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2004 DIGILAW 721 (PNJ)

Gaurav Nagpal v. Sumedha Nagpal

2004-07-19

M.M.KUMAR

body2004
Judgment 1. This order shall dispose of Civil Revision Nos. 1794 of 2004 and 1795 of 2004. These petitions have been filed under Art. 227 of the Constitution and can aptly be described as an illustration of Kilkenny cats fight. In the first petition, the subject-matter of challenge is order dated 26-3-2004 passed by the learned District Judge, Gurgaon dismissing an application of the husband-petitioner for striking off pleadings from the petition filed by the wife-respondent, which are not relatable to the issues as this Court had already ordered certain issues to be deleted by its order dated 8-8-2003 passed in C.M.No. 13104-CII of 2003 in Civil Revision No. 2471 of 2003. In the second petition, challenge is to the order dated 12-2-2004 passed by the learned District Judge, Gurgaon on a prayer made by the wife-respondent for examination of a witness to prove that husband-petitioner has no time to spare for the child. The learned District Judge has disposed of the application by holding that both the parties were entitled to adduce evidence on the point of availability of time for the child. 2. Brief facts of the case necessary for deciding the controversy raised in the instant petitions are that the parties got married on 14-10-1996. A male child, namely Master Vasu Krishan was born to the couple on 15-11-1997. As a result of matrimonial dispute, the parties started living separately, but the child was kept by the husband-petitioner. The wife filed a petition under Article 32 of the Constitution before the Supreme Court for custody of the child which is reported as Sumedha Nagpal V/s. State of Delhi, (2000) 9 SCC 745. The Supreme Court dismissed the aforementioned petition on the ground that it raised disputed question of facts. It was further held that all questions raised before the Supreme Court ought to be decided by an appropriate forum irrespective of the observation made in that judgment. Thereafter, the wife-respondent instituted petition No. 01/01/03 on 31-3-2001 under Section 6 of the Hindu Minority and Guardianship Act, 1956 read with Section 25 of the Guardians and Wards Act, 1890. During the course of proceedings, the parties have moved this Court on one pretext or the other. 3. It would be necessary to make a reference to Civil Revision No. 2471 of 2003 filed by the wife-respondent which came up for consideration before this Court on 24-5-2003. During the course of proceedings, the parties have moved this Court on one pretext or the other. 3. It would be necessary to make a reference to Civil Revision No. 2471 of 2003 filed by the wife-respondent which came up for consideration before this Court on 24-5-2003. The aforementioned petition was allowed by directing the deletion of certain issues. Thereafter, the husband-petitioner filed C.M. No. 13104-CII of 2003 in Civil Revision No. 2471 of 2003, in which prayer was made for recalling of the order dated 24-5-2003. The aforementioned application was also disposed of on 8-8-2003. This Court made it absolutely clear that the petition filed by the wife-respondent is to be tried on the following three issues :- "1. Whether the petitioner being the mother and the natural guardian is entitled for the custody of her minor son ? Opp (Issue No. 2) 2. Whether the petitioner is in a better position to look after and bring up the minor as compared to the respondent as alleged? OPP (Issue No. 4) 3. Relief. (Issue No. 12)" This Court also clarified that the following issues were to be deleted : "1. Whether the child namely Vasu Krishan aged 20 months was snatched forcibly from the possession of the mother illegally on 1-8-1999 ? OPP (Issue No. 1) 2. Whether the petitioner was beaten, bundled in a car and kept in illegal confinement as alleged in para 7 of the petition ? OPP (Issue No. 3) 3. Whether the parents and brother of the petitioner are well off financially ? OPP (Issue No. 5) 4. Whether the respondent through his brother owns couple of companies as alleged ? OPP (Issue No. 6) 5. 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 (Issue No. 7) 6. Whether the respondent and his other family members are involved in immoral and illegal business activities and have no time to look after the child as alleged ? OPP (Issue No. 8) 7. Whether there is no one to look after the child at the house of respondent ? OPP (Issue No. 9) 8. Whether the petition has not been properly verified as alleged and if so to what effect ? OPR (Issue No. 10) 9. OPP (Issue No. 8) 7. Whether there is no one to look after the child at the house of respondent ? OPP (Issue No. 9) 8. Whether the petition has not been properly verified as alleged and if so to what effect ? OPR (Issue No. 10) 9. Whether the petitioner has suppressed and concealed the material facts as alleged and if so to what effect ? OPR (Issue No. 11)" 4. During the course of proceedings before the learned District Judge Gurgaon, the husband-petitioner filed an application with a prayer that after the High Court has ordered the deletion of numerous issues vide its order dated 8-8-2003 in Civil Revision No. 2471 of 2003 and C.M. No. 13104-CCII of 2003, the pleadings set up by the wife-respondent be ordered to be deleted in accordance with the provisions of Order 6, Rule 16 read with Section 151 of the Code. The application was resisted by the wife-respondent. After hearing the parties, the learned District Judge dismissed the application by observing as under :- "12. The position that, thus, emerges from the above discussion is as under : As per law, the parties can adduce evidence which is with the scope of their pleadings. In the present matter, the pleadings were placed on file long before the file came to be transferred to this Court. The controversy with regard to the framing of large number of issues including irrelevant issues, was disposed of by the Hon ble High Court by ordering the deletion of the issues indicated in para 6 of this order. It has been clearly indicated that trial in the matter shall proceed on the issues which stand quoted in para 5 of this order. It was in recognition of the legal exposition that the learned counsel for the parties had made a consensual statement quoted in para 8 of this order. 