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2017 DIGILAW 842 (RAJ)

Sampati W/o Dilip Choudhary v. Dilip Choudhary S/o Sh. Prehlad Ram Choudhary

2017-03-30

SANGEET LODHA

body2017
ORDER : Sangeet Lodha, J. 1. This petition is directed against order dated 4.4.16 of Judge, Family Court, Sri Ganganagar, whereby an application preferred by the petitioner raising objection against the certain documents produced by the respondent along with an additional affidavit without prior permission of the court being taken on record, stands rejected. 2. The relevant facts are that petitioner and respondent entered into marriage on 16.2.10. The respondent filed a petition seeking divorce under Section 13 of Hindu Marriage Act, 1955 (for short the Act of 1955) before the Family Court, Sikar on 17.5.14. The respondent filed his own affidavit on 22.12.14. In the meantime, the petitioner filed an application under Section 9 of the Act of 1955 before the Family Court, Sri Ganganagar on 22.9.14. The petitioner preferred a transfer petition seeking transfer of the Divorce Petition preferred by the respondent as aforesaid from the Family Court, Sikar to Family Court, Sri Ganganagar, which was allowed by Jaipur Bench of this court vide order dated 3.2.15 passed in S.B.C.Transfer Petition No.86/14. 3. After the transfer of the Divorce Petition as aforesaid, the petitioner filed a reply to the Divorce Petition on 18.8.15. The respondent filed yet another affidavit on 19.12.15. The respondent also filed a reply to the petition under Section 9 of the Act of 1955 preferred by the petitioner. The petitioner preferred an application for consolidation of the proceedings under Section 9 and Section 13 of the Act of 1955, which was allowed by the Family Court, Sri Ganganagar vide order dated 11.1.16 and the proceedings of both the petitions were consolidated. After consolidation of both the petitions, on 25.1.16 the respondent sought time to file affidavit in support of consolidated petitions, which was allowed. On the next date of hearing i.e. 6.2.16, the respondent filed his own affidavit and the affidavits of two witnesses as also certain documents, which were taken on record. In view of the consolidation of the petition, the respondent also filed an application under Order 14, Rule 5 for framing the issues afresh. On 10.2.16 while allowing the application preferred by the respondent as aforesaid, the Family Court framed the issues. On 5.3.16, the petitioner was granted an opportunity to cross examine the respondent on the cost of Rs.3,000/-. In view of the consolidation of the petition, the respondent also filed an application under Order 14, Rule 5 for framing the issues afresh. On 10.2.16 while allowing the application preferred by the respondent as aforesaid, the Family Court framed the issues. On 5.3.16, the petitioner was granted an opportunity to cross examine the respondent on the cost of Rs.3,000/-. On the next date of hearing, the petitioner preferred three applications before the Family Court including an application under Section 151 CPC objecting the documents produced by the respondent on 6.2.16 being taken on record. The application preferred stands rejected by the Family Court by the order impugned. Hence, this petition. 4. Learned counsel appearing for the petitioner contended that as per Order 7, Rule 14 (3) CPC, a document which ought to be produced in the Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly shall not be without the leave of the Court be received in evidence on his behalf at the hearing of the suit and therefore, the Family Court has seriously erred in taking the documents on record in defiance of the mandate of provisions of Order 7, Rule 14 (3) CPC. Learned counsel submitted that the documents produced are not even mentioned in the petition filed and thus, the same could not have been permitted to be taken on record. Learned counsel urged that documents produced beyond the pleadings cannot be admitted in evidence and thus, the order impugned passed by the Family Court is ex facie erroneous and deserves to be set aside. 5. On the other hand, the counsel appearing for the respondent submitted that throughout the proceedings, the petitioner is adopting delaying tactics which is apparent from bare perusal of the order sheets placed on record. Learned counsel submitted that after consolidation of the petitions, the respondent was well within his right to file the fresh affidavit along with documents and thus, the Family Court was absolutely justified in taking the documents produced on record. Learned counsel submitted that after consolidation of the petitions, the respondent was well within his right to file the fresh affidavit along with documents and thus, the Family Court was absolutely justified in taking the documents produced on record. Learned counsel submitted that the Family Court is empowered to receive as evidence any document which may in its opinion assist it to deal effectually with the dispute whether or not such documents are otherwise relevant or admissible under the Indian Evidence Act, 1872 and thus, the order impugned passed by the Family Court cannot be faulted with. Learned counsel urged that in any case, it is always open for the petitioner to question the admissibility of the documents in evidence before the Family Court and thus, the objection raised by the petitioner against the documents being taken on record, was devoid of any merit and the same has rightly been rejected by the Family Court. 6. I have considered the submissions of the learned counsels for the parties and perused the material on record. 7. It is to be noticed that subsequent to the affidavit earlier filed by the respondent, the proceedings of both the petitions; one preferred by the petitioner under Section 9 of the Act of 1955 and another by the respondent under Section 13 of the Act of 1955 were consolidated and therefore, the time sought by the petitioner for filing the affidavit afresh was allowed by the Family Court on 25.1.16 and accordingly, the affidavits and the documents filed by the petitioner on the next date of hearing were taken on record. It is true that as per mandate of Order 7, Rule 14 (3) CPC, if any document or copy thereof could not be filed with the plaint, it could be taken on record subsequently only with the leave of the Court. But then, as per provisions of sub-section (1) of Section 9 of the Family Courts Act of 1984 (for short the Act of 1984), the provisions of CPC are applicable to the proceedings before the Family Court subject to other provisions of the Act of 1984 and the rules made there under. But then, as per provisions of sub-section (1) of Section 9 of the Family Courts Act of 1984 (for short the Act of 1984), the provisions of CPC are applicable to the proceedings before the Family Court subject to other provisions of the Act of 1984 and the rules made there under. It is to be noticed as per provisions of Section 14 of the Act of 1984, the Family Court may receive as evidence any report, statement, documents, information or the matter that may in its opinion assist it to deal with effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Evidence Act. That apart, by virtue of provisions of sub-section (3) of Section 9, nothing contained in sub-section (1) or sub-section (2) of Section 9 prevents a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by other. In this view of the matter, in the considered opinion of this court, taking into consideration the facts and circumstances of the case, where both the petitions preferred by the rival parties have been consolidated on the request made by the petitioner herein, the discretion exercised by the Family Court in taking the affidavits and certain documents produced by the respondent on record does not warrant interference by this court in exercise of its supervisory jurisdiction. Needless to say that the documents produced by the respondent having been taken on record, the petitioner cannot be denied an opportunity to produce the evidence in rebuttal. Further, the petitioner is not precluded from raising the objection regarding admissibility of the documents produced in evidence on account of the same being beyond the pleadings or otherwise inadmissible in evidence. 8. For the aforementioned reasons, the writ petition is dismissed with the observations as above. No order as to costs.