Full Judgment Text
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CASE NO.:
Appeal (civil) 2660 of 2002
PETITIONER:
VIKAS AGGARWAL
Vs.
RESPONDENT:
ANUBHA
DATE OF JUDGMENT: 12/04/2002
BENCH:
D.P. Mohapatra & Brijesh Kumar
JUDGMENT:
BRIJESH KUMAR, J.
Leave granted.
Heard learned counsel for the parties. This appeal has
been preferred against the judgment and order dated
18.10.2000 passed by Delhi High Court dismissing the appeal
challenging the order by which appellant’s defence was struck
of in the proceeding, suit No.1966 of 1999 pending in Delhi
High Court on the Original side.
The appellant and the respondent were married on
11.05.1999. Thereafter they went to USA. They do not seem
to have pulled on well so much so that the appellant filed a
divorce petition in America as early as on 22.7.1999. The
notice of the said proceedings was served on the respondent.
She however, left America and somehow managed to come
back to India. She filed a suit on 6.9.1999 in Delhi High Court
being Suit No.1966 of 1999 impleading the appellant Shri
Vikas Agarwal as defendant and praying that a decree be
passed declaring that the plaintiff is entitled to live separately,
for maintenance amounting to 1500 dollars (Rs.65,250/-)
expenses pendantalite etc. and for such other, further orders,
directions as the Court would deem fit and proper in the
circumstances of the case, so as to meet the ends of justice.
The learned Single Judge of Delhi High Court passed an
interim order on 5.11.1999 in the following terms:-
"For the present in the interest of justice, and
since no permanent prejudice is likely to be caused to
the Defendants if the hearing in divorce case pending in
the Superior Court, State of Connecticut, U.S.A. is
deferred for a short period, I restrain the Defendant
from proceeding further in the Superior Court, State at
Connecticut, U.S.A. for a period of thirty days from
today."
The appellant however, moved an application on
12.11.1999 for recall of the order dated 5.11.1999. The Court
was later on informed on 16.12.1999 that decree for divorce
had been passed at Connecticut U.S.A. The learned Single
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Judge, on 9.3.2000 passed an order, directing the defendant to
appear in person, under order 10 C.P.C. The defendant
preferred an appeal against the Order dated 9.3.2000 before the
Division Bench which was withdrawn with a statement that an
application will be moved before the learned Single Judge for
recall of the order. It will not be necessary to mention about
many other applications, which have been moved in that
connection from time to time. The fact remains that ultimately
by order dated 24.8.2000, the Court struck of the defence of
the appellant: The operative part of the order reads as under:-
"It is quite clear that despite several
opportunities granted to the defendant to appear
before this Court he has resolutely refused to do
so. The defence of defendant is therefore, struck
of."
An appeal preferred against the said order before the
Division Bench of the High Court has also been dismissed
which order has been impugned in the present appeal.
It appears that need to seek clarification from the
defendant-appellant arose when it came to the notice of the
learned Single Judge of Delhi High Court that on 23rd
November, 1999 the Court in America passed decree of
divorce despite the order of restraint against the defendant
passed on 5.11.1999. The Court seems to have doubts if the
order passed by it was truly communicated to the American
Court since there was no mention at all about that fact in the
order passed by the American Court. The appellant also moved
an application for seeking exemption from appearing in the
Court in Delhi, as he apprehended that on coming to India he
may be arrested in pursuance of the proceedings initiated
against him under Section 498-A of the Indian Penal Code. By
order dated July 3, 2000 the learned Single Judge took care of
the same and provided that the defendant would not be arrested
in pursuance to any complaint or pending FIR filed by the
plaintiff. The defendant was required to appear on August 24,
2000. He again failed to appear in the Court, instead an
affidavit of the Attorney of the appellant in America was filed
stating that he had brought the injunction order to the notice of
the American Court, but the Court had refused to enforce any
restraint order, as Indian Court had no jurisdiction over the
U.S. Court’s proceedings. Such information, it is submitted on
behalf of Respondent, as furnished through affidavit also leads
to the inference that the interim order dated November 5, 1999
was not correctly placed at all before the American Court as
the Delhi High Court had not passed any order putting any
restraint on the American Court to proceed with the matter.
The restraint order was against the defendant, namely the
appellant before us. It is submitted on behalf of the Respondent
that the defendant-appellant should also have moved
appropriate application along with interim order before the
court in America. In this back ground, the learned Single Judge
ordered for presence of the defendant in Court under Order 10
CPC. On non-compliance of the said order, ultimately the
defence was struck of.