13. Once that legal exposition is clear, the parties need have no fears about that part of the pleadings which is relatable to the deleted issues. This Court is ordained to dispose of this case as early as possible. Directing the wife to file amended petition would amount to an exercise which would be infructuous and delaying, in character. Once, the pleadings relatable to the deleted issues are not to be taken into consideration, those are as good as not existing on the file. This Court is ordained to dispose of this case as early as possible. Directing the wife to file amended petition would amount to an exercise which would be infructuous and delaying, in character. Once, the pleadings relatable to the deleted issues are not to be taken into consideration, those are as good as not existing on the file. A resort to the proposed exercise for inviting amended pleadings would surely delay the adjudication of the cause which would not be in conformity with the orders of the Hon ble High Court. The parties have to proceed on the clear hypothesis that the pleadings/evidence (in the form of affidavit or otherwise) containing averments regarding deleted issues are not be taken into consideration. The relatability of the pleadings was adjudicated upon by the Hon ble High Court while ordering the deletion of the unnecessary issues. That the parties are cognizant of that aspect is evident from a perusal of their consensual statement (quoted in para No. 8 of this order). There is, thus, no justification for the respondent to insist upon the striking off of the pleadings. The application shall stand disposed of with the above observation." 5. Similarly, during the course of proceedings, the wife-respondent prayed for examining a witness to prove that the husband-petitioner had hardly any time to spare for the child and, therefore, it would not be in the welfare and interest of the child to entrust his upkeep to the husband-petitioner. The plea was controverted by the husband-petitioner and the learned District Judge disposed of the aforementioned plea by holding that both the parties were entitled to adduce evidence on the question of availability of time which they could spare for their child. It was, however, made clear that the evidence to be adduced by the parties was not to touch any part of the issues which stood deleted by the order passed by this Court on 8-8-2003 in C.M. No. 13104-CII of 2003 in Civil Revision No. 2471 of 2003. 6. When the first petition came up for consideration before this Court on 27-4-2004, the petition was admitted and notice regarding stay was issued. The husband-petitioner was granted liberty to mention after completion of service. In the second petition also, same order was passed on 27-4-2004. It was further directed that both these petitions be heard with Civil Revision No. 2078 of 2004. The husband-petitioner was granted liberty to mention after completion of service. In the second petition also, same order was passed on 27-4-2004. It was further directed that both these petitions be heard with Civil Revision No. 2078 of 2004. After admission of the petitions, this Court also stayed the proceedings before the trial Court on 4-5-2004 in both the cases. 7. Ms. Sumedha Nagpal, thereafter, filed C.M. No. 9180-CII of 2004 in Civil Revision No. 1794 of 2004 and C.M. No. 9568-69-CII of 2004 in Civil Revision No. 1795 of 2004, in which prayer was made for vacation of the stay order dated 4-5-2004. When the matter came up for consideration today, the parties consented for hearing of the main petitions along with the applications, in which prayer was made for vacation of stay granted by this Court on 4-5-2004. 8. Mr. Akshay Bhan, learned counsel for the husband petitioner has argued that once this Court has ordered the deletion of issue No. 6 concerning, inter alia, the availability of time to look after the child vide its order dated 8-8-2003, to which reference has already been made in the preceding paras, then it will be just and fair to direct the wife-respondent to strike of vexatious and unnecessary pleadings which may result into confusion. According to the learned counsel, the District Judge has committed grave error by dismissing the application of the husband-petitioner, whereas, he should have ordered the striking off those pleadings which have been rendered unnecessary and were relatable to the deleted issues. He has attacked the order dated 12-2-2004 which is subject-matter of challenge in the second petition. The learned counsel has argued that the District Judge could not have passed an order permitting the parties to adduce evidence in respect of a deleted issue concerning the availability of time for the child with the parties. 9. Ms. Sumedha Nagpal-respondent appearing in person has submitted that the petitions filed by the husband petitioner were not maintainable, because no part of the rights of the parties has been finally determined by the trial Court. According to her, only those orders could be made subject-matter of challenge under Section 115 of the Code which have finally decided the lis between the parties. She has maintained that as the orders dated 26-3-2004 and 12-2-2004 respectively are the interim orders, no petition would be competent. According to her, only those orders could be made subject-matter of challenge under Section 115 of the Code which have finally decided the lis between the parties. She has maintained that as the orders dated 26-3-2004 and 12-2-2004 respectively are the interim orders, no petition would be competent. For this proposition, she has placed reliance on a judgment of the Supreme Court in the case of Shiv Shakti Co-op. Housing Society, Nagpur V/s. M/s. Swaraj Developers, AIR 2003 SC 2434 and also a judgment of