed an application on 8.6.1992 under Section 25 of the Guardianship and Wards Act, 1890 for the custody of her minor son before the learned Judge, Family Court, Udaipur. She also prayed for Arjun’s ad-interim custody in her favour. This application was holly contested by the appellants. The learned trial Judge framed two issues on 2.9.1992. The first issue pertained to the controversy as to whether the respondent was entitled to get back the custody of her minor son and whether it would be in the welfare and interest of the minor? The second issue related to the objection raised by the appellants about the jurisdiction of the Family Court to hear that application. Since the learned Judge thought that it was necessary to expeditiously dispose the said application, he did not pass any order on respondent’s application for the interim custody of the minor. The learned Judge fixed 22.9.1992 for recording the evidence of the parties. On 22.9.1992, the appellants filed an application for the production of the case diary from the police station pertaining the F.I.R. lodged by the respondent. That application was rejected. Immediately thereafter the appellants filed another application for granting time to file a revision against the said order, which was also rejected. Thereupon the appellants filed yet another application seeking time for filing transfer application in the High Court, which was also rejected. On that day the respondent examined her four witnesses. However, the appellants did not cross examine them. It appears that the appellants filed a transfer petition in this Court, which was rejected. The appellants also filed civil Misc. Appeal No. 377/92 in this Court, wherein it was ordered that if the appellants file an application before the Family Court then they be allowed to cross-examine the witnesses of the respondent. It was further ordered that the appellants shall produce the minor Komal in the Family Court. On 8.1.1993, the application filed by the appellants for cross-examining the respondent’s witnesses was allowed on a cost of Rs. 251/-. However, the appellants did not produce the minor in the court and informed the court vide their application dated 12.1.1993 that minor Arjun was not prepared to come to Udaipur and that respondent Smt. Manju could meet him at Jodhpur. The appellants crossed-examined respondent’s witnesses on 12.1.1993 and 1.2.1993. They also examined their three witnesses on 1.2.1993 and 2.2.1993. At the request of the appellants summons for their two witnesses namely Babu lal and Prakash Jain, who are residents of Jodhpur, were issued and given dasti. On the next date i.e. on 18.2.1993, the appellants informed that the summon of those witnesses were got served on them through the court and that those summons will be returned by the Jodhpur Court through post. They also informed that Babu Lal was feeling indisposed and as such his summon be again issued. This request was turned down by the Family Court and appellants were directed to produce their witnesses themselves on the next date. On 23.2.1993, appellants’ witness Kashi Ram was examined. On that day appellants filed an application and submitted that their witness Babu Lal Lohia resident of Jodhpur was suffering from fever and he may either be summoned or a warrant be issued against him. The learned Judge, Family Court rejected that application on the ground that Jodhpur was situated at a distance of more than 300 kms. from Udaipur and that the witness was residing beyond the territorial jurisdiction of the court, therefore, it was not proper to issue warrant for his arrest and this is why appellants were directed to produce their witnesses residing at Jodhpur themselves. It was also observed that many opportunities were already granted to the appellants to adduce their evidence and that it was not in the interest of justice to give further opportunity to them and fixed the case for final arguments. On 23.2.1993, appellants also filed another application to the effect that it will be conducive to examine the minor, who is not in a mental condition to come to Udaipur and prayed that his statement may be recorded before any Judge in Jodhpur or he may be examined by appointing a commission. This application was rejected on the ground that the statements of the minor are not to be recorded, on the other hand the Family Court has to ascertain his sentiments, mental condition, capability of thinking and understanding the things, his nearness of kin, his inclination towards other persons and many other psychological factors and as such it will not be proper and justified to order for the examination of the said minor by any Presiding Officer of any other court or by a commissioner. The learned Judge further ordered the appellants to produce the minor son Komal in his court on the next date. Hence aggrieved by the impugned order the appellants have filed this appeal.
3. We have heard the learned Counsel for the parties at length and carefully perused the relevant record in extenso.
4. Shri Dinesh Maheshwari has raised a preliminary objection that the impugned orders are interlocutory orders, this appeal is not maintainable. For this he has relied on case of Major Raja P. Singh v. Smt. Surendra Kumari 1990(2) R.L.R. 246, wherein it has been held that an order of a family court allowing or rejecting amendment in the pleadings does not amount to “a case decided” and that such an order is an inter locutory order against which no appeal lies under Section 19 of the Act.
