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2001 DIGILAW 44 (CHH)

RAM KUMAR DEVANGAN v. CHAMELI BAI DEVANGAN

2001-04-16

R.S.GARG

body2001
JUDGMENT As per Hon'ble Shri R.S. Garg, J. : 1. By this appeal under Section 28 of the Hindu Marriage Act, 1955 the appellant /husband seeks to challenge the correctness, validity, legality and propriety of the judgment/order dated 10-8-1999 passed in Civil Suit . No. 39-A of 1998 by the learned Second Additional District Judge, Mahasamund inter-alia submitting that-the-proceedings recorded by the said Court were incorrect and misleading and dismissal of the suit on the ground that the parties wanted to live together is bad. 2. The facts in nut-shell are that the present appellant/husband filed a petition under Section 13(1)(i)(a) of the Hindu Marriage Act seeking a decree of divorce against the respondent/wife. The wife appeared in the Court and contested the suit. From the records it appears that the trial Court proceeded with the reconciliation proceedings and required the parties to make their submissions before the said Court. On 10-8-1999 as required in the proceedings of the Court below, the appellant and the respondent so also the father of the appellant and father of the respondent appeared before the Court, the parties to the suit expressed their desire to live together, father of respondent Chameli Bai showed his willingness to send his daughter that is the present respondent to the husband but Girdharlal father of the present appellant showed his unwillingness. The trial Court after recording a finding that as each of the party was an adult and was free to give his consent and as both the parties were ready and wiling to live together directed dismissal of the petition. The appellant is aggrieved by the said order. 3. Learned counsel for the appellant submits that he has instructions to say before this Court that appellant Ram Kumar did never submit before the Court below that he was ready and willing to keep the respondent with him as his wife. According to the learned counsel, the Court below did not conduct such proceedings and recorded wrong proceedings on 10-8-1999. He submits that an enquiry into the matter requires to be made, the, order passed by the Court below deserves to be set aside and the matter needs to be sent back to the Court below for its trial in accordance with law. 4. He submits that an enquiry into the matter requires to be made, the, order passed by the Court below deserves to be set aside and the matter needs to be sent back to the Court below for its trial in accordance with law. 4. On the other hand, learned counsel for the respondent, submits that the proceedings recorded by the Court below cannot be challenged in such-1 casual manner. He submits that the proceedings recorded by the Court below are correct. 5. I have heard the parties. 6. The original record shows that the present suit was filed on 20-11-1998. Notices were issued to the other side and the present respondent made her appearance in the Court. On 19-7-1999 the Court directed the parties to remain in attendance for the purposes of conciliation. In accordance with the proceeding dated 19-7-1999 the appellant Ram Kumar appeared with his counsel Shri Jitendra Singh and the respondent Chamelibai was present in person. Father of the appellant Ram Kumar and Father of the respondent Chemeli Bai were also present in the Court. The proceedings recorded on 10-8-1999 have been signed by some Sohanlal, Chameli Bai, Ram Kumar and one more person. From the proceedings dated 10-8-1999 it appears that the parties to the suit expressed their willingness to live together. The Court below recorded that Girdharlal father of appellant Ram Kumar was not ready and willing to keep Chameli Bai with him while father of Chameli Bai was ready and wiling to send the respondent with the present appellant. As the parties had settled their disputes and were ready and willing to live together the Court below dismissed the suit. 7. So far as the correctness or otherwise of the proceedings recorded by a Court is concerned, the same cannot be challenged in a very casual, manner. The proceedings recorded by the Court below or any Court are sacrosanct, those are assumed and presumed to be correct unless it is shown that the proceedings recorded by the said Court are wrong or contrary to what took place in the Court. In case where a party seeks to challenge the correctness of the proceedings, it is expected of such a party to file an affidavit either of the party or of the counsel who appeared in the Court, before the very same Court challenging the correctness and contents of the said proceedings. In case where a party seeks to challenge the correctness of the proceedings, it is expected of such a party to file an affidavit either of the party or of the counsel who appeared in the Court, before the very same Court challenging the correctness and contents of the said proceedings. Filing of such an affidavit, in fact, requires such a Judge to take the said affidavit on record and pass his further orders. It also provides a foundation in favour of such a party to contend before the appellate/revisional Court that the party adversely affected by the wrong proceedings did challenge the correctness of the proceedings before the same Court, therefore, the appellate/revisional Court must make an interference and undo wrong, done to the party by setting aside the adverse order. If such .an affidavit is filed before the lower Court then the said Court is required to pass its orders and make its detailed comments in the very same proceedings. Filing of such an affidavit is not an empty formality but it requires the said Court that the wrong proceedings recorded by the said Court be corrected. The finality attached to the proceedings in relation to the correctness, cannot be very lightly interfered by an appellate/revisional Court. The correctness in relation to the merits of the matter or interpretation of the law is altogether a different thing, therefore, it can be challenged before the higher Court but in a case where the party condemns the conduct of the Judge by saying that the said Judge recorded wrong proceedings then the party must show the courage by filing an affidavit in the very same Court. If such an affidavit is not filed before the said Court then it shall ordinarily be presumed that the proceedings recorded by the said Court are correct. This Court either in its appellate/revisional jurisdiction cannot make an enquiry into the correctness of the proceedings which ultimately would be an enquiry into the conduct of the said Judge. 8. Filing of an affidavit in the appellate Court would not satisfy the requirement of filing of the affidavit before the trial Court. 9. In the present case undisputedly no affidavit was filed before the trial Court. 8. Filing of an affidavit in the appellate Court would not satisfy the requirement of filing of the affidavit before the trial Court. 9. In the present case undisputedly no affidavit was filed before the trial Court. Though learned counsel for the appellant/applicant submits that even today the appellant is ready and willing to file the affidavit before the Court below therefore some time be given to him but in the opinion of this Court the appellant has lost the opportunity and after a lapse of almost about 11/2 year he cannot be allowed to fill up the lacuna. 10. In view of the discussion aforesaid I do not find any reason to interfere. The appeal deserves to and is accordingly dismissed. 11. At this stage, Shri Paranjape submits that the parties are still living separately therefore, the matter deserves a decision on the merits. In the opinion of this Court these proceedings cannot be continued. If the law permits the appellant then he is free to take up fresh proceedings before a competent Court. The appeal is dismissed. No costs. Appeal Dismissed.