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2021 DIGILAW 3346 (MAD)

A. S. Bilal v. A. Raisa Nasrin

2021-11-30

G.JAYACHANDRAN, S.VAIDYANATHAN

body2021
JUDGMENT : S.Vaidyanathan, G.Jayachandran, JJ. (Prayer: Civil Miscellaneous Appeal filed under Section 43(1)(c) of the Civil Procedure Code, to set aside the order of the learned Family Court Judge, Sivagangai in I.A.No.5 of 2019 in GWOP No.1 of 2016, dated 23.01.2020 and allow the Civil Miscellaneous Appeal and restore the I.A.No.5/2019 in GWOP.No.1 of 2016 on the file of the Family Court, Sivagangai and direct the trial Court to dispose the petition within stipulated period and without insisting the personal appearance of the appellant except for the necessary hearing.) 1. The Civil Miscellaneous Appeal is filed to set aside the order of the learned Family Court Judge, Sivagangai, passed in I.A.No.5 of 2019 in GWOP No.1 of 2016, dated 23.01.2020 and to restore GWOP.No.1 of 2016 on the file of the Family Court, Sivagangai. 2. The appellant herein is the father of the minor girl Aisha Imaya (Date of Birth 07.10.2010). The appellant and the respondent herein got married on 27.12.2009. The female child Aisha Imaya was born to them on 07.10.2010. The marital life entered into turbulent phase, which has lead to dissolution of marriage, in the form of Khula divorce, which is prevalent and acceptable in the Muslim Community. The divorce has come into effect from 21.07.2017. Even prior to this, there has been series of cases filed by the appellant and the respondent against each other and their family members both in the criminal Court as well as in the family Court. 3. The appellant and his father being a Lawyer, practicing at Chennai and there was no dearth of litigation between the parties. 4. Before adverting to the merits of the appeal, the facts, which are essential and relevant, are extracted below:- (i) The appellant herein filed GWOP.No.1 of 2016, before the Family Court at Sivagangai, seeking custody of the minor child, under Section 7 of the Guardian and Wards Act. When the matter was posted for enquiry on 09.02.2017, 20.02.2017, 01.03.2017, 07.03.2017, 16.03.2017, 23.03.2017 and 24.03.2017, the appellant herein, who is the petitioner in the GWOP did not appear. Therefore, the Family Court, recording the same dismissed the GWOP for default. (ii) Aggrieved by that, the appellant herein filed a restoration petition with a delay of 118 days before the trial Court. Therefore, the Family Court, recording the same dismissed the GWOP for default. (ii) Aggrieved by that, the appellant herein filed a restoration petition with a delay of 118 days before the trial Court. Since his petition to condone the delay was not numbered by the Registry of the trial Court, he preferred a Civil Revision Petition in C.R.P(PD)(MD)No.2294 of 2017, before this Court, seeking a direction to the Family Court, Sivagangai, to number his unnumbered petition and to condone the delay of 118 days in preferring the restoration petition. (iii) The Learned Judge of this High Court, vide order dated 24.01.2018 found that the condone delay petition was not numbered because the appellant herein, as the petitioner, did not present in person to re-present the application, which is the usual procedures adopted in Family Courts, as prescribed under the Family Courts Act. Therefore, it disposed the Civil Revision Petition in C.R.P(PD)(MD)No.2294 of 2017 filed by the appellant herein on 24.01.2018 with the following directions :- “7. Therefore, the petitioner is hereby directed to present the papers, before the Family Court, Sivagangai, in person, as per the settled law, within a period of two weeks from the date of receipt of a copy of this order. In such filing, the learned Judge, Family Court, Sivagangai, shall consider and dispose of the same, as expeditiously as possible, in the manner known to law. “(iv) Thereafter, the delay was condoned, GWOP was restored on file and taken up for trial. However, the appellant again was not inclined to get along with the trial and the matter was adjourned time and again in spite of the direction of this Court to the trial Court that the GWOP should disposed of as expeditiously as possible. Under such circumstances, the Family Court, Sivagangai, after granting several adjournments recording the fact that the petitioner not ready adjourned the case to 20.02.2019 indicating that there shall be no further adjournment (NFA). On 20.02.2019, the appellant herein was present and the proceedings of the trial Court, as recorded on 20.02.2019, reads as below:- “Both parties present. Petitioner was examined as P.W.1 in chief. Ex.P1 to Ex.P11 marked. For cross of P.W.1 at request call on 2.4.2019. Id/- A.S.Judge Family Court, Sivagangai. However, on 02.04.2019, the appellant herein was absent. Therefore, the trial Court has recorded as below:- Petitioner called absent. Petitioner was examined as P.W.1 in chief. Ex.P1 to Ex.P11 marked. For cross of P.W.1 at request call on 2.4.2019. Id/- A.S.Judge Family Court, Sivagangai. However, on 02.04.2019, the appellant herein was absent. Therefore, the trial Court has recorded as below:- Petitioner called absent. Counsel for the petitioner reported that he is withdrawing his Vakalat of the petitioner and endorsed to that effect. In view of endorsement made by the