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2017 DIGILAW 704 (JK)

Gaurav Dhingra v. Aastha Dhingra

2017-08-21

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : Dhiraj Singh Thakur, J. 1. This petition is preferred under Article 104 of the Constitution of Jammu and Kashmir read with Article 227 of the Constitution of India against the order dated 13.10.2016 passed by the Additional District Judge, (Matrimonial Cases), Jammu whereby the plea of the petitioner for invoking the provisions of Order VIII Rule 10 of the Code of Civil Procedure (for short, CPC) has been rejected. Briefly stated the material facts are as under: 2. Petitioner filed a suit for divorce under Hindu Marriage Act, 1955 (Central Act) before the Family Court at Saket, New Delhi on various grounds, which need not be referred to at this stage as the same are not relevant. Upon service of summons on 15.6.2015, the respondent finally entered appearance before the court on 30.6.2015 and a power of attorney was filed by her counsel. The Family Court, Saket, New Delhi, by virtue of order dated 30.6.2015 referred the parties for conciliation and fixed the date for appearance before the counsellor for the same. The court, by virtue of the said order, fixed the matter on 1.12.2015 for the report from the counsellor, failing which the respondent was directed to file the written statement within thirty days with an advance copy to the petitioner and further liberty to the petitioner to file replication within two weeks thereafter. The thirty days time allowed by the court lapsed on 30.7.2015. Despite appearance before the Mediation Officer on two occasions, the same did not bear fruit. In the meantime, it appears that the respondent filed a transfer petition before the Apex Court on 21.8.2015 and the same was allowed by virtue of order dated 7.9.2015 when the petition for divorce was transferred from Family Court, Saket New Delhi to the appropriate court at Jammu. 3. Upon receipt of the relevant records, fresh notice is stated to have been issued by the Matrimonial Court, pursuant to which, the respondent appeared on 14.11.2015 when a Vakalatnama was filed by her counsel. On 28.11.2015, the matter got adjourned to 22.12.2015 as the learned Presiding Judge (Matrimonial Cases), Jammu did not hold the court whereafter the matter is stated to have been fixed on 23.12.2015 when neither the respondent nor her counsel appeared. An adjournment was sought, which was granted but the written statement was not filed. On 28.11.2015, the matter got adjourned to 22.12.2015 as the learned Presiding Judge (Matrimonial Cases), Jammu did not hold the court whereafter the matter is stated to have been fixed on 23.12.2015 when neither the respondent nor her counsel appeared. An adjournment was sought, which was granted but the written statement was not filed. In the meantime, it appears that the Matrimonial Court initiated the mediation proceedings. Finally, it appears that on 12.3.2016 having failed to successfully conclude the mediation proceedings, the Matrimonial Court finally fixed 16.4.2016 as the next date and directed the respondent to file the written statement before the said date of hearing, although, according to the petitioner, no application for extension of time had been filed by her for seeking such an extension. On 30.4.2016, it is stated that the respondent did not file the written statement. On 13.5.2016, the respondent appears to have filed an application under Section 30 of the Jammu and Kashmir Hindu Marriage Act, 1980 for pendente lite maintenance. An objection was filed on 20.5.2016 where the petitioner challenged the right of the respondent to claim maintenance. On 20.5.2016, the respondent filed an application seeking stay of proceedings in the divorce petition till her application for pendente lite maintenance was decided. 4. Learned counsel for the petitioner urged that the court without deciding the petitioner's preliminary objection to the maintainability of the application under Section 30 of the Jammu and Kashmir Hindu Marriage Act directed the respondent to adduce evidence in support of her application for maintenance. Finally, after a couple of hearings, the application filed by the respondent under Section 151 of CPC was rejected by virtue of order dated 13.10.2016 impugned in the present petition and by the same order, the plea of the petitioner in terms of Order VIII Rule 10 of CPC has been rejected and the respondent was permitted to file objections to the divorce petition. It is this order, which has been questioned in the present petition. 5. Reliance has been placed on Order VIII Rule 1 of CPC to bring home the point that failure on the part of the respondent to file the written statement within the time prescribed therein, should have, in the normal course, resulted in forfeiture of her right to file written statement. 5. Reliance has been placed on Order VIII Rule 1 of CPC to bring home the point that failure on the part of the respondent to file the written statement within the time prescribed therein, should have, in the normal course, resulted in forfeiture of her right to file written statement. Order VIII Rule 1 of CPC as applicable in the State of Jammu and Kashmir is pertinent and reproduced hereunder: Order VIII Rule 1 "The defendant shall within thirty days from the date of service of summons on him present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons." 6. Although counsel for the petitioner referred to the provisions of the Code of Civil Procedure as applicable in the rest of the country, in my opinion, the same is not applicable after the matter stood transferred by the Apex Court and only the Code of Civil Procedure as is applicable in the State would govern the trial of the case at hand. 7. Counsel for the petitioner urged that respondent had lost her right to file the written statement after the expiry of the period prescribed in Order VIII Rule 1 of CPC and that there was no occasion for the court to have then permitted the respondent to file the written statement. 8. Learned counsel for the petitioner has placed reliance upon Madho Singh Chauhan v. Ritta @ Ritu, 225 (2015) DLT 610, Udanpur Corporation Handloom Weavers v. Special Additional District Judge, Sitapur and others, AIR 2009 Allahabad 134, Om Parkash Gupta v. Union of India & Ors., AIR 2000 SC 3585 , Sham Kapoor v. Suraj Parkash Kapoor & Ors., AIR 2004 Delhi 302, Jaswant Singh @ Kali v. Indravadal Chagaggan Lal Thakar & Ors., 2009 (3) GLJ 2513. 