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Orissa High Court · body

2017 DIGILAW 820 (ORI)

Subhashree Panda v. Prasanta Kumar Panda

2017-07-31

BISWANATH RATH

body2017
JUDGMENT BISWANATH RATH, J. - This Civil Revision involves an order dated 26.6.2014 rejecting an application under Order 7 Rule 11 of C.P.C. thereby rejecting the application at the instance of the wife-defendant for rejection of the plaint. 2. Short background involved in the case is O.P. 1 filed C.S. No.558/2013 praying therein for recovery of a sum of Rs.2,52,500/- with cost and up-to-date interest. Facts as narrated in the plaint is that on suppressing the mental ailments of their daughter, defendant-petitioner Nos. 2 and 3 got married of their daughter, defendant No.3 with the plaintiff-O.P. 1 herein. The marriage was solemnised on 26.6.2013. It is further pleaded that on arriving at a formal compromise of the dispute between the plaintiff and the defendants, on 8.9.2013 the defendant petitioner No.2 received back the articles and cash of Rs.2,52,500/- handed over by the plaintiff No.2 upon acknowledging a receipt thereof. On receipt of the articles and the amount as well, the plaintiff claimed that the cash involved therein was the settled amount towards permanent alimony to the wife. On the premises that as the defendant refused to sign the deed of compromise as well as in the joint application for dissolution of marriage, the plaintiff claimed, the defendants will be liable to return the said amount. Defendant-O.Ps. upon their appearance in the proceeding filed an application under Order 7 Rule 11 of C.P.C. for rejection of the plaint, inter alia, contending that the facts whatever involved in the plaint since involved a matter relating to marriage between the wife and husband and the benefits involved in order to attain a compromise in the matter of dissolution of marriage for the clear restriction in the Family Act, 1984, simple suit for recovery of the amount is not maintainable. Both parties also advanced argument in the light of their pleadings available in the plaint as well as the objection by the husband and the pleadings available in the application under Order 7 Rule 11 of C.P.C. at the instance of the defendants. Considering the rival contentions of the parties and taking into consideration the decision relied upon by the present petitioners, the Trial Court rejecting the application under Order 7 Rule 11 of C.P.C. with the observation that neither the plaint did not have a cause of action nor the Court is in seisin is bereft of jurisdiction to decide such matter. 3. 3. Challenging the impugned order, Sri Dash, learned Counsel for the defendants in the Court below while reiterating the stand taken in the Order 7 Rule 11 application, referring to the provisions contained in Section 7 of the Family Courts Act and relying on certain decisions reported in AIR 2016 SC 2161 (Balaram Yadav Vrs. Fulmaniya Yadav*), AIR 2003 SC 2525 (K.A.Abdul Jaleel vrs. T.A. Sahida), AIR 2010 Kerala 130 (Sindhu Sidharthan vrs. K.K. Sidharthan) and AIR 2002 Karnataka 399 (H.P. Lakshmidevaraje vrs. G.P.Asharani Atlas Nandini) submitted that the suit is not maintainable for the involvement of the dispute involving marriage between the plaintiff and defendant No.3. It is also contended that the decisions relied on by him are all supporting the case of the petitioners and thus requested this Court for interfering with the impugned order and setting aside the same. 4. Sri Katikia, learned Counsel for the husband- O.Ps. (plaintiffs in the suit) on the other hand while opposing the stand taken by the learned Counsel for the petitioners all through under the premises that there being no involvement of prayer for restitution or dissolution of marriage involved therein, the suit is a simple suit for recovery of money involved. Consequently in his attempt to justify the impugned order, Sri Katakia submitted that for no infirmity in the impugned order, there is no scope for interference in the impugned order by this Court and claimed for dismissal of the Civil Revision. 