counsel Thiru.Kumar, the permission already granted to Advocate Thiru.Kumar to appear on behalf of the petitioner is cancelled. Respondent called absent. Counsel for the respondent represented for the respondent and he reported ready for cross examination of P.W.1. Case was kept passed over for the appearance of the petitioner / P.W.1 None has come forward to represent on behalf of the petitioner even this case was kept passed over for sufficient time. The absence of the petitioner / P.W.1 has not been justified by anybody. Already this petitioner / P.W.1 was irregular in his appearance and already this case was dismissed for default. Later on filing petitions, this case was restored belatedly. Now this case is pending for cross examination of petitioner / P.W.1. Due to the absence of the petitioner / P.W.1 the progress of case is very much affected. No sufficient reason to grant adjournment for the non appearance of petitioner / P.W.1. Mechanical adjournment cannot be granted. Counsel for the respondent orally represented that the petitioner is willfully avoiding the cross examination and willfully changing many Advocates to defeat the progress of this case. Records perused. Order passed. Vide detailed order enclosed herewith separately, this petition is dismissed for default. No costs. Id/- A.S.Judge, Family Court, Sivagangai.” (v) Under said circumstances, the appellant herein had filed I.A.No.5 of 2019 to restore the Guardian O.P.No.1 of 2016, which was dismissed for default. This restoration petition was filed with a delay of 17 days. Hence, Section 5 of the Limitation Act was resorted to and an application to condone the delay was filed along with restoration petition. The trial Court after allowing the condone delay petition has taken up the restoration petition for consideration on merits. (vi). On hearing both sides, the trial Court has found that the allegation of the appellant against the erstwhile counsel Thiru T.Kumar that he has withdrawn his representation without informing him is only a ruse to protract the proceedings. The trial Court after allowing the condone delay petition has taken up the restoration petition for consideration on merits. (vi). On hearing both sides, the trial Court has found that the allegation of the appellant against the erstwhile counsel Thiru T.Kumar that he has withdrawn his representation without informing him is only a ruse to protract the proceedings. The appellant, who has sought for custody of the minor girl through the GWOP has not envisaged any interest in conducting the case, which was ripe for trial since 09.02.2017, hence, dismissed the O.P. for default. (vii). The records will clearly show that, on 20.02.2019, the petitioner has filed a proof affidavit and marked 11 exhibits. Case was adjourned to 02.04.2019 for cross-examination of the appellant. The appellant was not present. His counsel has reported before the Court that he is withdrawing his appearance. 5. Be that as it may, the fact remains that the appellant herein has made an attempt in the year 2018 to get his GWOP filed before the Sivagangai Court to be transferred to the Family Court, Madurai, but had withdrawn the same on 03.01.2019. Therefore, when the GWOP was dismissed for default, there was no impediment for the appellant / petitioner to appear before the Court and subject himself for cross-examination, which he did not chose to do. Therefore, the trial Court taking note of the conduct of the appellant herein like frequent change of counsel at the crucial stage only to get adjournment and allowing the petition to be dismissed for default, later file application for restoration has forced the trial Court to dismiss the restoration petition, as devoid of merits, trial Court has observed that the appellant, being an advocate by profession, should not take advantage of his profession and protract the proceedings. Further, it has reminded itself that the Court cannot mechanically adjourn the case showing concession for the appellant for he being a practicing advocate. 6. This appeal, which is directed against the findings of the trial Court is on the following grounds:- “1. The order of the learned Judge is contrary to law and facts. 2. The learned Judge has failed to see that advocate on record had withdrawn the vakalath without informing to the petitioner. 3. The learned Judge has failed to see that advocate on record had not informed the withdrawal vakalath to the petitioner. 4. The order of the learned Judge is contrary to law and facts. 2. The learned Judge has failed to see that advocate on record had withdrawn the vakalath without informing to the petitioner. 3. The learned Judge has failed to see that advocate on record had not informed the withdrawal vakalath to the petitioner. 4. The learned Judge ought to have issued notice to the petitioner after the withdrawal of vakalath by the advocate of record. 5. The learned Judge has failed to see that there will not any prejudice caused to the respondent in allowing the restore petition. 6. The learned judge has passed the order without giving opportunity to the petitioner is against the natural justice.” 7. The learned counsel appearing for the appellant referred to various litigations between the parties pending before the Courts and the conduct of the respondent. Equally, the learned counsel appearing for the respondent brought to the notice of this Court the communication of the appellant herein, which are of bad taste bordering obscenity and vulgarity. 