PUSPA MONDAL v. NIRMALA MONDAL — 1996 DIGILAW 474 (CAL)

BASUDEVA PANIGRAHI, J. ( 1 ) THIS revision is directed against Order No. 30 dated 29th June, 1994 passed by the District Judge. Howrah on an application under Order 1 Rule 10 (2) of the C. P. C. allowing the opposite party to be imuleaded in the Misc. Case 12/92. ( 2 ) THE revisionist was married to Dr. Dhaneswar Mondal in 1965 according to the Hindu rites and ceremonies. A female child was born to them out of their lawfull wed-lock being Shyamali by name. It is stated by the petitioner that she had been living with her husband Dr. Dhaneswar Mondal at all the material time. On 6th January, 1990, Dr. Dhaneswar Mondal (since deceased), is said to have assaulted the petitioner and forcibly driven her from the matrimonial house and sent her to mother's place. From then on the petitioner continued to reside until December, 1991, when her husband expressed his contrition for his misbehaviour, brought the petitioner back from her mother's place and thereafter both the spouses resumed their conjugal relationship. Subsequently, there was no love lost between them and therefore. Dr. Dhaneswar Mondal without the knowledge of the petitioner had somehow managed to file a matrimonial suit for divorce culminated in an exparte decree granting divorce against the petitioner on or about June 15,1990. The petitioner immediately after having come to know about the ex parte decree filed an application for setting aside the said ex parte decree under Order 9 Rule 13 of the C. P. C. It was registered as Misc. Case No. 12/ 92. But during the pendency of the Misc. Case the husband of the petitioner Dr. Dhaneswar Mondal died. Subsequently when the Misc. Case was listed for disposal before the learned District Judge and after she was examined in the proceedings an application was filed by the opposite party under Order 1 Rule 19 (2) of the C. P. C. for impleading her as the opposite party. She filed an application to be impleaded being the mother of Dr. Mondal. The District Judge was however, inclined to accept the application of the opposite party and allowed her to be impleaded as opposite party/respondent in the Misc. Case. Thus, being aggrieved by such order, this revisional application has been filed by the wife of the deceased who was the defendant in Matrimonial Suit No. 40/90. ( 3 ) MR. Mondal. The District Judge was however, inclined to accept the application of the opposite party and allowed her to be impleaded as opposite party/respondent in the Misc. Case. Thus, being aggrieved by such order, this revisional application has been filed by the wife of the deceased who was the defendant in Matrimonial Suit No. 40/90. ( 3 ) MR. K. S. Roy, the learned Senior Advocate appearing for the petitioner, has argued in support of the application. The main ground of his attack against judgment/order is that even a person may likely be affected by an order to be passed in the application under Order 9 Rule 13 of the C. P. C. , he does not have any right to be impleaded as a party. The suit filed by the petitioner's husband was only for declaration of status. Immediately following the death of the suitor the cause of action dies with the person. Since the cause of action does not survive after the death of the husband, the permission granted by the Court to be impleaded appears to be redundant. ( 4 ) MR. Haradhan Banerjee, the learned Advocate appearing for the opposite party/respondent has-argued with great tenacity that the learned District Judge has passed a very reasonable, rational and appropriate order in giving an opportunity to the respondent to join as a party in the Misc. Case after the death of his client's son. Since, she has a right to the property left by the deceased being class one heir, in her absence no dispute could be effectually and completely adjudicated. The learned Counsel appearing for the petitioner has relied on a decision ,in the case of Narayan Ch. Garai v. Matri Bhandar Pvt. Ltd. In the decision cited supra it has been held that the true justice is to find out whether or not the presence of such a person is necessary to enable the Court to effectually and completely adjudicate upon and settle the questions involved in the suit. If the question at issue between the parties can be worked out without being brought anyone else into the proceeding, the stranger cannot be added as a party. On a careful reading of the decision it is found that there can be no dispute as regards the principle enshimed in the above decision. If the question at issue between the parties can be worked out without being brought anyone else into the proceeding, the stranger cannot be added as a party. On a careful reading of the decision it is found that there can be no dispute as regards the principle enshimed in the above decision. But the facts of the aforementioned case are completely dissimilar with the facts of the present case. In the instant case, the mother being a class one heir in the estate of the petitioner's husband she cannot be said to have no interest in the property. Even the ex parte decree is sustained, then obviously she would represent the estate of the deceased. In the above back-ground, her presence cannot be ignored in the Misc. Case. ( 5 ) MR. Roy, the learned Advocate, placed strong reliance on the decision, II (1992) D. M. C. 377, in the case of Maya Devi v. Ram Bhaj Bansal. The identical question arose in the aforementioned case where after the death of a spouse, can his/her legal representatives be brought on record. In the aforesaid decision, the answer was in the negative. The Delhi High Court held that in an action for divorce legal representative need not be impleaded, the suit would abate in the event of the death of a spouse. Therefore, in the aforementioned case, the ex parte decree was set aside and a suit was held to have abated. In the aforesaid decision, it is further decided that the matrimonial case has become infructuous and the petition under Section 13 filed by the husband was dismissed. ( 6 ) MR. Haradhan Banerjee, the learned Advocate appearing for the opposite party, has rlied on a recent decision, in the case of Vadalasetti Samarajyamma v. Vadalasetti Nagamma. Andhra Pradesh High Court has considered the necessity for bringing the legal representatives on record of the deceased after the death of a spouse in a matrimonial dispute after the decree. It has further considered that the doctrine of "actio parosonalis cum moritur persona" is not applicable. "a decree dissolving a marriage involves termination of status of the wife. If the husband dies subsequent to the passing of the decree and the wife seeks to set aside the decree the question would be whether the wife would be the widow of the deceased or a divorcee. "a decree dissolving a marriage involves termination of status of the wife. If the husband dies subsequent to the passing of the decree and the wife seeks to set aside the decree the question