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2014 DIGILAW 132 (TRI)

Anal Kumar Paul v. Chhanda Roy

2014-03-25

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- This second appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 28.05.2009, passed by learned Addl. District Judge, North Tripura, Dharmanagar in Money Appeal No. 4 of 2008, after setting aside the judgment and decree dated 28.06.2008 passed by learned Civil Judge, Senior Division, North Tripura, Dharmanagar in Money Suit No. 5 of 2007. Heard learned counsel, Mr. A. Lodh for the appellant and learned counsel, Mr. A. Dasgupta for the respondent. 2. The second appeal has been admitted for hearing on the following substantial question of law: Whether provisions of Order 32 Rule 15 of CPC is applicable in the instant case or not? 3. Facts in short material for the purpose of disposal of this appeal may be stated thus: 3.1. The respondent as plaintiff (hereinafter mentioned as plaintiff) instituted Money Suit No. 5 of 2007 claiming compensation and damage of Rs. 4.00 (rupees four lakh) against the appellant (hereinafter mentioned as defendant) and his father Monoranjan Pal, who died in the meantime while the first appeal was pending in the Court of Addl. District Judge. 3.2. The plaintiff’s case is that her marriage was solemnized on 23.02.2006 as per Hindu rites at Thakurpally Road, Agartala and ’Subha-Chaturthamangal’ ceremony was held on 26.02.2006. On the night of ’Chaturthamangal’ ceremony the plaintiff could realize that her husband, the defendant No. 2 (appellant herein) was suffering from mental and physical disorder and the marriage was not consummated. She instituted TS (Nullity) 8 of 2006 in the Court of Addl. District Judge, Dharmanagar, North Tripura and the suit was decreed by judgment dated 06.12.2006 and it was declared that the marriage solemnized between the plaintiff and the defendant-appellant was null and void due to non-consummation of their marriage. The judgment passed in TS (Nullity) 8 of 2006 stands good and was not challenged in any superior forum. In that judgment, it was further observed that the plaintiff sought leave to file a separate suit for compensation and leave was granted to file a subsequent suit if she was so advised. 3.3. The plaintiff thereafter instituted Money Suit No. 5 of 2007, i.e. the present suit claiming compensation of Rs. In that judgment, it was further observed that the plaintiff sought leave to file a separate suit for compensation and leave was granted to file a subsequent suit if she was so advised. 3.3. The plaintiff thereafter instituted Money Suit No. 5 of 2007, i.e. the present suit claiming compensation of Rs. 4.00 lakh on the ground that the defendant-appellant knew the fact that he was not mentally and physically sound and his father also knew the fact of mental and physical disorder of the defendant-appellant and knowing it well the marriage was solemnized and thereby the life of the plaintiff was put to jeopardy. 3.4. The defendants contested the suit by filing written statement denying the averments made in the plaint and further stated that the marriage was solemnized on negotiation after having consultation between the parties and nothing was suppressed to the plaintiff or her guardian. 3.5. The trial Court considering the pleadings of the parties framed four issues: 1. Is the suit maintainable in its present form? 2. Has the plaintiff any cause of action to file this suit? 3. Whether plaintiff is entitled to get any compensation? 4. To what other relief/reliefs the parties are entitled? 3.6. The plaintiff examined herself as PW1 and also examined three more witnesses, namely PW2, Amarendra Roy, father of the plaintiff, PW3, Santosh Kr. Nath and PW4, Sudhangshu Bhusan Dey. In support of her case she has also proved a copy of advocate notice, marked as Exbt. 1 and a certified copy the judgment passed in TS (Nullity) 8 of 2006, marked as Exbt. 2. Defence adduced no oral or documentary evidence. 3.7. The trial Court dismissed the suit on the ground that the provisions of order XXXII Rule 15 of CPC was not complied with. 3.8. Aggrieved, the plaintiff preferred Money Appeal No. 4 of 2008 in the Court of Addl. District Judge, Dharmanagar, North Tripura and the learned Addl. District Judge allowed the appeal and decreed the suit granting compensation of Rs. 1.00 lakh (rupees one lakh) to the plaintiff. 3.9. Having felt aggrieved, the present second appeal is filed by the defendant No. 2, which has been admitted for hearing on the substantial question of law mentioned hereinabove. 4. Learned counsel, Mr. District Judge allowed the appeal and decreed the suit granting compensation of Rs. 1.00 lakh (rupees one lakh) to the plaintiff. 3.9. Having felt aggrieved, the present second appeal is filed by the defendant No. 2, which has been admitted for hearing on the substantial question of law mentioned hereinabove. 4. Learned counsel, Mr. Lodh has submitted that according to the plaintiff, the appellant who was the defendant No. 2 in the suit was an insane and considering the ground of insanity the decree of nullity was passed by the learned Addl. District Judge, Dharmanagar in TS (Nullity) No. 8 of 2006 and it is to be presumed, therefore, the defendant No. 2, i.e. the appellant herein was insane. When the Money Suit No. 5 of 2007 was filed, the provision of Rule 15 of Order XXXII of CPC has not been complied with and, therefore, the decision taken by the trial Court was appropriate and the appellate Court has failed to construe the said fact and arrived at a wrong decision. 5. I have meticulously gone through the pleadings of the parties made in the plaint and written statement. The plaintiff alleged that at the time of solemnization of marriage her husband, the defendant No. 2 (appellant herein) was suffering from physical and mental disorder and that their marriage was not consummated. Both the defendants, i.e. the father and son appeared in the suit and filed written statement. It is not a case that defendant No. 2, i.e. the appellant herein because of his insanity did not appear in the suit and did not file any written statement. While the defendant No. 2, i.e. the appellant herein who was the husband of the plaintiff appeared and contested the suit by filing written statement jointly with his father and nowhere it is alleged that the defendant was suffering from insanity, it was not proper for the trial Court to arrive at a conclusion that the suit was bad for non-compliance of the provision prescribed in Order XXXII of CPC. 6. The question of dissolution of marriage by a decree of nullity has not been challenged in the superior forum and the judgment passed in the Nullity Suit stands good. 6. The question of dissolution of marriage by a decree of nullity has not been challenged in the superior forum and the judgment passed in the Nullity Suit stands good. It is, therefore, judicially established that the marriage solemnized between the plaintiff and the defendant No. 2 (appellant herein) on 23.02.2006 was not consummated and, therefore it was declared as null and void. The plaintiff was also given the leave by the matrimonial Court to institute a separate suit for damage. No plea of any constructive res adjudicate was also taken by the defendants. The appellate Court considered the fact that the marriage could not be consummated because of the mental and physical disorder on the part of the defendant No. 2 and that has caused damage to the plaintiff since the defendants, knowing fully well the physical and mental disability suppressed the fact and arranged the marriage. 7. Compliance of Order XXXII Rule 15 would arise, had the defendant No. 2, i.e. the divorced husband of the plaintiff was not in a position to contest the suit because of insanity. Since the defendant No. 2, i.e. the appellant herein and his father jointly appeared and contested the suit by filing written statement, wherein no plea was taken at that relevant point of time that the defendant No. 2 was suffering from insanity or any other disability which debarred him in taking proper defence, therefore, the plea in the second appeal is totally unfounded and devoid of any consideration. 8. I find no merit in the appeal and, hence the appeal stands dismissed. Send back the L.C. records along with a copy of this judgment.