5. Considering the rival claim of the parties, this Court finds, the question required here to be determined as to “whether for the involvement of the facts therein the suit will be treated as a simple suit for money decree and if not, is the civil suit maintainable under the circumstances.? Considering the rival contentions of the parties, from the plaint involving C.S. No.558/2013, this Court finds, the plaint contains the following pleadings: 3. That the present suit concerns the plaintiffs, as the Defendants, by way of their preplan, malicious, motivated and illegal acts, cheated, dishonestly induced and extorted the plaintiffs, a sum of Rs.2,52,500/-, by fraudulently and dishonestly representing for an amicable settlement of the disputes between the plaintiffs and Defendants. Believing their words, the plaintiffs fulfilled their part of obligations by paying a sum of Rs.2,52,500/- and returned the articles. Believing their words, the plaintiffs fulfilled their part of obligations by paying a sum of Rs.2,52,500/- and returned the articles. Upon receiving the same, the Defendants took a complete somersault by going back on their promises and did not settle the disputes, as promised and they have misappropriated and converted the money for their personal use. 4. The brief facts for filing the present suit are that on 1.3.2013, the Defendant No.2 send the marriage proposal of the Defendant No.1 with the plaintiff No.1, disclosing that Defendant No.1 is an educated, simple, homely and normal girl. On 13.5.2013, based on the said disclosures, the Ring Ceremony was held and Plaintiff No.1 had given his consent for the marriage. Whereas, the following material facts were deliberately concealed by the defendants from the plaintiffs and fraud/cheating was committed. i. That Defendant No.1 was/is suffering from Paranoid Schizophrenia and mental disorder. If the plaintiff No.1 would have been informed/known about it, prior to the Ring Ceremony/marriage, he would not have given his consent for marriage at all. ii. There were mis-representation and wrong disclosure of material facts in the marriage invitation cards, printed by the Defendants, as two sets of invitation cards were got printed by them, one for the plaintiffs, where their correct address i.e. Talamali Sahi, Puri” was printed and in the set of cards printed for the relatives of the Defendants, the address of the Plaintiffs was intentionally and deliberately printed, as “Khurda Town”. Copies of the marriage invitation cards of both verities printed by the Defendant No.2 are (Annexure-P1 Colly) and the copy of the marriage card of the Plaintiff No.1 is (Annexure-P2). ‘iii. The defendants had changed their ancestral residence from “Dolamandap Sahi”, Puri to the present rented accommodation, only before few days of marriage. The Defendant No.2 and 3, also forced the Plaintiffs to proceed the marriage negotiations very fact, without waiting the Defendant No.1’s LL.B. examination (from 29.7.2013 to 22.8.2013) and even without waiting the probation period of six months i.e. up to 27.7.2013 of the Plaintiff No.1. It is pertinent to mention that the intention behind the aforesaid concealment was to keep in secret about the material facts that the Defendant No.1 was/is suffering from mental disorder. It is pertinent to mention that the intention behind the aforesaid concealment was to keep in secret about the material facts that the Defendant No.1 was/is suffering from mental disorder. The Defendants had full knowledge of its falsity and the deceit and fraud constituting the false statement and mis-representation were made wilfully by the Defendants and reliance on the said false statement was made by the Plaintiffs, thereby causing loss to them. 5. On 26.6.2013, the marriage between the Plaintiff No.1 and Defendant No.1 was solemnized. Starting from the day one of the marriage, the Defendant No.1 exhibited a wide array of symptoms of mental disorder including insomnia, irritability, tendency to cause trouble by suspecting others’ character and behaved in a very unnatural and abnormal manner. When the Plaintiff No.1 intimated the said abnormal behaviour of the Defendant No.1 to the Defendant No.2 and 3, they confessed the same. Instead of giving any solution, they started planting thoughts in the mind of Defendant No.1, against the Plaintiffs, in order to gain control over her and to promote disharmony in her married life. In the circumstances, the marriage was not consummated and the Plaintiff No.1 did not go for honeymoon and even the marriage, was not registered. On 5.7.2013, at about 7.30 P.M., the Defendant No.1 called the Defendant No.2 and 3 to the Plaintiff No.1’s house and in their presence, the Defendant No.1, due to her mental disorder, got excited and was unable to make differentiation between elders and younger in the family of the plaintiffs and started scolding them by using filthy languages. When Plaintiff No.2 and his wife objected to the same, the Defendant No.1 assaulted the wife of the Plaintiff No.2 by pushing her around with great force and thrown her out of the room. At 11.00 P.M., the Defendant No.1 left the house along with her parents with most of her belongings including jewellery, putting a lock to the room. While crossing through the colony, the Defendants continued to abuse the family of the Plaintiffs’ and the people of the entire colony came to know that the Defendant No.1 is an abnormal lady and suffering from