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2012 DIGILAW 222 (UTT)

Archana Garg v. Vineet Kumar Jain

2012-05-11

V.K.Bist

body2012
JUDGMENT: V.K. Bist, J. Present petition has been filed by the petitioner for the following reliefs: “(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.11.2011 passed by the Principal Judge, Family Court, Dehradun in Suit No.238 of 2011 “Vineet Kumar Jain Vs. Archana Garg” pending before the Court of Principal Judge, Family Court, Dehradun directing the petitioner to serve the summons on witnesses by dasti process. (b) Issue a writ, order or direction, directing to allow application No.161 C of the petitioner and Principal Judge, Family Court, Dehradun be directed to summon witnesses Sri S.K. Nandal & Smt. Kirti Jain through Court, in Suit No.238 of 2008 “Vineet Kumar Jain Vs. Archana Garg”. (c) Issue any other order or direction, which this Hon’ble High Court may deem fit and proper in the facts and circumstances of the case. (d) To award cost of the petition to the petitioner.” 2. Brief facts of the case, as narrated in the writ petition, are that on 21.05.2008 respondent filed petition under Section 13 & 10 of the Hindu Marriage Act before the Principal Judge, Family Court, Dehradun, which was registered as Original Suit No.238 of 2008 “Vineet Kumar Jain Vs. Smt. Archana Garg”. Petitioner appeared before the Family Court, Dehradun and filed her written statement and contended that petition filed by the respondent was misuse of process of law. On 06.01.2011, issues were framed in the aforesaid suit and thereafter, case was fixed for respondent’s evidence. Thereafter, on 04.03.2011 additional issues were framed in the suit. 09.05.2011 was the first date fixed for petitioner’s evidence. List of witness was submitted. It is alleged that two witnesses, namely, Sri S.K. Nandal & Smt. Kirti Jain, apart from other witnesses, are not under the control of the petitioner. Shri S.K. Nandal is working in the same office in which the respondent is working and Smt. Kirti Jain is the sister of the respondent. On 28.03.2011, when the respondent was being cross examined before the Court below, he leveled specific allegation against the petitioner that petitioner-Smt. Archana Jain was having illicit relationship with Shri S.K. Nandal, who is colleague of the respondent. Respondent stated that the petitioner used to misbehave with his sister-Smt. Kirti Jain and she used to abuse his sister. On 28.03.2011, when the respondent was being cross examined before the Court below, he leveled specific allegation against the petitioner that petitioner-Smt. Archana Jain was having illicit relationship with Shri S.K. Nandal, who is colleague of the respondent. Respondent stated that the petitioner used to misbehave with his sister-Smt. Kirti Jain and she used to abuse his sister. It is alleged that both the above-referred witnesses, namely, Shri S.K Nandal and Smt. Kirti Jain are crucial witnesses and their evidence would have great impact on the matter. Shri S.K. Nandal is presently posted at Assam and Smt. Kirti Jain is residing at Delhi and request was made to issue summons upon aforesaid witnesses at their respective places through Court. On 16.11.2011, the learned Presiding Officer, Principal Judge, Family Court, Dehradun, while fixing the matter for 24.11.2011, ordered the petitioner to serve the summons on witnesses by dasti process. Thereafter, petitioner filed application no.161 C before the Court below praying therein that the summons may be issued to the witnesses, through Court. The purpose for which the witnesses are sought to be summoned was also disclosed in that application and it was also stated in the application that the witnesses are under the control of respondent. On 31.03.2011, similar prayer was made by the respondent at the time of his evidence and the same Court, after recording a finding that since the witnesses are not under the control of respondent, the same be summoned, through Court. The respondent did not file any objections against application no.161 C and endorsed his contention/ objection on the application itself. On 21.11.2011, the Principal Judge, Family Court, Dehradun dismissed the application no.161 C. Aggrieved by the order dated 21.11.2011 passed by the Principal Judge, Family Court, Dehradun in Suit No.238 of 2011 “Vineet Kumar Jain Vs. Archana Garg”, present writ petition has been filed by the petitioner. 