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2003 DIGILAW 806 (PNJ)

Sumedha Nagpal v. Gaurav Nagpal

2003-05-24

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. This order shall dispose of petition under Article 227 of the Constitution of India filed by the petitioner challenging the order dated May 2, 2003 whereby application filed by the petitioner for striking off the issues was partly allowed and issue No. 4 was deleted, 2. The petitioner is mother of a child Vasukrishan born on 15.11.1997. The marriage between the parties was solemnised on 14.10.1996 and even since April 1999 the parties are living separately. According to the petitioner, the custody of the child was wrongfully taken by the respondent on 1.8.1999. when the child was hardly 20 months old. Writ petition filed by the petitioner was dismissed by Delhi High Court. However, in SLP filed against the order of Delhi High Court, the Supreme Court ordered that the question of custody of the child will have to be decided in proceeding arising out of Section 25 of the Guardian and Wards Act read with Section 6 of the Hindu Minority & Guardianship Act and while deciding such a question, welfare of the minor child is of primary consideration. Since allegation and counter allegations have been made against each other narrating circumstances as to how much estrangement took place and how each of them is entitled to the custody of the child and therefore, a proper decision in the matter be taken with respect to the evidence by an appropriate forum. 3. In view of such order of the Honble Supreme Court dated 3.3.2003, the petitioner filed a petition under Section 6 of the Hindu Minority and Guardianship Act read with Section 25 of the Guardian and Wards Act but the respondent in order to delay the disposal of the petition, filed various applications. On 23.4.2002 this Court in Civil Revision No. 869 of 2002 had directed the trial Court to decide the case expeditiously and to decide the interim custody of the child within four months. Learned trial court dismissed the application for interim custody of the child on 2.5.2002. However, in Civil Revision No. 2538 of 2002 against the said order, this court vide order dated 30.4.2002 permitted the petitioner to visit the child in terms of the conditions laid down therein. However, the respondent did not permit the petitioner to meet the child. Petitioner filed a contempt petition No. 1558 of 2002. However, in Civil Revision No. 2538 of 2002 against the said order, this court vide order dated 30.4.2002 permitted the petitioner to visit the child in terms of the conditions laid down therein. However, the respondent did not permit the petitioner to meet the child. Petitioner filed a contempt petition No. 1558 of 2002. In the said contempt petition, the guardian court was directed to decide the main petition within three months and if necessary to conduct the proceedings on day to day basis in pursuance of such directions, the learned trial Court framed the following issues on 11.4 .2003:- 1. Whether the child namely Vasukrishan aged 20 months was snatched forcibly from the possession of the mother illegally on 1.8.1999? OPP 2. Whether the petitioner being the mother and natural guardian is entitled for the custody of her minor son? OPP 3. Whether the petitioner was beaten, bundled in a car and kept in illegal confinement as alleged in para No. 7 of the petition? OPP 4. Whether the petitioner was under depression, could not move around and could not join the court hearing on 14.8.1999 due to alleged breakdown of the car? OPP 5. Whether the petitioner is in a better position to look after and bring up the minor as compared to the respondent as alleged? OPP 6. Whether the parents and brother of the petitioner are well off financially? OPP 7. Whether the respondent through his brother owns couple of companies as alleged? OPP 8. Whether M/s Padmini Polymers is a family concern of the respondent as alleged and there are numerous criminal cases pending against these companies and their Directors as alleged? OPP 9. Whether the respondent and his family members are involved in immoral and illegal business activities and have no time to look after the child as alleged? OPP 10. Whether there is no one to look after the child at the house of the respondent? OPP 11. Whether the petition has not been properly verified as alleged and if so to what effect? OPR 12. Whether the petitioner has suppressed and concealed the material facts as alleged and if so to what effect? OPR 13. Relief. 4. The petitioner has moved an application under Order 14 Rule 5 read with Section 151 CPC and prayed for framing of the following issues:- 1. OPR 12. Whether the petitioner has suppressed and concealed the material facts as alleged and if so to what effect? OPR 13. Relief. 4. The petitioner has moved an application under Order 14 Rule 5 read with Section 151 CPC and prayed for framing of the following issues:- 1. Whether the petitioner is entitled to the custody of the child? OPP 2. Whether the petition is not maintainable in view or preliminary objections and the plea taken up by the respondent in the written statement? OPR 3. Relief. 4. Notice of the said application was issued to the respondent. It was stated that there was no ground whatsoever for deleting the issue framed. However, more issues were required to be re-framed and many of the issues which do arise from the pleadings of the parties have not been framed. After considering the respective stand of the parties, the learned trial court passed an order that except issue No. 4, the remaining issues have been framed correctly as the court is not only to decide the question as to who is entitled to the custody of the minor but also to see the welfare of the minor and to ascertain where the welfare of the minor child lies. 5. Aggrieved against the said order, the petitioner has filed the present petition. Notice of the said petition was issued for 24.5.2003. It was further ordered that the notice be served on the counsel for the respondents before the trial court as well. 6. As per the report, the respondent has refused to accept the notice whereas notice served on the respondents counsel was received with the report that he has been engaged to defend the respondent at the trial court and he has no instructions to appear in any petition filed at Chandigarh. 