mental disorder. On 6.7.2013, at 2 A.M., a complaint was lodged against the Defendants before the Kubharapada Police Station, on which a formal station diary vide SDE No.136 was made. On 6.7.2013, at 2 A.M., a complaint was lodged against the Defendants before the Kubharapada Police Station, on which a formal station diary vide SDE No.136 was made. Whereas, the Defendants, especially, the Defendant No.1 continued to harass, cause mental torture, threatened to life and threatened of taking the job of the Plaintiff No.1. Therefore, the Plaintiff No.1 was constrained to lodge the second complaint dated 17.8.2013 before the said IIC with CC to SP, Puri. Copies of the complaints, as well as the extracts of the aforesaid order of Kumbhara Pada Police Station, Puri are Annexure-P3 (Colly). 9. The Defendants after coming to know about the pendency of the aforesaid petition and complaints, on 4.9.2013, voluntarily approached the Plaintiffs through Mr. Ashok Kumar Dash, Advocate for an amicably settlement of the disputes, with the conditions to return by the Plaintiffs, the gifted articles, brought by the Defendant No.1 at the time of marriage. A sum of Rs.2,52,500/- was also demanded by the Defendants towards permanent alimony of Defendant No.1 and for full and final settlement of all the disputes with the Plaintiffs and for giving the consent of Defendant No.1 in the aforesaid petition, filed by the Plaintiffs No.1 for annulment of marriage. The said conditions were accepted by the Plaintiffs in a joint meeting held on 8.9.2013, which was presided over by Mr. Ashok Kumar Dash, Advocate. Accordingly, both the parties came to the residence of the Plaintiff No.1 and the Defendant No.2 and 3, after identifying, verifying and counting all the articles, loaded the same in a Tata-407 Vehicle. A sum of Rs.2,52,500/- was also handed over by the Plaintiff No.2 to the Defendant No.2 towards full and final settlement of all the disputes between the Plaintiffs and the Defendants and for giving the consent of the Defendant No.1 in the aforesaid petition, filed by Plaintiff No.1 for annulment of marriage. Whereas, the Defendant No.2 signed the acknowledgment of receipt of the articles and the acknowledgment of receipt of the sum of Rs.2,52,500/- and assured the Plaintiffs and Ld. Counsel Mr. Ashok Kumar Dash, Advocate to get the rest of documents signed from the Defendant No.1 from their residence, as she was present there that time. The Plaintiffs as well as Ld. Counsel Sh. Counsel Mr. Ashok Kumar Dash, Advocate to get the rest of documents signed from the Defendant No.1 from their residence, as she was present there that time. The Plaintiffs as well as Ld. Counsel Sh. Ashok Dash, Advocate and few gentlemen, reposing trust and confidence upon the assurance given by the Defendant No.2 and 3, went to their residence, wherein they duly unloaded and received the aforesaid articles to their entire satisfaction .When the Plaintiffs and Ld. Counsel Sh. Ashok Kumar Dash, Advocate requested them for signing the deed of compromise and joint application in terms of the settlement, the Defendants, took a complete somersault by going back on the promises made during the settlement and did not sign on the said documents. On the other hand, they grossly abused the Ld. Counsel Mr. Ashok Kumar Dash, Advocate, the Plaintiffs and other gentlemen, thereby threatening them to arrest by calling Police on the pretext of attempt to rape. The Defendants, by way of their aforesaid preplan, malicious, motivated and illegal acts, cheated, dishonestly induced and extorted the Plaintiffs by fraudulently and dishonestly representing for the aforesaid amicable settlement and fraudulently represented to take articles and money from the Plaintiffs, when actually, their intention was not to be settlement the disputes. The Plaintiffs would not have disbursed any amount but due to the preplan and false representations made by the Defendants, the Plaintiff No.2 paid the said amount. Believing their words, the Defendant No.2 being an Advocate/Notary and the Defendant No.3 being a teacher the Plaintiffs fulfilled their part of obligations. Upon receiving both the articles and cash, the Defendants took a complete somersault by going back on their promises. The Defendants have illegally and dishonestly extorted the said monies and misappropriated and converted the same to their own use. Copies of the acknowledgment of receipt of the articles and cash for the sum of Rs.2,52,500/- by the Defendant No.2 is Annexure-P7 (Colly). 