3. Shri Neeraj Garg, learned counsel for the petitioner submitted that the order impugned is totally illegal and without jurisdiction and the Principal Judge, Family Court, Dehradun has exceeded his jurisdiction which was not vested in him under the law. He submitted that while passing the order impugned, the Principal Judge, Family Court, Dehradun completely violated the provisions of Order 16 Rule 1 of C.P.C., which are fully applicable to the proceedings of Family Court in view of Section 10 of the Family Court Act. He submitted that while passing the order impugned, the Principal Judge, Family Court, Dehradun completely violated the provisions of Order 16 Rule 1 of C.P.C., which are fully applicable to the proceedings of Family Court in view of Section 10 of the Family Court Act. He submitted that Order 16 Rule 1 (2 & 3) specifically states that a party can obtain summons for attendance of a witness stating the purpose for which he is proposed to be summoned. Sub Rule 3 states that the Court may, for the reasons to be recorded, permit a party to call by summoning through Court or otherwise any witness, whose name does not appear in list referred in Sub-Rule 1. A conjoint reading of the aforesaid provision clearly indicates that the witnesses are to be summoned on the application of a party through Court and not mandatorily by dasti process. He submitted that the Court below committed manifest error of law and jurisdiction in mandatorily directing the petitioner to obtain summon by the dasti process. He submitted that while passing the order impugned, the Court below committed manifest error of law and jurisdiction, inasmuch as, the witnesses are crucial witnesses with respect of allegation of adultery and cruelty against the petitioner and both are under the control of the respondent and are not under the control of petitioner. He submitted that finding of the Principal Judge, Family Court, Dehradun, while passing the order impugned, that if petitioner wants to get deposed the witnesses, she shall take steps only by dasti process is against the legislative intent and prevailing law. He submitted that such observations in a judicial order are not expected in such nature nor the same is intention of Code of Civil Procedure and General Rules Civil. He submitted that rejection of application on the ground that there is direction of this Court to decide the matter expeditiously is against intention and spirit of order of this Court, while expediting the proceedings. He submitted that this Court observed in its order that the case may be decided on merit, in accordance with law, and no such direction was issued by this Court to the Court below to act contrary to law, as such finding based on the order of this Court is absurd. He submitted that this Court observed in its order that the case may be decided on merit, in accordance with law, and no such direction was issued by this Court to the Court below to act contrary to law, as such finding based on the order of this Court is absurd. He submitted that while passing the order impugned, learned Court below was obliged to act within its powers and jurisdiction and in exceeding the same, learned Court below committed gross illegality and material irregularity. He submitted that the order impugned is totally arbitrary and discriminatory in nature. Two different modes in the same proceedings are being adopted by the Court below with petitioner and respondent. He submitted that the action of the Court below is direct violation of Article 14 of the Constitution of India. He submitted that the Principal Judge, Family Court, Dehradun have not considered the aspect that petitioner is not having sufficient funds to go Assam and Delhi, as she had also to bear the expenses of the witnesses. She has no independent sources of income. Her children are dependent upon her. He submitted that the impugned order is wholly unjustified, illegal and deserves to be quashed. Learned counsel for the petitioner argued that responsibility cannot be imposed upon the party to keep his witnesses in attendance in Court at his own risk. In support of his submission, he relied upon paragraph no.4 of AIR 1981 MP 271 -Virendra Kumar Vs. Smt. Shanta Sharma and paragraph no.7 of AIR 1981 H.P. 6 -Smt. Dayawanti and others Vs. Kripa Ram. 4. Respondent filed counter affidavit, in which it is stated that the order dated 21.11.2011 has been passed by the Court below, after considering the facts and circumstances of the case, in accordance with the provisions of Order XVI Rule 1 of C.P.C. and General Rules (Civil), after hearing the both the parties and after going through the entire materials on record, and as such, there is no illegality or infirmity in the order of the Court below. It is stated that the witnesses Shri S.K. Nandal and Smt. Kirti Jain are also not under the control of respondent. Had these two witnesses been relevant and under the control of the respondent, the respondent would have produced them as his witnesses; which