9. 9. Counsel for the respondent on the other hand stated that the time period prescribed in the Order VIII Rule 1 of CPC was directory and not mandatory and stated that the court permitted the respondent to file the written statement only after it felt that the conciliation and mediation proceedings had failed. 10. It was urged that failure on the part of the respondent to file the written statement was neither intentional nor deliberate. 11. Heard learned counsel for the parties. 12. The issue whether the provisions of Order VIII Rule 1 of CPC are directory or mandatory is no longer res integra. 13. In Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344 , the Apex Court held that there was no restriction in Order VIII Rule 10 that after the expiry of 90 days, further time could not be granted and that the provisions of Order VIII Rule 1 providing for upper limit of 90 days to file the written statement was directory. Having held so, it was further observed that the order extending the time to file written statement could not be made in a routine fashion and that the time could be extended in exceptionally hard cases so as not to nullify the period fixed by Order VIII Rule 1. 14. In Kailash v. Nanhku & Ors., (2005) 4 SCC 480 , the Apex Court reiterated the principles (supra) and further held that extension could be granted only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. What was stated by the Apex Court in paragraph 42 of the judgment is reproduced hereunder: "42. Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 15. Testing the facts of the aforementioned case on the touchstone of the legal principles enunciated hereinabove, it can be seen that the Family Court at Delhi had referred the parties for mediation on 30.6.2015 when it fixed the subsequent date on 1.12.2015 for the report from the counsellor failing which the respondent had been directed to file written statement within 30 days thereafter. 16. It is pertinent to mention here that before the mediation proceedings could be completed and a report obtained from the counsellor on 1.12.2015, a transfer petition came to be filed before the Apex Court, which came to be allowed on 7.9.2015 and the petition stood transferred to the appropriate court at Jammu. Thus, the mediation proceedings remained inconclusive. The respondent appeared before the court of learned Additional District Judge (Matrimonial Cases) Jammu and the matter appears to have been fixed for reconciliation between the parties on various dates of hearing up till 12.3.2016 when the court finally came to the conclusion that the reconciliation between the parties were unsuccessful and thus, ordered the respondent to file the written statement. 17. The next date in the matter was fixed on 16.4.2016. On this date, since objections were not filed by the respondent, last opportunity was granted by the court for doing the needful and the matter was then fixed on 30.4.2016. On 30.4.2016 also, the written statement/objections were not filed and an adjournment was sought on the ground that the respondent was suffering from ailments. On this date, since objections were not filed by the respondent, last opportunity was granted by the court for doing the needful and the matter was then fixed on 30.4.2016. On 30.4.2016 also, the written statement/objections were not filed and an adjournment was sought on the ground that the respondent was suffering from ailments. It was then, that the counsel for the petitioner raised a plea, requesting the court to invoke the provisions of Order VIII Rule 10 of the Code of Civil Procedure. Thereafter it appears that instead of filing the written statement, an application came to be filed by the respondent under Section 151 of CPC on 20.5.2016 and the court, which had already heard in part the arguments on the plea of Order VIII Rule 10 of CPC, decided to proceed with the said application simultaneously by inviting objections on the same and finally decided the both together by virtue of the order impugned dated 13.10.2016. 18. As can be seen from the order sheet, even the court at Delhi had first made an effort to refer the parties for mediation for an amicable reconciliation and filing a written statement was subject to failure in the said proceedings for which date has been prescribed. Upon transfer of the matter to Jammu by the Apex Court, the Matrimonial Court at Jammu yet again started the mediation proceedings, which finally came to be closed by virtue of order dated 12.3.2016. 19. On a perusal of the order sheets, it, thus, becomes clear that most of the time was consumed by the court only in ensuring mediation between the parties, whether it be at Delhi or in the matrimonial court at Jammu. It was only upon failure of the mediation proceedings on 12.3.2016 at Jammu that the court finally directed the respondent to file the written statement. Thereafter two adjournments were granted to the respondent to file the written statement, which was treated as last opportunities by the court before the application under Section 151 of the Code of Civil Procedure came to be filed for staying the divorce proceedings in the court. 20. Thereafter two adjournments were granted to the respondent to file the written statement, which was treated as last opportunities by the court before the application under Section 151 of the Code of Civil Procedure came to be filed for staying the divorce proceedings in the court. 20. It was, therefore, necessary for the court to first decide the application under Section 151 of CPC filed by the respondent, for, it could not have first pronounced the judgment under Order VIII Rule 10 of CPC against the respondent and then proceeded to decide application under Section 151 of CPC. 21. In my opinion, the justification given by the court below in rejecting the plea of the petitioner for invoking the provisions of Order VIII Rule 10 of CPC, cannot be faulted as a major period of time was consumed by the court in mediation proceedings which steps, it was obliged to take in law in terms of Section 28(2) of the Jammu and Kashmir Hindu Marriage Act. Having said so, it also requires to be ensured that a party to litigation does not succeed in delaying the proceedings and dragging the matter to the court ad infinitum. 22. For the reasons mentioned above, it is ordered that the respondent shall file the written statement within ten days from today failing which her right shall stand closed. Disposed of accordingly along with connected MP.