the Bombay High Court in Nagorao alias Arun V/s. Narayan N. Yerawar, AIR 2003 Bom 178. Addressing arguments on the merits of the controversy, it has been submitted that this Court in its order dated 8-8-2003 passed in C.M. No. 13104-CII of 2003 in Civil Revision No. 2471 of 2003 (Annexure P-2 with the second petition) has itself observed that the three issues framed by this Court were wide enough to cover the controversy whether the wife-respondent was entitled to the custody of the minor or whether she was in a better position to look after him as compared to the husband-petitioner. Therefore, according to her, any question having bearing on the right of custody of the child claimed by the wife-respondent could surely be gone into as it would be covered by the three issues already framed by this Court. On the basis of the aforementioned observation made by this Court in its order dated 8-8-2003, it has been prayed that these petitions are wholly frivolous, besides the fact that these petitions are not maintainable under Section 115 of the Code or under Article 227 of the Constitution. She has also stressed that in various orders, this Court has observed the contumacious conduct of the husband-petitioner and the delaying tactics adopted by him. 10. After hearing the learned counsel for the parties and perusing the voluminous record attached by them with the petitions and the replies, I am of the considered view that these petitions deserve to be dismissed, because both the orders passed by the trial Court are interlocutory in nature. The order dated 26-3-2004 in the first petition and the order dated 12-2-2004 in the second petition by no stretch of imagination decide any part of the rights of the parties which may warrant the challenge to those orders under Article 227 of the Constitution. The order dated 26-3-2004 in the first petition and the order dated 12-2-2004 in the second petition by no stretch of imagination decide any part of the rights of the parties which may warrant the challenge to those orders under Article 227 of the Constitution. It is a well-settled proposition of law that this Court would interfere under Article 227 only when it is established that the trial Court has been guilty of grave dereliction of duty and flagrant abuse of power resulting in grave injustice to a party to the litigation. The jurisdiction of this Court cannot be invoked as a matter of right. In this regard, reliance could be placed on a judgment of the Supreme Court in the case of Ouseph Mathus V/s. M. Abdul Khadir, (2002) 1 SCC 319 : (AIR 2002 SC 110). It is not permissible for this Court to interfere in every wrong and illegal order. In the case of Virendra Kashinath Ravat V/s. Vinayak N. Joshi, (1999) 1 SCC 47 : (AIR 1999 SC 162), the Supreme Court considered the question as to whether High Court was competent to interfere and reverse a finding of fact merely on the ground of insufficiency of pleadings under Order 6, Rule 5 of the Code. Holding that superintending jurisdiction under Article 227 of the Constitution should not be extended to such like omission. Their Lordships observed as under (at p. 164 of AIR) : "It was the case of the appellants that during the pendency of the suit the first respondent and his sister (second respondent) were unlawfully inducted into possession of the building. So the appellants moved an application for amendment of the plaint and the same was granted by the trial Court. In the plaint so amended para 5-A was inserted, the material portion of which reads thus : "The plaintiffs say that pending the suit the defendants have or any of them has inducted in the suit premises Defendants 1 and 5 unlawfully." Learned single Judge treated the aforesaid pleading as insufficient to make out a case for sub-letting. This was not a point considered by or even raised before the two fact-finding forums. This was not a point considered by or even raised before the two fact-finding forums. Order 6, Rule 5 of the Code of Civil Procedure (for short "the Code") confers powers on the Court to order a party to make a further statement or even a better statement or further and better particulars of any matter already mentioned in the pleading. This is incorporated in the Code to indicate that no suit shall be dismissed merely on the ground that more particulars are not stated in the pleadings. If the contesting respondents, or any of them, had raised objection that the pleading was scanty, perhaps the appellants would have further elaborated it as provided in Rule 5 above. At any rate this should not have been a premise on which interference by the High Court should have been made in exercising a jurisdiction of superintendence under Article 227 of the Constitution." 11 The principles laid down by the Supreme Court in respect of Order 6, Rule 5 would apply equally well to the instant case. I do not see any reason not to follow and apply the same view to the provisions of Order VI, Rule 16 of the Code which deals with striking off unnecessary pleadings. Therefore, I am of the considered view that these petitions are not maintainable. 12. I am further of the view that Order VI, Rule 16 can by no stretch of imagination be considered as mandatory. There is no jurisdictional error or such an error of law which would warrant exercise of jurisdiction under Article 227 of the Constitution. 13. Even on merits, I find considerable force in the argument raised by the wife-respondent that this Court vide its order dated 8-8-2003 has not shut out any evidence which is necessary for proving the fact as to who is in a better position to look after the minor child and the issue No. 1 as framed by this Court is wide enough to include a statement concerning the availability of time with the parties and it would always be a necessary factor which would enter consideration of a Court in cases concerning the custody of a child. Therefore, on merits too, these petitions are liable to be dismissed. 14. For the reasons recorded above, these petitions fail, which are dismissed with costs.