the respondent did not do. It is stated that the witnesses Shri S.K. Nandal and Smt. Kirti Jain are also not under the control of respondent. Had these two witnesses been relevant and under the control of the respondent, the respondent would have produced them as his witnesses; which the respondent did not do. The application for summoning these witnesses has been filed by the petitioner only, without even slightly elaborating their relevance in the matter and as to how, it would help in a just & fair trial. The application of petitioner was with malafide intention, therefore, there was no occasion for the Court below to summon these witnesses for their examination, just trial being a right of the respondent. It is stated that the divorce petition has been filed by the respondent and the burden of proof is also upon the respondent to prove his case. The dasti summons have already been issued to the petitioner to serve upon Shri S.K. Nandal and Smt. Kirti Jain, but in spite of taking the steps for service, through dasti summons, the petitioner filed the application for issuance of summons, through Court, which clearly shows the malafide intention of petitioner. The notices had already been issued by the Court below, but the same were returned with the endorsement that Shri S.K. Nandal and Smt. Kirti Jain are not residing to given addresses, therefore, it is not possible for the Court below to issue the Court summons to Shri S.K. Nandal and Smt. Kirti Jain, when the petitioner even does not know the addresses of these witnesses. It is submitted that the only intention of petitioner, through this writ petition, is to cause further cruelty, mental harassment and agony to the respondent by delaying and procrastinating the proceeding of divorce petition and, therefore, the application (paper no.161 C) was filed by the petitioner before the Court below. The witnesses, namely, Shri S.K. Nandal and Smt. Kirti Jain are not necessary witnesses and their examination is also not necessary before the Court below. It is stated that the petitioner cannot claim the benefit of order dated 31.03.2011, which has been passed by the trial court with regard to another witness Brijesh Mishra, a witness of the respondent as the examination of Shri S.K. Nandal and Smt. Kirti Jain is not necessary. It is stated that the petitioner cannot claim the benefit of order dated 31.03.2011, which has been passed by the trial court with regard to another witness Brijesh Mishra, a witness of the respondent as the examination of Shri S.K. Nandal and Smt. Kirti Jain is not necessary. It is stated that the Court below committed no mistake in directing the petitioner to take dasti steps for service upon Shri S.K. Nandal and Smt. Kirti Jain. The same has been done in accordance with the provisions of Order XVI Rule 1 of C.P.C. and General Rules (Civil). The application (paper no.l61 C) has been filed by the petitioner, only with the malicious intent to delay the proceeding of divorce petition. 5. Shri Pawan Mishra, learned counsel for the respondent submitted that as per the provisions of Order XVI of C.P.C. and General Rules (Civil), the petitioner was directed to take the steps of dasti summons, but in spite of taking the dasti summons, the petitioner filed a subsequent application (paper no.161 C) before the Court below for issuance of summons, through Court, which clearly shows that the application (paper no.161 C) filed by the petitioner was a crafty, after thought done, with malafide intention of the petitioner. He submitted that earlier also, the petitioner was adopting the delaying tactics and in those circumstances, the respondent had no option, except to file a writ petition for a direction to the Court below to decide the divorce petition within stipulated period. He submitted that this Court was kind enough to direct the Court below to decide the case “preferably within six months” but despite a lapse of more than 13 months from filing of this copy, again the petitioner is adopting the delaying tactics and her only intention is to further delay the proceeding of divorce petition. He argued that the order impugned is perfectly justified and it does not require any interference of this Court under Article 227 of the Constitution of India. He argued that the order impugned is perfectly justified and it does not require any interference of this Court under Article 227 of the Constitution of India. He contended that the order impugned has been passed by the Court below in accordance with the provisions of Order XVI of C.P.C. and General Rules (Civil) and there is no violation of Article 14 of the Constitution of India or and other provisions of law, because the witnesses Shri S.K. Nandal