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2021 DIGILAW 800 (ALL)

Liaqat Hussain v. Jainab Praveen

2021-08-04

K.J.THAKER, SUBHASH CHAND

body2021
JUDGMENT : 1. Heard Sri Arun K. Singh Deshwal, learned counsel for appellant. 2. Despite service of notice on respondent no.2 none has put in appearance on her behalf. 3. On the basis of submissions of learned counsel for appellant and the admission of defendant-respondent in her written statement filed before the court below, we proceed to decide this appeal at the admission stage even in absence of counsel for respondent. 4. The instant appeal has been filed against the judgment and order dated 23.10.2020 passed by Principal Judge, Family Court, District Amroha in Original Suit No. 623 of 2017 (Liaqat Hussain Vs. Smt. Jainab Parveen), whereby the suit of the plaintiff-appellant for restitution of conjugal rights has been dismissed. 5. The plaintiff-appellant Liaqat Hussain had filed a suit for restitution of conjugal rights against the defendant-respondent Smt. Jainab Parveen with the allegations that she had been residing separately without any reasonable cause and had been depriving of his conjugal relations. 6. The defendant-respondent Smt. Jainab Parveen filed her written statement with the defence that she was subjected to physical and mental cruelty and had fear of life. 7. The learned trial Judge after having framed three issues dismissed the suit of the plaintiff. 8. Learned counsel for appellant has contended that there is sufficient evidence on record and admission of respondent herself that she was willing cohabit with plaintiff and despite the admission of the respondent the learned trial Judge had dismissed the suit of plaintiff. 9. Learned counsel for plaintiff also relied upon the statement of D.w.1 Jainab Parveen. The defendant-respondent although in her examination-in-chief has stated that she was subjected to physical and mental cruelty at the matrimonial house yet in her cross-examination she has categorically stated that after "NIKAH" up to 2016 she had been residing with plaintiff-appellant and she is willing to pass her remaining matrimonial life with appellant-Liaqat. 10. The learned trial Judge has dismissed the suit despite the admission of the defendant-respondent, which is based on perverse finding and against the evidence on record. 11. There is specific provision in Civil Procedure Code wherein Order XII Rule 6 is relevant, which is extracted below: "6. 10. The learned trial Judge has dismissed the suit despite the admission of the defendant-respondent, which is based on perverse finding and against the evidence on record. 11. There is specific provision in Civil Procedure Code wherein Order XII Rule 6 is relevant, which is extracted below: "6. Judgment on Admissions :-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced." 12. As such the suit of plaintiff should have been decreed on the basis of admission of the defendant-respondent. Consequently, the impugned judgment of the trial court needs interference by this Court. 13. Accordingly, the appeal is allowed. The judgment and order dated 23.10.2020 passed by Principal Judge, Family Court, District Amroha in Original Suit No. 623 of 2017 (Liaqat Hussain Vs. Smt. Jainab Parveen) is set aside and quashed. The Original Suit No. 623 of 2017 (Liaqat Hussain Vs. Smt. Jainab Parveen) is decreed.