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2011 DIGILAW 960 (DEL)

Neeta Mehra v. Sanjay Mehra

2011-11-08

KAILASH GAMBHIR

body2011
JUDGMENT KAILASH GAMBHIR, J. 1. By this revision petition filed under Section 115 read with Section 151 CPC, the petitioner seeks to challenge the order dated 30th September, 2009 whereby the learned Trial Court directed restoration of the divorce petition filed by the respondent on the application moved by him under Section 151 CPC. 2. Assailing the said order, learned counsel appearing for the petitioner submits that the learned Trial Court committed jurisdictional error by invoking the power under Section 151 CPC to restore the divorce petition filed by the respondent when only remedy available to the respondent was to file an appeal in terms of order 43 Rule 1 (c) read with Section 151 CPC. The contention of the counsel for the petitioner is that the divorce petition filed by the respondent was dismissed in default on account of the non-appearance of the respondent and his Advocate on 29.10.2010 and thereafter to seek restoration of the petition the respondent had moved an application under Order 9 Rule 4 CPC, which too was dismissed for non-prosecution by the learned Trial Court vide order dated 16.5.2011, but the said order was illegally recalled by the learned Trial Court on the application moved by the respondent under Order 151 CPC. The counsel also contends that the order dated 16.5.2011 passed by the learned Trial Court in fact was an order on merits and the same could not have been recalled by the learned Trial Court in exercise of its inherent power under Section 151 CPC. Counsel also submits that even the limitation period to challenge the said order dated 16.5.2011 has expired and, therefore, without seeking remedy of filing an appeal, which again could be filed after seeking condonation of delay in filing such an appeal. The counsel thus submits that the order passed by the learned Trial Court under Section 151 CPC for recalling the order dated 16.5.2011 is patently illegal and perverse. Counsel also submits that valuable right accrued in favour of the petitioner with the dismissal of the application of the respondent under Order 9 Rule 4 CPC, which right of the petitioner could not have been defeated by the learned Trial Court by exercising inherent powers of the Court that too in the face of specific legal remedy available under law. In support of his arguments counsel for the petitioner placed reliance on the judgment of the Apex Court in Manohar Lal Chopra– vs-Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 with special emphasis on para 21 of the same. 3. I have heard learned counsel for the petitioner at considerable length and given my thoughtful consideration to the arguments advanced by him. 4. The divorce petition filed by the respondent under Section 13(1)(ia) of the Hindu Marriage Act was dismissed by the learned Matrimonial Court, not on merits but in default as nobody had caused appearance for the respondent on 29.10.2010 when the said petition was taken up by the Court. To seek restoration of the said petition the respondent/petitioner had moved an application under Order 9 Rule 4 CPC and the said application moved by the respondent was opposed by the petitioner/respondent primarily on two grounds; firstly that the same was filed invoking a wrong provision of law and secondly on account of the failure of the respondent/petitioner in not making a payment of Rs. 5,000/-towards the maintenance of the child. On the first objection raised by the petitioner/respondent, the learned Court observed and rightly so that the application cannot be rejected merely because it was filed invoking a wrong provision of law. So far as the second objection raised by the petitioner is concerned, the Court directed that the restoration application moved by the respondent/petitioner would be considered only when the respondent/petitioner complies with the directions with regard to the payment of the maintenance amount for which he sought four weeks time for compliance. The matter was adjourned by the Court for 2nd May, 2011 when again the learned Trial Court reiterated its earlier direction to make the payment towards the maintenance amount for considering his restoration application and the matter was adjourned by the learned Trial Court for 16th May, 2011. On 16th May, 2011 the said application moved by the respondent/petitioner was dismissed for non-prosecution because of non-compliance of the said direction by the respondent/petitioner to liquidate his liability towards the arrears of maintenance amount. It is thereafter that the respondent/petitioner had moved an application under Section 151 CPC to seek recalling the order dated 16th May, 2011 and then to consider his application moved by him under Order 9 Rule 4 CPC to seek restoration of his petition. 5. It is thereafter that the respondent/petitioner had moved an application under Section 151 CPC to seek recalling the order dated 16th May, 2011 and then to consider his application moved by him under Order 9 Rule 4 CPC to seek restoration of his petition. 