5. On the other hand Shri Jasmatiya has asserted that by the impugned orders the learned Judge Family Court has turned down appellants’ request for summoning or issuing bailable warrant against their witness Babulal and also refused to order for examining the minor either by a Presiding Officer of a court situated in Jodhpur or through a commissioner under Order 26 Rule 4 C.P.C. and closed appellants’ evidence, which has adversely affected their rights and as such impugned orders are final orders and hot inter locutory orders, and therefore, this appeal is legally maintainable.
6. We have given our throughtful consideration on the rival submissions. Section 19(1) of the Act lays down that save as provided in Sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 and in the Code of Criminal Procedure, 1973, or in any other law, an appeal shall lie from every judgment or order, not being an inter locutory order, of a Family Court to the High Court both on facts and on law.
7. In V.C. Shukla v. State , their lordships of the Supreme Court have specifically interpreted the expression ‘inter locutory order’ and have held as under:
Para 23:-“Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Code or any other statute. That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in Section 11(1)of the Act.”
Para 95:-“Ordinarily speaking, the expression “interlocutory” in legal parlance is understood in contra- distinction to what is styled as final. In the course of a judicial proceeding before a court, for judicially determining the main dispute brought to the court for its resolution, a number of situations arise, when that court goes on disposing of ancillary disputes raised by parties to the proceeding by making order and unless the order finally disposes of a proceeding in a court all such orders during the course of a trial would be broadly designated ‘interlocutory’ orders. Such interlocutory are steps, taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding. They regulate the procedure only and do not effect any right or liability of the parties (See Central Bank of India v. Gokal Chand . Every such interlocutory order may for the time being, dispose of a particular point of controversy raised in the proceeding, yet nonetheless the order would be interlocutory order unless by such an order the controversy between the parties is finally disposed of.
8. Keeping in view the law laid down by the Apex Court in this regard, an order refusing to issue warrant for ensuring attendance of a witness, who is residing outside the territorial jurisdiction of the court does not amount to the final adjudication of the proceedings, it also does not affect any right or liability of the appellants because ample opportunity was given to them to produce their witness. By this impugned order me controversy between the parties is also not finally disposed of. Therefore, such an order can not be termed as a ‘case decided’ or a ‘final order’. On the other hand, it is apparently an inter locutory order which does not amount to final adjudication of the proceedings and against which an appeal under Section 19 of the Act is barred.
9. Similarly the order rejecting appellants’ application under Order 26 Rule 4 C.P.C. for examining the minor is also an interlocutory order, because the impugned order does neither deal with the final rights of the parties nor decides the real controversy between the parties namely the custody of the child in question. It merely decides that it is not all necessary to allow examination of the minor by some other court or by a commission under the provisions of Order 26 C.P.C. Therefore, the impugned order simply decides a matter essential for the progress of the proceedings under Section 25 of the Act of 1890. in which does not terminate the proceedings or finally decides the rights of the parties. Hence, in our considered opinion the impugned order rejecting appellants’ application under Order 26, Rule 4 C.P.C. is nothing but an intermediate or interlocutory order against which no appeal lies under Section 19 of the Act.
10. Besides this in the proceedings under the Provisions of Guardians and Wards Act, 1890, the court acts on equity. The said Act invests the court with a large discretion to exercise for the protection and welfare of the minor. After making necessary inquiry, the court has to ascertain the interest and welfare of the minor for handing over its custody. To ascertain what is the welfare of the child, the court is not bound to make a protracted enquiry. A duty for conducting inquiry under Section 25 of the Act of 1890 has been cast upon the court, which can not be delegated. Therefore there was no question of examining the minor on commission or any other court.
11. Under Section 17(2) of the Act of 1890, in considering what will be helpful for the welfare of the minor, the court is required to have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor. Therefore, the dominant and paramount question to be decided by the court is what will be conductive in the interest and welfare of the minor. The moral, religious and physical welfare and ties of affection as so the opinion of the child, if the child is capable of forming intelligent opinion, have to be taken into consideration by the court. Therefore, in order to ascertain the wishes of the minor and deciding about his interest and welfare as also for determining various relevant factors the Family Court can not delegate its duties in this regard to any other Presiding Officer of the court or order for examine the minor by issuing a commission under Order 26 Rule 4 C.P.C.
12. This appeal is, therefore, dismissed as not maintainable with costs of Rupees five hundred only. The learned Judge, Family Court, Udaipur is directed to expedite the disposal of this case, which has already been delayed. The parties shall appear before the lower court on 1st March, 1994.