7. In terms of Order 3 Rule 4 CPC as amended in Punjab, Haryana and Chandigarh with effect from September 31, 1963, the appointment of Advocate is deemed to be in force until determined with the leave of the court. The relevant Clauses read as under: - 4. 7. In terms of Order 3 Rule 4 CPC as amended in Punjab, Haryana and Chandigarh with effect from September 31, 1963, the appointment of Advocate is deemed to be in force until determined with the leave of the court. The relevant Clauses read as under: - 4. Appointment of pleader.- (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power of attorney to make such appointments. 2. Every such appointment shall be filed in Court and shall, for the purposes of Sub-rule (1) be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. Explanation.- For the purpose of this sub-rule, the following shall be deemed to be proceedings in the suit,- a) to (d) xxx xxx xxx xxx (3) to (5) xxx xxx xxyx (3) For the purpose of Sub-rule (2) (i) to (v) xxx xxx xxx xxx (vi) an application for amendment of the decree or order or the record in suit, or an appeal, reference or revision arising from or out of the suit, (vii) to (xi) xxx xxx xxx xxx (xii) any application relating to or incidental to or arising from or out of such appeal or revision or a reference arising from or out of the suit (including an application for leave to appeal under the Letters Patent of the High Court or for leave to appeal to the Supreme Court). (xiii) to (xviii) xxx xxx xxx xxx Provided that where the venue of the suit or the proceedings shift from one Court (subordinate or otherwise) to another, situate at a different station, the pleader filing the appointment referred to in Sub-rule (2) in the former Court shall not be bound to appear, act or plead in the latter Court, unless he flies or he has already filed a memorandum signed by him that he has instructions from his client to appear, act and plead in that Court." (*) As amended by Punjab, Haryana and Chandigarh - 31.9.1968. it is true that the pleader is not bound to appear before the High Court in terms of the proviso to Sub-rule (3). 8. The provisions regarding service of notice on the Advocate representing party in the trial Court has been made as he is in constant touch with his client and, therefore, the counsel can inform his client to make arrangement before the High Court. Still further, as per Order 41 Rule 14. Sub-rule (2), proviso as introduced by Punjab and Haryana in the year 1975, the notice shall be served on Advocate of the party who appeared in the subordinate court where the matter is still pending. The relevant clause reads thus:- 14. Publication and service of notice of day of hearing appeal.- (i) xxx xxx xxx (2) Appellate Court may itself cause notice to be served - Instead of sending the notice to the court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to. (**) Provided that the notice shall be served on the Advocate of the party who appeared in the Subordinate Court where the matter is still pending." (**) (Added by Punjab Govt. Gazette dated 11.4.1975 and Haryana Govt. Gazette dated 25.3,1975) (3) to (5) xxx xxx xxx xxx 9. The service on the respondent is complete when process of this Court has been delivered to his counsel in the trial Court, Since none has appeared on behalf of the respondent, I have no option but to proceed exparte against the respondent. 10. The application under Section 6 of the Hindu Minority and Guardianship Act read with Section 25 of the Guardian and Wards Act has been filed by the petitioner to seek custody of the child. Petitioner is required to prove that the welfare of the child would be in her custody. For proving such welfare the petitioner may have to prove certain facts. However, the incidents which have been alleged by the petitioner in her petition such as beating to the petitioner, illegal confinement or owning of the few companies by the respondent, are wholly irrelevant and not germane to the controversy involved in the petition. Framing of issues in respect of such incidents is wholly unnecessary and in fact divert the parties from the real question involved in the petition. Framing of issues in respect of such incidents is wholly unnecessary and in fact divert the parties from the real question involved in the petition. Framing of such issues will not only delay the disposal of the proceedings but also compel the parties to lead evidence on issues which are not necessary for the decision of the case. The dispute between the parties is regarding custody alone and not relating to their interse conduct. 11. Therefore, I am of the opinion that only issues No. 2, 5 and 12 are the issues which arise for determining the right of the petitioner for the custody of the minor child. Since unnecessary issues have been framed which will only frustrate the cause of justice, therefore, I am of the opinion that the learned trial Court has failed to exercise the jurisdiction vested in it. 12. The order passed by the learned trial Court suffers from patent illegality causing manifest injustice to the petitioner. Consequently, I set aside the order passed by the Id. trial court and strike off issue Nos. 1, 3, 4, 6 to 11. Revision petition is accordingly allowed. Copy of this order be given dasti on payment of usual charges.