Shri Vikas Singh learned counsel appearing for the
appellant has vehemently urged that Order X CPC would not
be applicable at all and the order of the Delhi High Court in
that respect is invalid. Our attention has been brought to Order
X CPC which reads as under:-
Examination of parties by the Court.
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1. Ascertainment whether allegations in
pleadings are admitted or deniedAt the
first hearing of the suit the court shall
ascertain from each party or his pleader
whether he admits or denies such allegations
of fact as are made in the plaint or written
statement (if any) of the opposite party, and as
are not expressly or by necessary implication
admitted or denied by the party against whom
they are made. The court shall record such
admission and denials.
2. Oral examination of party, or companion
of party.-- (1) At the first hearing of the suit,
the court
(a) shall, with a view to elucidating matters in
controversy in the suit examine orally such
of the parties to the suit appearing in person
or present in the court, as it deems fit; and
(b) may orally examine any person, able to
answer any material question relating to the
suit, by whom any party appearing in
person or present in court or his pleader is
accompanied.
(2) At any subsequent hearing the court may
orally examine any party appearing in
person or present in court, or any person,
able to answer any material question relating
to the suit, by whom such party or his
pleader is accompanied.
(3) The court may, if it thinks fit, put in the
course of an examination under this rule
questions suggested by either party.}
3. Substance of examination to be written.
the substance of the examination shall be
reduced to writing by the Judge, and shall
form part of the record.
4. Consequence of refusal or inability of
pleader to answer.(1) Where the pleader
of any party who appears by a pleader or any
such person accompanying a pleader as is
referred to in Rule 2, refuses or is unable to
answer any material question relating to the
suit which the court is of opinion that the
party whom he represents ought to answer,
and is likely to be able to answer if
interrogated in person, the court may
postpone the hearing of the suit to a future
day and direct that such party shall appear in
person on such day.
(2) If such party fails without lawful excuse to
appear in person on the day so appointed, the
court may pronounce judgment against him, or
make such order in relation to the suit as it
thinks fit."
On the basis of the above provision, it is submitted that
a party can be examined under Order X CPC on the first
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hearing of the suit, but that stage has not yet reached in the
present case. It is submitted that first hearing of the suit would
not be any date before a date fixed for settlement of issues. In
that connection, he has placed reliance upon certain decisions
in which first date of hearing has been indicated in reference to
rent control disputes between landlord and tenant. The next
contention is that under Rule 4 of Order X a party may be
required to appear where the counsel or the person
accompanying the pleader refuses to or is unable to answer any
material question relating to the suit. In the present case, it is
submitted that the information sought was furnished to the
Court. There was no refusal on the part of the counsel or the
person accompanying the counsel, namely father of the
defendant appellant to answer the questions. Therefore, it was
not necessary to order for personal attendance of the defendant.
Yet another submission is that question in relation to which a
party is required to be present to be examined should be an
important or material question relating to the suit. It is
submitted that the defendant was not required to give
clarification to any such important or material question. It is
submitted that for the above three reasons the order is bad. Yet
another submission which has been made is that no order of
injunction could be passed against a foreign court in view of
the provisions contained under Section 41(a) & (b) of the
Specific Relief Act.
Shri Shanti Bhushan, learned Senior Counsel appearing
for the respondent submitted that the questions raised by the
learned counsel for the appellant are not relevant, since
undisputedly there is non-compliance of the order passed by
the Court requiring the defendant to be personally present in
the Court. It is submitted that the Section 41 (a) & (b) of the
Specific Relief Act would not bar passing of an order as passed
on 5.11.1999 by the learned Single Judge of Delhi High Court
since such a bar is in relation to the superior Courts i.e. to say
the Courts in India, it would not apply to Courts out side India
and next that the restraint order is against the party namely, the
defendant, who was restrained from proceedings in the matter
for a period of one month. (reliance has been placed on
1987(1) SCC 496 Oil and Natural Gas Commission Vs.
Western Company of North America). It has been held in
an appropriate case, it is open to pass a restraint order against a
party in proceedings pending in foreign courts. It is further
submitted that the learned Single Judge had passed the
injunction order on 5.11.1999 for a period of one month, but
the decree was granted on 23.11.1999. The defendant was
bound by the order and should not have taken any steps in
furtherance of the proceedings pending in American Court. On
the other hand, the decree of divorce shows that the decree was
sought and passed on agreement (no fault divorce) between the
parties which is described as fair and equitable. The
agreement is also stated to be attached with the decree. It is
also to be seen that columns meant for alimony etc. were left
blank. The defendant was restrained by the learned Single
Judge of Delhi High Court, at the instance of the wife, the
respondent, from further proceeding in the divorce case. It is
submitted that this itself shows that the divorce was far from
one on the basis of agreement. In this view of the matter,
learned counsel for the respondent submits that the Court
rightly felt need for personal appearance of the defendant for
clarification. The defendant failed to appear on one ground or
the other and lastly on the ground of apprehension of loosing
job in America.
