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2011 DIGILAW 475 (MP)

Rajiv Chouksey v. Kirti Chouksey

2011-04-19

K.K.LAHOTI, MOOL CHAND GARG

body2011
JUDGMENT : This appeal is directed against judgment and decree dated 6.2.2006 passed by Ist Additional District Judge, Hoshangabad in Hindu Marriage Case No.27-A/05 by which a suit filed by the appellant under Section 13 of the Hindu Marriage Act, 1955 was dismissed. Facts, in short. of the case are that the marriage between the parties was solemnised on 27.6.1997 at Hoshangabad. From the wedlock, there is a son aged 4 years who is with the respondent. The allegations in the plaint are that respondent is of unsound and by concealing this fact, marriage was solemnised. The respondent remained with the appellant for two days after the marriage but during this period, she had not talked to any person and at second time when she came to in-laws' house, she cut her vains of hands with a razor blade. She was treated by the doctor and thereafter she returned back to her parents house. At second time, she remained for 10 to 15 days with the appellant but her entire conduct was unnatural. Some other incidents are also quoted in the plaint. It is also alleged that a case under Section 498A of IPC was also got registered in which plaintiff remained in jail for few days. On the aforesaid grounds and on the ground of cruelty, this suit was filed seeking a decree of divorce. Respondent contested the suit denying the allegations in the plaint interalia. The trial Court framed 4 issues in the case which read thus:- (1) Whether the respondent is of unsound mind ? (2) Whether the respondent continuously or by certain interval remained of unsound mind and on the basis of which it cannot be expected that plaintiff can reside with respondent Kirti Chouksey? (3) Cost ? (4) Whether the defendant treated the plaintiff with cruelty? In the case, no evidence was produced by the plaintiff and the defendant had also not produced any evidence. The trial Court in absence of evidence, recorded findings against the plaintiff and dismissed the suit. Against the aforesaid judgment and decree, this appeal has been filed. (3) Cost ? (4) Whether the defendant treated the plaintiff with cruelty? In the case, no evidence was produced by the plaintiff and the defendant had also not produced any evidence. The trial Court in absence of evidence, recorded findings against the plaintiff and dismissed the suit. Against the aforesaid judgment and decree, this appeal has been filed. In this appeal, plaintiff has filed an application under Order 41 rule 27 of CPC seeking permission of this Court to produce evidence as the evidence could not be produced before the trial Court on the date when the case was fixed for evidence as proper opportunity to lead evidence was denied to him. The respondent has filed reply of this application denying averments of the application. Before considering the case on merits, it would be appropriate if the factual position in respect of non-extending of opportunity to the plaintiff for adducing evidence may be looked into. In this case on 8.9.2004, additional issue No.4 was framed and thereafter the case was fixed for recording evidence. On 1.11.2004, the case was fixed for recording evidence on which date, the plaintiff sought time to produce evidence. In absence of any opposition by the defendant, the case was adjourned. Thereafter, the case was adjourned on various occasions and on 6.9.2005, the case was fixed for recording evidence but on that date, evidence of the plaintiff was not present and time was sought by the plaintiff for adjournment. The plaintiff also moved an application for summoning Dr. R.N.Sahu. The plaintiff's application was rejected and the case was adjourned for the plaintiff's evidence by allowing last opportunity. On the next date i.e. 4.10.2005, plaintiff evidence was not present, but two applications were filed on the date and the case was adjourned for argument on those applications. On 26.11.2005, an application under Order 6 rule 17 CPC filed by the plaintiff was allowed and the case was adjourned for consequential amendment and for additional issues. Thereafter, the case was listed for recording evidence on 6.2.2006. On the aforesaid date, again an adjournment was sought on behalf of the plaintiff but it was declined by the trial Court on the ground that there was no justified reason for adjournment and the plaintiff's evidence was closed and the judgment was pronounced. Thereafter, the case was listed for recording evidence on 6.2.2006. On the aforesaid date, again an adjournment was sought on behalf of the plaintiff but it was declined by the trial Court on the ground that there was no justified reason for adjournment and the plaintiff's evidence was closed and the judgment was pronounced. From the perusal of the record, it is apparent that spite of various adjournments, plaintiff failed to produce any evidence in support of his allegations in the plaint. The trial Court allowed various opportunities to the plaintiff to produce evidence but plaintiff could not avail such opportunities. In these circumstances, if the trial Court closed the evidence of the plaintiff, no fault is found. The application under Order 41 rule 27 of CPC is based on the premises that no proper opportunity for adducing of evidence was extended to the plaintiff. From the perusal of the aforesaid facts, aforesaid contention appears to be not correct. In view of the aforesaid, application under Order 41 rule 27 of CPC filed by the plaintiff has no merits and is accordingly rejected. We have considered the case on merits and in absence of any evidence in the case, the plaintiff has failed to prove his allegations against the respondent and the trial Court rightly dismissed the suit of the plaintiff in which no error is found. This appeal is found without merits and is dismissed with costs.