8. This Court being conscious of the fact that the appeal before us is to test whether the order of the trial Court in dismissing the restoration petition is based on proper appreciation of facts and justifiable, proceed further to scrutinize the facts and law involved. 9. The case of the appellant is that the respondent herein taken away the child in the year 2015 and she is living with her parents at Ilayankudi and now she has secured a job as a teacher. It is also an admitted fact that the female child is about 11 years old and she has some mental illness and taking treatment. In this background, the GWOP has been initiated by the appellant, the father of the minor child, in the year 2016. However, he is not serious in pursuing the matter for getting the custody of the child or even visitation right. 10. Earlier, this Court allowed his petition for restore the case, which was dismissed for default and the reason for dismissing his O.P for non prosecution has clearly stated out by the trial Court at paragraph No.3 of the order dated 24.01.2018, which was also relied and extracted by the High Court when the said order was challenged in C.R.P(PD)(MD)No.2294 of 2017. For sake of convenience, the operative portion of the earlier order in the petition filed by the appellant is extracted below:- “3. Reiterating the facts of the case, the learned counsel for the petitioner would submit that the present of the petitioner in representing the petition is unwarranted. The learned Judge ought to have numbered the petition, without insisting the presence of the petitioner. Therefore, he prays for allowing the present revision petition.” 11. The said order was interfered by the High Court not on merits, but to afford an opportunity to the appellant herein to pursue his case. But, unfortunately, even after the restoration of his GWOP., and affording an opportunity to pursue his case on merits, the appellant has not chosen to avail that opportunity, but continue to indulge in dilating tactics. 12. The learned counsel appearing for the appellant while making his submission stated that prior to 18.01.2018, for nearly 4 hearings, the respondent herein was not present, while the appellant was present and therefore, the appellant cannot be faulted for delaying the proceedings. For the convenience of this Court, the appellant has filed the diary extract in his typed set wherein this Court finds that though on the earlier hearing dates viz., 11.10.2018, 22.10.2018, 14.11.2018 and 20.12.2018, the respondent was not absent, the appellant, who was present, also was not ready for enquiry, which has been candidly recorded by the trial Court. In fact, on 14.11.2018, the trial Court has specifically stated that the petitioner is not ready for enquiry. For petitioner side enquiry as last chance and finally time extended till 20.12.2018. No further adjournments will be granted. Inspite of such conditional adjournment, on 20.12.2018 also, the appellant was not ready and the same recorded by the trial Court as follows :- “Petitioner present. Respondent called absent. Petitioner not ready for enquiry. Repeated hearings. As last chance and finally time extended for enquiry by 18.01.2019.” 13. On 18.01.2019, the appellant herein has changed his counsel and sought permission of the Court to get the assistance of the new counsel by name T.Kumar. The new counsel sought further time and on his request, the trial Court has adjourned the case to 20.02.2019 on condition that there will be no further adjournment (NFA). On 20.02.2019, both parties were present. The appellant was examined as P.W.12 in chief. 11 exhibits were marked. The new counsel sought further time and on his request, the trial Court has adjourned the case to 20.02.2019 on condition that there will be no further adjournment (NFA). On 20.02.2019, both parties were present. The appellant was examined as P.W.12 in chief. 11 exhibits were marked. For cross of P.W.1, at request, it was adjourned to 02.04.2019. In the said circumstance, when the matter was called on 02.04.2019 the petitioner remained absent and therefore, he has invited for himself the order of dismissal. The trial Court while dismissing the GWOP has recorded the reason as stated supra. 14. The learned counsel for the appellant persuade this Court that the appellant, as a father, is entitled for custody of the child and his petition has to be restored in the interest of the minor girl. 15. This Court after perusing the voluminous documents pertaining to the pleadings in various cases between the parties and the SMS correspondence, which clearly exhibit the ugly mind of the appellant come to an irresistible conclusion that he is unfitness to be the guardian of the minor girl, aged 11 years. Therefore, even in the interest of the minor, this Court, as paren patriae is of the view that the restoration of the GWOP filed by the appellant herein for the custody of the minor girl aged 11 years, deserves to be dismissed or else the appellant will be unabatedly causing harassment and nuisance in the life of the respondent and the minor girl. Hence, the Civil Miscellaneous Appeal is dismissed. No costs.