This Court also gave time to the learned counsel for the
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appellant to find out in case it would be possible for him to
appear before the learned Single Judge of Delhi High Court.
The learned counsel has placed before the Court a letter
received from the appellant addressed to his counsel dated
March 7,2002 expressing his inability to visit India for another
6 to 9 months due to financial and job constraints. He further
informs that he is involved in many mission- critical projects.
Therefore, granting of leave, would also not be possible, to
him. It is also indicated that he has no property, no house, no
bank account, no job and no place to live in India. These facts
are hardly relevant for the purposes of present matter. We need
not go into the other facts and circumstances, which have been
placed by the learned counsel for the respondent to show the
manner in which, within two months of the marriage, the
appellant had filed "no fault divorce" in American Court and
obtained decree on agreement in the teeth of injunction order
dated 5.11.1999 passed by Delhi High Court and the appellant
having abandoned the plaintiff-respondent in America and the
difficulties with which she managed to return to India.
Shri Shanti Bhushan, learned senior counsel
appearing on behalf of the respondent submits that in the facts
and circumstances of the case as indicated above, the learned
Single Judge of the Delhi High Court was quite justified in
requiring the defendant-appellant to personally appear before
the Court for his clarification. It is further submitted that the
affidavit of the counsel for the appellant in America annexed
with the affidavit filed in the trial court was not enough to
clarify the position and the father of the appellant, as found by
the trial court, could not throw further light in the matter,
having not been present during the proceedings in America.
So far the question regarding first date of hearing is concerned,
it is too technical a ground to consider the matter like one in
hand. The decisions which have been relied upon relate to the
disputes between tenant and landlord and while interpreting the
term "first date", the provisions of the Rent Control Statutes
have also been taken into account. It is submitted that inherent
powers of the Court under Section 151 C.P.C. can always be
exercised to advance interests of justice and the technicalities
will have no place in such matters. In this connection a
reference has been made to a decision of this Court reported in
(1966) 3 S.C.R. 856 - M/s. Ram Chand and Sons Sugar
Mills Pvt. Ltd. Versus Kanhaya Lal Bhargava and others.
In this case also the defendant was required to attend the Court
to answer certain questions but flouted the order and did not
appear. Ultimately the defence was struck of. The contention
that inherent powers under Section 151 CPC could not be
exercised was repelled and it was held that there was nothing
in Order XXXIX of the Code which expressly or by necessary
implication precluded the exercise of inherent power of Court
under Section 151 CPC and it was open for the Court to pass a
suitable consequential order under Section 151 CPC as may be
necessary for ends of justice or to prevent the abuse of
process of Court. A reference has also been made to a decision
reported in 1962 Supp. (1) S.C.R. 450 - Manohar Lal
Chopra versus Rai Bahadur Rao Raja Seth Hiralal so as to
indicate the wide scope of Section 151 CPC where as per the
majority view, in the facts and circumstances of the case, it
was open to pass an injunction order under Section 151 CPC
where it may not be in conflict with any provision of Order
XXXIX of the Code or other provision of law. The submission
which has been advanced by the learned counsel for the
respondent is that in the present case the learned trial court was
totally justified in requiring the presence of the defendant and
on his failure to comply with that order the trial court rightly
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struck of defence which order would be perfectly justified in
view of inherent powers of the Court under Section 151 CPC
besides other powers vested in it.
We would like to observe that Order X CPC in an
enabling provision providing that the court at the first hearing
of the suit shall ascertain from each party about their
pleadings. It does not in any manner place any bar on the
powers of the court to seek clarification from any party in an
appropriate case, at any date earlier than one fixed for framing
of issues so as to advance the interest of justice. It would not
be in violation of Order X CPC or in conflict thereof.
Considering the facts and circumstances of the case we agree
with the submission made on behalf of the respondent and find
that the appeal lacks merit so as to call for any interference by
us under Article 136 of the Constitution.
In the result the appeal is dismissed with costs.
.J
(D.P. Mohapatra)
..J
(Brijesh Kumar)
April 12, 2002