12. Thereafter, the plaintiffs contacted the Defendants and requested them to amicably resolve the dispute, without resorting to legal battle and to sign the Deed of compromise and joint application for annulment of the marriage, as promised by the Defendants. It was further requested that in case of the failure of the Defendants to avail the said option, to return the aforesaid amount of Rs.2,52,500/- along with interest. It was further requested that in case of the failure of the Defendants to avail the said option, to return the aforesaid amount of Rs.2,52,500/- along with interest. Whereas, the Defendants, neither signed the aforesaid Deed of compromise and joint application nor refunded the aforesaid amount of Rs.2,52,500/- along with interest. The plaintiffs, thereafter, had no option other than to issue the Defendants, legal notice dated 16.9.2013 through their Counsel calling upon the Defendants to return the aforesaid amount of Rs.2,52,500/- along with interest, within 3 days from the date of receipt of the legal notice. The said legal notice was sent to the Defendants through Regd. AD and Speed post. The original legal notice dated 16.9.2013 is annexed herewith as Annexure-P9. The Postal receipts are annexed herewith as Annexure-P10 (Colly). Whereas, the Defendants refused to receive the said legal notice. The aforesaid original envelopes containing the legal notice returned to the Counsel for the Plaintiffs are annexed herewith as Annexure-P-11 (Colly.) From the pleadings available in the aforesaid paragraphs, there leaves no doubt that the attempts all involved in a negotiation for the annulment of the marriage between the husband and the wife involved therein, the amount so settled between the parties as appears is in a way for settling a marriage dispute, the pleading is also intended to see a resolution of the marriage between the husband and wife. Considering the pleadings in the application under Order 7 Rule 11 of C.P.C. so also the reply by the plaintiff-husband to the above petition, there also leaves no doubt that there is no denial by either of the parties that the matter did not involve a marriage dispute. 9. Coming to consider the provision contained in Section 7 of the Family Courts Act, 1984 under Chapter-III, Section (1) (a) of the Act along with the explanation reads as follows : “7.Jurisdiction – (1) Subject to the other provisions of this Act, a Family Court shall – (a) have an exercise all the jurisdiction exercisable by any District Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation. Explanation – The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely :- (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status or any person ; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance, (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. Looking to the provision referred to herein above, particularly Explanations (b) (c) and (f) referred to herein above, this Court finds for the facts involved in the plaint, such suit before the civil forum will be the clear bar. Hence this Court observes, the Family Court under the Family Courts Act is the only competent authority to decide such issues. Further for the facts involved therein, the suit cannot be treated as a simple suit for recovery of money. The Court undertaking such process is bound to take up the question relating to validity of the marriage and the validity of the compromise involved therein to achieve dissolution of marriage and there is no other go. Further considering that the payment involving the purpose, this Court finds, the amount has become a property of a party involving dissolution of a marriage and such dispute otherwise cannot be decided unless appropriate proceeding is instituted in the Family Court available for the purpose. 7. Now looking to the decisions cited by the learned Counsel for the petitioners, this Court finds, in the case of K.A.Abdul Jaleel (supra), in paragraphs 10, 11, 12, 13 and 14, Hon’ble Apex Court has observed as follows : “10. 7. Now looking to the decisions cited by the learned Counsel for the petitioners, this Court finds, in the case of K.A.Abdul Jaleel (supra), in paragraphs 10, 11, 12, 13 and 14, Hon’ble Apex Court has observed as follows : “10. The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of Objects and Reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts the matters relating to the property of the spouses or either of them. Section 7 of the Act provides for the jurisdiction of the Family Court in respect of suits and proceedings as referred to in the Explanation appended thereto. Explanation (c) appended to Section 7 refers to a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. 