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2001 DIGILAW 1200 (RAJ)

Prabha Sharma v. Judge Family Court (No. 1)

2001-08-03

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

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Judgment Shiv Kumar Sharma, J.-An ex-parte decree for divorce was granted in favour of the respondent husband on November 7, 1990 by the Family Court No. 5, Bandra, Mumbai. The appellant wife instituted a suit for setting aside the said decree under Section 34 of the Specific Relief Act, 1963 in the Family Court No. 1, Jaipur with the averments that the respondent husband obtained the said decree by reason of fraud and deception practised on her. Learned Family Court No. 1, Jaipur vide its order dated October 22, 1999 returned the suit to the appellant wife for its presentation in the competent Court on the ground that no cause of action arose to the appellant wife within the jurisdiction at Jaipur. Against this order of the learned Family Court No. 1, Jaipur that the action for filing the instant miscellaneous appeal has been resorted to by the appellant wife. 2. Asper the averments made in the plaint by the appellant, she was married to the respondent on July 4, 1979 at Jaipur. After marriage the appellant and respondent lived together and out of wedlock two sons were born. The behaviour of the respondent with the appellant though gradually became cruel yet she used to perform her matrimonial duties. In the month of October, 1989 when the appellant had come to Jaipur to her parents’ house, she received a notice along with petition seeking dissolution of marriage filed by the respondent from the Family Court No. 5, Bandra, Mumbai (for short the ‘Mumbai Court’). She went to Mumbai and on November 8, 1989 submitted three petitions in the Mumbai Court for inspection of documents, expenses pendent lite and for guardianship of her two sons. On a report of the appellant the Bombay Police also started investigation against the respondent. The case at Mumbai Court was adjourned to January 25, 1990. Looking to the fact that the Bombay Police became active the respondent surrendered himself before the appellant. He took her to his house and assured to behave with her in future properly. The appellant believed him and started living with him. Thereafter the respondent persuaded the appellant to go to Jaipur to look after his family fabrication workshop and help him. He also promised her to open a new workshop in her house at Jaipur. He took her to his house and assured to behave with her in future properly. The appellant believed him and started living with him. Thereafter the respondent persuaded the appellant to go to Jaipur to look after his family fabrication workshop and help him. He also promised her to open a new workshop in her house at Jaipur. The appellant left for Jaipur on January 8, 1990 but as an abundant caution she intimated this fact to the Mumbai Police. After some time the respondent also came to Jaipur and told the appellant that he had no intention to divorce her. The divorce petition was submitted by him only to save himself from income tax troubles. He did assure her not to press the divorce petition further and asked her not to attend the Mumbai Court on the next dates. The behaviour of respondent in those days was so cordial that the appellant was hypnotized and the respondent got her signatures on the blank papers. The appellant went to the Mumbai Court last time on January 25, 1990. The appellant and the respondent thereafter lived together as husband and wife at Mumbai and Jaipur. In 1995, the appellant was sent to Jaipur and she undertook training in Detergent Chemical Course. On October 28, 1998 when the appellant suddenly checked the briefcase of the respondent at Jaipur she found a copy of the ex-parte decree of dissolution of their marriage. Thereafter she filed a suit under Section 34 of the Specific Relief Act in the Family Court No. 1, Jaipur for setting aside the said decree. 3. We have heard the rival subnniissions and carefully scanned the material on record. 4. A close look at the impugned order demonstrates that the learned Family Court, Jaipur analysed in detail the averments of the plaint and finally observed that no fraud was committed by the respondent with the appellant. The suit was not found, maintainable in Jaipur Court. We cannot approve the act of the learned Family Court in dissecting the averments of the plaint and to arrive at a conclusion that the averments were false. Object of Order 7 Rule 1, C.P.C. and function of the particulars required thereunder is to present a full picture with sufficient details of the cause of action and the jurisdiction, so as to make the opposite party understand the case. Object of Order 7 Rule 1, C.P.C. and function of the particulars required thereunder is to present a full picture with sufficient details of the cause of action and the jurisdiction, so as to make the opposite party understand the case. All the facts showing that the Court has jurisdiction should be set out in the plaint and the Court has to take the plaint allegations at their face value. 5. Four courses are open to a defendant against whom ex-parte decree is passed as per the Full Bench decision of the Madhya Pradesh High Court indicated in Nathi Prasad v. Singhai Kapurchand, AIR 1976 MP 136 . It was held in para 20 thus: ".......It is settled and undisputed law that when an ex-parte decree is passed the defendant has four courses open to him:- .(i) to apply under Order 9 Rule 13, C.P.C. to set aside the ex-parte. decree; or .(ii) to appeal from the ex-parte decree; or (iii) to apply for review; or (iv) to institute a suit on the ground of fraud.” 6. It is also well settled that in a suit to set aside the ex-parte decree on the ground of fraud, the onus lies- on the party suing to show that there was some fraud in relation to the proceedings of the Court. Fraud vitiates the most solemn transactions. A suit will, therefore, lie to set aside an ex-parte decree on the ground of fraud. If the plaintiff suppresses the fact of compromise effected and obtains an ex-parte decree, the decree can be set aside by a separate suit. 7. That takes us to the question whether the Family Court at Jaipur has jurisdiction to set aside the ex-parte decree passed by the Mumbai Court? Sub-section (c) of Section 20, C.P.C. provides that every suit shall be instituted in a Court within the local limits of whose jurisdiction, the cause of action wholly or in part arises. In Raj Kumar Singh v. Raj Keswar Koeri & Ors., AIR 1917 Patna 598, it was observed that a suit to set aside a decree on the ground of fraud can be brought where the defendant actually and voluntarily resides or where the cause -of action wholly or in part arises. In Raj Kumar Singh v. Raj Keswar Koeri & Ors., AIR 1917 Patna 598, it was observed that a suit to set aside a decree on the ground of fraud can be brought where the defendant actually and voluntarily resides or where the cause -of action wholly or in part arises. In Dukan Nand Lal Krishnen Chander v. Abdul Hafiz, AIR 1960 J&K 76 , it was held that where a part of the fraud is committed within the jurisdiction of a Court, that Court will have jurisdiction to entertain the suit. Similar view was expressed in A. Natrajan v. Saraswathy Amal, AIR 1958 Madras 516. Coming to the facts averred in the plaint by the appellant it may be noticed that the ex-parte decree was obtained by the respondent by reason of fraud and deception practised on her at Jaipur and on that basis she instituted suit for setting aside the decree in the Family Court No. 1, Jaipur. Taking the facts averred in the plaint at their face value we are prima facie satisfied that the Family Court No. 1, Jaipur has jurisdiction to entertain the suit. 8. In view of what we have discussed hereinabove we set aside the impugned order dated October 22, 1999 of the learned Family Court No. 1, Jaipur and remit the case to the said Court with the direction to entertain and register it. The parties are directed to appear in the Family Court No. 1, Jaipur on August 20, 2001 for seeking further instructions in the matter. However, we grant liberty to the respondent to raise objection even in regard to jurisdiction in the written statement, in that event the Family Court may decide the issue of jurisdiction as a preliminary issue afresh and our observations shall not affect the adjudication of the issue ofjurisdiction so framed. 9. The miscellaneous appeal stands allowed as indicated above.