and Smt. Kirti Jain are not necessary witnesses in the present case and their names have been enlisted by the petitioner without even slightly elaborating at any stage, their relevance in the matter and as to how, it would help in a just & fair trial. He also submitted that the divorce petition has been filed by the respondent and the burden of proof is also upon the respondent to prove his case. The dasti summons have already been issued to the petitioner to serve upon Shri S.K. Nandal and Smt. Kirti Jain, but in spite of taking the steps for service, through dasti summons, the petitioner filed the application for issuance of summons, through Court below, as an after thought, which clearly shows the malafide intention of petitioner. He submitted that the notices had already been issued by the Court below, but the same was returned with the endorsement that Shri S.K. Nandal and Smt. Kirti Jain are not residing at the given addresses, therefore, it is not possible for the Court below to issue the summons to Shri S.K. Nandal and Smt. Kirti Jain, when the petitioner does not even know the address of these witnesses. He further submitted that the order impugned has been passed by the Court below, after considering the facts and circumstances, after going through the provisions of law and in the back ground of the direction of this Court to the Court below to decide the case “preferably within six months”. The order impugned is perfectly justified and the same does not require any interference of this Court under Article 227 of the Constitution of India. He submitted that the writ petition, filed on behalf of the petitioner, is devoid of merit and is liable to be dismissed, throughout with costs. 6. I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. 7. He submitted that the writ petition, filed on behalf of the petitioner, is devoid of merit and is liable to be dismissed, throughout with costs. 6. I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. 7. Names of Shri S.K. Nandal and Smt. Kirti Jain find figure in the list of witnesses filed by the petitioner. Principal Judge, Family Court, Dehradun acted in correct manner. It is not the case of the petitioner that notices were not issued by the Court to Shri S.K. Nandal and Smt. Kirti Jain. Principal Judge, Family Court issued notices to these witnesses but same were returned with the endorsement that Shri S.K. Nandal and Smt. Kirti Jain are not residing in the given addresses. Since these two witnesses are the witnesses of the petitioner, it was the duty of the petitioner to supply their correct address, which the petitioner did not supply. In such circumstances, the Principal Judge, Family Court, Dehradun rightly passed order asking the petitioner to serve the summons on witnesses by dasti process. The application filed by the petitioner for issuing summons to the witnesses through Court has rightly been rejected. Whether the witnesses, namely, Shri S.K. Nandal and Smt. Kirti Jain were crucial witnesses or not, it is the duty of the plaintiff/respondent to prove the allegation which he has leveled against the petitioner/defendant. If these witnesses are not examined, the plaintiff/respondent will also not be benefited. Neither the Principal Judge, Family Court exceeded his jurisdiction vested in him under the law nor his order is without jurisdiction as argued by the counsel for the petitioner. The order impugned is justified and does not require any interference. 8. Learned counsel for the petitioner placed reliance on paragraph no.4 of AIR 1981 MP 271 and paragraph no.7 of AIR 1981 HP 6 . Same are reproduced below: AIR 1981 MP 271 : “4. The impugned order imposing responsibility on the plaintiff to keep his witnesses in attendance in Court on the date fixed for their evidence, at his own risk, in case the summonses were not served on them, is obviously wrong and not in conformity with Rule 1 of Order 16, C.P.C. and the other following Rules under the said Order. The impugned order imposing responsibility on the plaintiff to keep his witnesses in attendance in Court on the date fixed for their evidence, at his own risk, in case the summonses were not served on them, is obviously wrong and not in conformity with Rule 1 of Order 16, C.P.C. and the other following Rules under the said Order. The trial Court is found to be wrong in imposing the condition that the plaintiff should take ‘special interest’ in getting his witnesses served, because no such condition is provided for in any of the provisions of the Code much less under Order 26 ibid. I feel, it is not a condition which is imposed on the plaintiff. Such a fact regarding taking special interest by the plaintiff is only, by way of observation