would be whether the wife would be the widow of the deceased or a divorcee. If the wife succeeds in having the decree set aside, she will be a widow of the deceased entitled to the benefit of the Hindu Succession Act and will be entitled to inherit the properties of the husband as a Class I heir. Such a right cannot be claimed and will be lost unless the legal representatives of the" deceased-husband are impleaded. The judgment dissolving the marriage is a judgment in rem and will not merely involve the personal status of the wife, but-would involve her property rights. The principle of "actio personalis cum moritur persona", will not be applicable and the proceedings to set aside an ex parte decree will not abate. Section 21 of the Act makes the provisions of the Civil Procedure Code applicable to the proceedings under the Act. The provisions of Order 22 Rule 4 can be applied to bring on record the legal representatives of the deceased party to the proceedings. " ( 7 ) IN the aforesaid decision, the Court has also referred to the decision of, in the case of Maharani Kusum Mukari v. Smt. Kusum Kumari Jadeja, that the legal representatives can be impleaded even after the death of the other spouse for declaration of marriage relying on the report of the Law Commission relating to amendment of the Act in the year 1976. It was suggested by the Law Commission that there is no general rule that where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken. One of the situation shall emerge where the proceeding would necessarily continue is that if the ex parte decree remains without being set aside, then the interest of the living spouse would seriously be affected. In a recent decision reported in 1996 (7) SCALE page 377, the Supreme Court held :"even though the husband is dead, yet the decree obtained by him is effective in law and determines the status of the appellant. In a recent decision reported in 1996 (7) SCALE page 377, the Supreme Court held :"even though the husband is dead, yet the decree obtained by him is effective in law and determines the status of the appellant. If the appellant says that it is an ex-parte decree and ought to be set aside, her application has to be heard on merits. The decree of divorce determines her status as a wife apart from determining her rights in the properties of her deceased husband. This gives her sufficient locus standi and right to contest the divorce proceedings even after the death of her husband. " ( 8 ) THEREFORE, it leaves no room for doubt that where the wife claims succession to the estate of her deceased husband, she will have a right to continue the proceedings in order to establish her merital status. Therefore, the learned Judge of the Andhra Pradesh High Court relying on the principle of the Law Commission's report and the Supreme Court decision held that in a proceeding for setting a side the ex parte decree under Order 9 Rule 13 of the C. P. C. , the legal representatives of the deceased spouse can join. My judgment gets sufficient strength from the decisions, namely, and 1991 (1) SCC 562. ( 9 ) MR. Roy, the learned Advocate appearing for the petitioner/has, however,,. contended that in this case, the legal representatives of the husband namely, the opposite party did not file any application under Order 22 Rule 4 of the C. P. C. but has preferred to file an application under Order 1 Rule 10 of the C. P. C. and, therefore, such application having not been filed by the mother-in-law, such petition being out of time should have been rejected. I am not in a position to subscribe the contention of Mr. Roy inasmuch as it was the duty of the petitioner to bring the legal representatives of the deceased into record. When she omitted to join the respondent/opposite party by filing an application under Order 22 Rule 4, Immediately after the opposite party haying come to know about the application filed by the petitioner for setting aside the exparte decree, the mother-in-law of the petitioner has filed the aforesaid application under Order 1 Rule 10 of the C. P. C. Therefore, in the above back-drop the application cannot be held to be untenable. To buttress my view a judgment, AIR 1940 Privy Council, 215, Mahomedally Tyebally v. Safiabai and Ors. , can be relied upon :"it is open to the Judge in his discretion under Order 1 Rule 10 to add as a party to the suit the representative of a person against whom the suit has abated for the purpose of giving effect to the rights of the parties. " ( 10 ) THEREFORE, I notice that the application filed by the opposite party cannot be said to be bad in law. The Supreme Court in a decision. "now a code of procedure must be regarded as such. It is'procedure', something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle. " ( 11 ) THE Court has to predominently consider that the procedure as laid down regulating the list should be to facilitate justice and further its ends : not a penal enactment for punishment and penalties. Therefore, in the instant case, if the mother-in-law is not impleaded as an opposite party in the Misc. Case it would affect her right adversely touching upon her property interest in the estate of the deceased. ( 12 ) MR. Therefore, in the instant case, if the mother-in-law is not impleaded as an opposite party in the Misc. Case it would affect her right adversely touching upon her property interest in the estate of the deceased. ( 12 ) MR. Banerjee has contended that once the personal claim for divorce is crystalised into a decree which had added to the estate left behind by the plaintiff, his legal representatives have steped into his shoes. Therefore, naturally the legal representative would be a necessary party to the proceeding after the decree and also to the appeal. ( 13 ) THE situation shall arise as to what would happen after the exparte decree is set aside. In that case, the petitioner succeeds in her application filed under Order 9 Rule 13 of the C. P. C. and consequently the ex parte decree would be set aside, then explanation to Section 306 of the Indian Succession Act will be attracted. As long as the ex parte decree is in existence, the legal representatives of the deceased party are entitled to resist the claim of the petitioner for setting aside such decree. Therefore, the position which emerges from the above discussion is that where there is a far-reaching effect of the findings of the Court, both on personal status and the property rights, it is desirable that the party aggrieved by the decree of the Court must have the opportunity to contest in the dispute. In the above background, the opposite party being a Class I heir of the deceased husband has a right to contest the application for setting aside the ex parte decree. Therefore, I did not find either any factual or legal flaw committed by the learned District Judge by allowing her application. In the result, the revisional application is dismissed but in the circumstances without any order as to cost.