11. The fact of the matter, as noticed hereinabove, clearly shows that the dispute between the parties to the marriage arose out of the properties claimed by one spouse against the other. The respondent herein made a categorical statement to the effect that the properties were purchased out the amount paid in cash or by way of ornaments and the source of consideration for purchasing the properties described in Schedules ‘A’ and ‘B’ of the suit having been borne out of the same, the appellant herein was merely a trustee in relation thereto and could not have claimed any independent interest thereupon. It is also apparent that whereas the agreement marked as Exhibit A1 was executed on 17.09.1994, the appellant pronounced Talaq on 01.11.1995. The wordings ‘disputes relating to marriage and family affairs and for matters connected therewith’ in the view of this Court must be given a broad construction. The Statement of Objects and Reasons, as referred to hereinbefore would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties or spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other; irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise. 12. 12. The submission of the learned Counsel to the effect that this Court should read the words “a suit or proceeding between the parties to a marriage” as parties to a subsisting marriage, in our considered view would lead to miscarriage of justice. 13. The Family Court was set up for settlement of family disputes. The reason for enactment of the said Act was to set up a Court which would deal with disputes concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings. The said Act was enacted despite the fact that Order 32A of the Code of Civil Procedure was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976, which could not bring about any desired result. 14. It is now a well settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to Section 7 of the Act, in our opinion, would frustrate the object where for the Family Courts were set up. Similarly in another decision of Balaram Yadav (supra), Hon’ble Apex Court considering as to which Court has the jurisdiction over the dispute involved therein paragraph 7 held as follows : “7. Under Section 7 (1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, here is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. In case, here is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws.” In another case of Sindhu Sidharthan (supra), Hon’ble Apex Court deciding the property involved one of the spouses where brings the dispute to the trap of family dispute and thus, comes within the jurisdiction of Family Court in paragraphs 16 and 17 has observed as follows : “16. A careful reading of the plaint clearly shows that the spouses while the matrimony was in subsistence had initially great trust and faith in each other. The wife who was more educated, competent and qualified was assisting the husband in the management of his properties. It is to facilitate such management by her that the husband placing absolute matrimonial trust and implicit faith executed the Power of Attorney document. It is the alleged abuse of the position and status as a spouse ( on whom complete matrimonial trust and faith was placed and in whose favour the Power of Attorney document was executed to facilitate her to act on behalf of the other spouse) which is the foundation of the cause of action in this case. Even accepting any standards we find it impossible to construe that the dispute in the instant case is unrelated to the marital status of the parties or that it has to be reckoned as a non-family dispute. 17. To summarise, the dispute is between the spouses. It relates to an item of property of the husband. The dispute is whether the document executed by the wife in her capacity as a Power of Attorney Holder after the revocation of the instrument of Power of Attorney is valid or not. But the underlying substratum of the case is that the matrimonial trust and faith reposed had been abused. We are unable to accept the argument that the dispute is not a family dispute or that for that alleged reason it would go out of the sweep of Explanation (c) to Sec. 7 (1). 8. But the underlying substratum of the case is that the matrimonial trust and faith reposed had been abused. We are unable to accept the argument that the dispute is not a family dispute or that for that alleged reason it would go out of the sweep of Explanation (c) to Sec. 7 (1). 8. For the observations of this Court herein above, the provision contained in Section 7 of the Family Courts Act and further for the decisions referred to herein above have a great bearing on the case at hand, this Court has no hesitation in holding the impugned order bad in law. Under the circumstances, while answering the question framed herein above in favour of the petitioners, this Court while setting aside the order passed by the Trial Court involving the application under Order 7 Rule 11 of C.P.C., allows the said application and thereby declares the suit as not maintainable. No cost. Application allowed.