to focus the attention of the plaintiff on the point that his witnesses are not turning up and, hence, he should take special interest to facilitate the due service on his own witnesses. Considering Rule 1 of Order 16, C.P.C. and also the subsequent Rules under the said Order, it is abundantly clear that the parties in the matter of summoning of witnesses have no other responsibility except to pay the process fee and diet money for their witnesses in time, of course, on furnishing proper and correct addresses of the witnesses. In case, the witnesses do not turn up despite service or otherwise, the subsequent Rules of O.16 are already there to cope up with the situation. However, it is equally true that a moral duty is cast on both the parties to the suit, in the interest of its expeditious disposal, that they assist the Court in every possible manner to facilitate the service on the witnesses and to procure their attendance in Court.” AIR 1981 HP 6 : “7. After hearing the learned counsel for the petitioners, I am of the view that the order of the Rent Controller, dated 28th November, 1977, closing evidence of the landlords-petitioners is not justified in the circumstances of the case. A perusal of the file shows that the petitioners had been trying to summon the Overseer of the Municipal Committee along with the records right from the year 1974 and diet money for this witness was deposited for the first time on 1-3-74 when the case had been fixed for the evidence on 13-3-74. A perusal of the file shows that the petitioners had been trying to summon the Overseer of the Municipal Committee along with the records right from the year 1974 and diet money for this witness was deposited for the first time on 1-3-74 when the case had been fixed for the evidence on 13-3-74. Thereafter the diet money of the witness was again deposited on 1-3-75 when the case had been fixed for the evidence of the landlords on 5-3-75. Again, the diet money of the witness was deposited on 11-10-77 when the case had been fixed for the evidence of the landlords on 28-11-77. The file also shows that the landlords had been filing the requisite process-fees for summoning the witness and such a process-fee for summoning the witness was also filed on 11-10-77 when the case was fixed for evidence on 28-11-77. In such circumstances, I do not find that there is any negligence on the part of the landlords to summon the witness. There is also nothing to suggest that the landlords had been avoiding to get the service on the witness effected. On the other hand the repeated filing of the process fees and the deposit of diet money clearly shows the keenness of the landlords to produce this witness along with the records in the court. Under the provisions of the Civil Procedure Code a party cannot be directed to take Dasti summons for effecting the service of the witness and as such the order of the court to the landlords for getting the Dasti summons is clearly wrong. The Rent Controller should have issued the summons to the witness and should have forced the attendance of the witness in the court and in case the witness had refused to attend the court in spite of the service of the summons then the Rent Controller should have taken recourse to other provisions of the Civil Procedure Code for enforcing the attendance of witness because the provisions of the Civil Procedure Code for enforcing the attendance of witnesses, etc. are applicable in Rent Proceedings. I am, therefore, in complete agreement with the view taken in Shri Chanan Singh’s case (supra).” These judgments are not applicable in present case. Judgment in the matter of Smt. Dayawanti was passed in rent control case. Another case law (Virendra Kumar) will also not apply due to different facts and circumstances. are applicable in Rent Proceedings. I am, therefore, in complete agreement with the view taken in Shri Chanan Singh’s case (supra).” These judgments are not applicable in present case. Judgment in the matter of Smt. Dayawanti was passed in rent control case. Another case law (Virendra Kumar) will also not apply due to different facts and circumstances. In the present case, the petitioner did not supply correct address of the witnesses whom she wanted to summon. Summons were already issued by the Court on the address given by her. Those summons returned with a remark that witnesses are not residing in the given addresses. Only thereafter order was passed asking the petitioner to serve those witnesses by dasti process. In my view, correct process was adopted by the Court below. 9. The writ petition is dismissed. The Principal Judge, Family Court is directed to decide the case very - very expeditiously. 10. No order as to costs.