(1.) Heard the Advocate for the parties. The learned advocate for the respondent has sought to raise preliminary objection as regards maintainability of the Appeal under Section 19 of the Family Courts Act, 1984 (hereinafter called "the said Act") on the ground that the impugned order is an interlocutory order.
(2.) Few facts, relevant for the decision revealed from the record, are that the marriage between the parties to the proceedings was sought to be dissolved by way of divorce under the provisions of the Hindu marriage Act, 1955 by filing a divorce petition by the appellant on 24th July, 2000. The proceedings were sought to be contested by the respondent while filing counter claim seeking divorce on the ground of cruelty. The appellant thereupon sought to withdraw her petition for divorce while the counter claim filed by the respondent continued. During the pendency of the proceedings, the respondent took out a Petition seeking relief against the appellant to restrain her from preventing the respondent and other members of his family in having access, use and utilisation of flat no. B-13, situated at first floor, Jessica building, Dr. N. R. Karode Marg, Borivali (West) , Mumbai (hereinafter called as "the suit flat"). The said Petition was contested by the appellant. However, the Family Court, by the impugned order dated 4th October, 2004, allowed the said application and directed the appellant not to prevent the ingress and egress i. e. entry of the members of the respondent's family and to allow the respondent's family to enter, occupy, use and utilise that suit flat. While it was the contention of the respondent that the suit flat was purchased by the mother of the respondent and, therefore, it belonged to her and consequently he and his family members are entitled for the use thereof. While, it is the case of the appellant that the suit flat was purchased out of her money and, therefore, the respondent and his family members cannot claim ingress and egress to the said flat as a matter of right.
(3.) The preliminary objection sought to be raised on behalf of the respondent to the present Appeal is to the effect that the impugned order having been passed during the pendency of the proceedings for divorce pending before the Family Court and as it does not determine the right of the parties to the suit flat finally, it is an interlocutory order within the meaning of the said expression under Section 19 of the said Act and, therefore, no Appeal lies under the said provision of law. Reliance is sought to be placed in the decision of the Full Bench of the Orissa High Court in swarna Prava Tripathy and Anr. Vs. Dibyasingha Tripathy, reported in AIR 1998 orissa 173 and of this Court in Sunil Hansraj gupta Vs. Payal Gupta, reported in 1991 mh. LJ. 737. The learned Advocate for the appellant, on the other hand, has submitted that the impugned order cannot be said to be an interlocutory order as it determines the application finally during the pendency of the proceedings. An order, which disposes even the miscellaneous proceedings during the pendency of the main suit or proceedings, cannot be termed as interlocutory order. In any case, according to the learned Advocate for the appellant, the impugned order gives finality to the issue which was sought to be raised in the said application, at least during the pendency and till the disposal of the proceedings for divorce and, therefore, it cannot be termed as an interlocutory order within the meaning of the expression under section 19 of the said Act.