Anirban Roy, S/o Late Anil Kumar Roy v. Sonali Choudhury @ Sonali Roy, W/o Anirban Roy
2019-03-29
SUJIT NARAYAN PRASAD
body2019
DigiLaw.ai
ORDER : This writ petition is under Article 227 of the Constitution of India, wherein order dated 24.11.2018 passed in Matrimonial Suit No.522 of 2015 (annexure-6) has been challenged, whereby and whereunder petition filed by the plaintiff/respondent/husband under Order 11 Rule 14 of the C.P.C. on 09.08.2018 calling for certain documents, has been rejected. 2. It is the case of the petitioner that a matrimonial divorce suit has been filed by the respondent/wife being Matrimonial Suit No.522 of 2015 before the Family Court, Jamshedpur under Section 13(1) (1a) of the Hindu Marriage Act, 1955 for grant of decree of divorce and for return of Stridhana on the ground of cruelty. 3. The respondent has filed written statement on 29.11.2016, denying the allegations made by the petitioner/respondent/wife, thereafter, the suit reaches to the stage of evidence, the respondent/wife has been examined as P.W.-1 and in para-5 of her cross-examination, she has stated that she is working at Hyderabad and is getting Rs.25,000/-as salary, in para-29, she has stated that during the year 2015 to 2017, she had done job. 4. It is the case of the petitioner that in her cross-examination, the entire fact has not been narrated by her which necessitated the petitioner/husband to invoke the jurisdiction of the trial Court as conferred under Order 11 Rule 14 of the C.P.C. to direct the respondent/wife to submit an affidavit along with complete list of employers where applicant worked from 2015 to till date with copy of offer letters etc. 5. The respondent/wife has filed rejoinder and rebutted the stand taken in the aforesaid petition by stating inter-alia therein, that the said petition has been filed only to harass her, since the said documents is nothing to do with the ground taken for divorce which is on the ground of cruelty. 6. The trial Court after hearing the parties has passed order on 24.11.2018 rejecting the said petition on the ground that the documents as has been directed to be produced by the respondent/wife is not connected with the ground taken for divorce which is on “cruelty”. 7. Mr.
6. The trial Court after hearing the parties has passed order on 24.11.2018 rejecting the said petition on the ground that the documents as has been directed to be produced by the respondent/wife is not connected with the ground taken for divorce which is on “cruelty”. 7. Mr. K.C. Mahato, learned counsel appearing for the petitioner has submitted that the trial Court has committed error in passing the order since, in the ends of justice, the petition filed under Order 11 Rule 14 of the C.P.C. ought to have been allowed, so that the Court before reaching to the rightful conclusion should have perused the documents, since in the cross-examination, the entire correct fact has not been narrated. 8. Having heard learned counsel for the petitioner and after going across the pleading made in the writ petition as also the finding recorded by the trial Court, from which, it is evident that a matrimonial divorce suit has been filed by the respondent/plaintiff/wife and after appearance, the respondent has filed written statement, thereafter, the suit reaches to the stage of evidence, in course thereof, the petitioner has been examined as P.W.-1 and in the cross-examination at para-5, it has been deposed by her that she is getting Rs.25,000/-, working as teacher in Hyderabad and at para-29, she has deposed that she had worked between the year 2015 to 2017. 9. According to the petitioner/respondent/husband, the aforesaid deposition is not correct, therefore, in order to rebut the deposition made by the respondent in the cross-examination, certain documents are necessary to be perused by the trial Court and therefore, a petition has been filed invoking the jurisdiction of the trial Court as conferred under Order 11 Rule 14 of the C.P.C. on 09.08.2018 seeking therein the applicant/wife be directed to submit an affidavit along with the following details:- (i.) Complete list of employers where applicant worked from 2015 till date. (ii.) Below records of each employers. (a) Name and complete address of employers. (b) Duration of service (Date of joining and last working day). (c) Copy of offer letter. (d) Copy of Registration letter. (e) Copy of Relieving letter/Experience Certificate. (f) Copy of first and last salary slip. (iii) Latest copy of Resume of the applicant submitted to the School in Hyderabad during interview.
(a) Name and complete address of employers. (b) Duration of service (Date of joining and last working day). (c) Copy of offer letter. (d) Copy of Registration letter. (e) Copy of Relieving letter/Experience Certificate. (f) Copy of first and last salary slip. (iii) Latest copy of Resume of the applicant submitted to the School in Hyderabad during interview. (iv) Complete details of all educational courses undertaken during the period of 1st April, 2015 till date (Name of course, Institution, Duration of course, Date of admission, Fees Receipts paid towards the course, copy of course Certificate upon completion). (v) Applicant to submit details of all her Bank accounts and Bank Account statements from the period of 1st April, 2015 till date. 10. The trial Court after hearing the parties in aforesaid application has rejected the same, by coming to the conclusion that these documents are not in any way related with the ground taken for grant of decree of divorce, i.e. the “cruelty” and these documents is no way related with the said cruelty. 11. The submission advanced by the learned counsel for the petitioner that these documents are necessary to be seen for proper adjudication of the issue, if the petitioner contention would be accepted, it will be said to use the Court as instrument in proving or disproving the case while the provision of Sections 101 and 103 of the Indian Evidence Act, 1872 stipulates that if a plea is taken by any of the parties before any proceeding, it is onus upon the parties to prove or disprove. 12. Here in the instant case, the same case is made out by the petitioner that in the cross-examination, the entire narration is not correct and for rebuttal of the same, these documents are necessary, the question herein is that the trial is to depend upon the ocular and documentary evidence and if the party is deposing as witness, his or her submission is to be cross-examined by other side, it can be done orally or by producing the documents marking it as exhibits, meaning thereby, it is onus upon the party to prove or disprove the submission deposed by the witnesses in course of the trial. 13.
13. Herein the case of divorce has been made out on the ground of cruelty and cruelty has got no relation with the educational career of the petitioner/plaintiff/wife and therefore, the conclusion which has been arrived at by the trial Court that these documents no where related ground of the original suit, is suffers from no infirmity. 14. So far as the power conferred under Order 11 Rule 14 of the C.P.C. is concerned, the said power provides that it is the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just. 15. This provision stipulates that it is the Court, if desires for adjudication of the issue warranting certain documents can direct the party to produce it and the said provision no where refers that the power conferred under Order 11 Rule 14 of the C.P.C. will be exercised on the behest of the petition filed by the party and even accepting the submission that party can invoke the jurisdiction which lies with the Court for accepting the same by taking the fact into consideration, as to whether these documents are necessary or not. 16. Admittedly, the suit for divorce has been filed on the ground of cruelty and the document pertains to the educational course or earning of the plaintiff/wife as a teacher and therefore, the Court has came to right conclusion saying therein that these documents are no where related with the ground taken by the respondent/plaintiff/wife. 17. In view thereof, this Court finds no error in the said order and therefore, refrain itself in exercising the power conferred under Article 227 of the Constitution of India on the ground that there is no error apparent on the face of record and also considering the fact that the power conferred under Article 227 of the Constitution of India, is very limited as has been held by the Hon’ble Apex Court in the case of Shalini Shyam Shetty Vrs.
Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. i. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. ii. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. iii. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. iv. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions.
iv. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. v. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. vi. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. vii. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. 18.
vii. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. 18. In view of the ratio laid down hereinabove and taking into consideration the factual aspect of the matter as narrated above, the instant writ petition fails and it is accordingly, dismissed.