5. It is a settled legal position that the power under Section 151 CPC is an addition to and complimentary to the powers expressly conferred under the Code and can be exercised by the Courts to make a suitable order to prevent the abuse of the process of Court and can be exercised when there is no specific provision dealing with the grant of relief as sought. It is also well settled that nothing can limit or affect the inherent powers of the Court to meet the ends of justice as power exercised by the Court under Section 151 CPC is exdebito justitiae; to do real and substantial justice for the administration of which alone the Court exists or to prevent abuse of the process of the Court. The inherent powers of the Court are with respect to the procedure followed by the Court in deciding the cause before it and are conferred under the Code, but certainly the Courts will not exercise inherent powers when such power could clearly conflict with the powers expressly or by necessary implication conferred on the Courts by the other provisions of the Code. In the case at hand, the learned Matrimonial Court did not dismiss the application moved by the respondent/petitioner under Order 9 Rule 4 CPC on merits, but only on the ground that the respondent/petitioner had failed to comply the direction given by the Court to pay the arrears of the maintenance amount as a condition precedent to consider his restoration application. The said order of the learned Matrimonial Court giving the aforesaid direction to the respondent/petitioner, to first pay the amount of maintenance and then to consider his application for restoration was certainly exercised by the said Court invoking its inherent powers as otherwise the Court was well within its jurisdiction to have first decided the said application of the respondent/petitioner looking into the sufficiency of reasons given by the respondent for his non-appearance on 29.10.2010 when the said divorce petition filed by him was dismissed in default. It is a well accepted principle of practice that with a view to do complete justice between the parties, the Courts exercise their inherent powers and exercise of such powers by the Courts may not specifically fall under any specific provisions of the Code. The direction given by the Matrimonial Court to the respondent/petitioner to first pay the arrears of the maintenance amount to consider his restoration application was in exercise of such power by the Matrimonial Court, therefore, it cannot be said that the learned Trial Court had in fact dismissed the application of the respondent moved by him although wrongly labeled under Order 9 rule 4 CPC on its merits, but in fact the said application was dismissed by the learned Trial Court for non-prosecution. In the application moved by the respondent under Section 151 CPC, recalling of the order dated 16.5.2011 was sought by him on the ground that already he had paid an amount of Rs. 90,000/-towards the arrears of the maintenance amount and for the balance amount of Rs. 30,000/-he undertook to pay the same within a period of three months. With the said payment of the maintenance amount and the undertaking of the respondent to pay further amount of maintenance, the learned Trial Court found the conduct of the respondent justifiable for recalling the order dated 16.5.2011 and for restoring his application under Order 9 Rule 9 CPC. Learned Trial Court in para 7 of the impugned order clearly observed that the application of the respondent moved by him under Order 9 Rule 9 was rejected only for want of payment of the maintenance amount and since the respondent could be said to have paid the said amount with the said undertaking there was no reason left for the Court to deny the prayer of the respondent to seek restoration of his divorce petition. This Court does not find any illegality or perversity in the impugned order passed by the matrimonial Court invoking its inherent power under Section 151 CPC and this Court also does not find that any jurisdictional error was committed by the said Court in allowing the application of the respondent moved by him under Order 9 Rule 9 CPC (wrongly labeled under Order 9 Rule 4 CPC). This Court has taken a consistent view that the matrimonial disputes needs to be adjudicated on its merits and the substantive rights of the parties cannot be defeated by adopting a hypertechnical approach that too on the basis of procedural niceties. 6. It cannot be forgotten that procedural laws are handmaids of justice and cannot come in the way of advancing the cause of justice. As is held by the Apex Court time and again procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice and hence cannot stop the Court to give relief on merits to the parties. 7. The judgment cited by the petitioner also reiterates the settled legal position with regard to powers under Section 151 of the Code and would not thus help the petitioner to persuade this Court otherwise. 8. In the light of the above, there is no merit in the present petition and the same is hereby dismissed.