Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C M (MAIN) NO.369/2009
Date of Decision: January 06, 2010
MAMEET KAUR ANAND ….. Petitioner
Through: Mr. Ketan Malhotra, Adv.
versus
PAWANDEEP SINGH ….. Respondent
Through: Mr. Vijay K. Sondhi, Adv.
with Mr. Saleem Hasan,
Adv. with Respondent in
person.
%
CORAM:
HON’BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not?
(3) Whether the judgment should be reported
in the Digest ?
J U D G M E N T
ARUNA SURESH, J. (Oral)
1. Respondent Pawandeep Singh has filed a petition
for divorce under Section 13 (1) (i-a) of the Hindu
Marriage Act (hereinafter referred to as „Act‟). In
pursuance of the summons received by the
CM(M) No.369/2009 Page 1 of 13
Petitioner Manmeet Kaur, appearance was put by
her in the court on 11.12.2008 through her attorney
Anil Kansal. However, petitioner failed to file her
written statement on 29.01.2009 and thereafter.
The trial court vide its impugned order dated
18.03.2009 struck off the defence of the petitioner
for non filing of the written statement within the
period of limitation. Aggrieved by the said order of
the trial court, this petition has been filed.
2. Mr. Ketan Malhotra, learned counsel for the
Petitioner has submitted that Petitioner could not
file her written statement within the period of
limitation and also within the extended time
granted by the court because, her passport was
kept in the High Court of Justice, Family Division
London, UK in pursuance of the location order
passed by the said Court in the petition filed by the
respondent seeking return of the minor children to
the jurisdiction of India. For want of passport,
Notary Public was not authorized to attest the
CM(M) No.369/2009 Page 2 of 13
Affidavit as the same was required to be produced
before him by the Petitioner as per the local system
prevalent in UK. He has further submitted that
under the circumstances, trial court did not exercise
its power within the ambit of law when it struck off
the defence of the Petitioner vide impugned order
dated 18.03.2009.
3. Mr. Vijay Sondhi, learned counsel for the respondent
has submitted that this petition is signed by the
Petitioner herself, though the enclosed Affidavit is
that of Mr. Pankaj Malik Advocate. The Court had
permitted the Petitioner to represent her through
her attorney Mr. Anil Kansal. The Court even
permitted him to file the written statement on
behalf of the Petitioner. Despite this, Petitioner
failed to comply with the directions of the Court and
failed to file the written statement within the period
of limitation. He has further argued that any other
identification document could have been produced
before the Notary Public in UK, beside, passport
CM(M) No.369/2009 Page 3 of 13
like; driving licence, national identity card, the
armed forces pass, firearms licence, other
government issued ID, residential permit and
benefit book or original notification letter from
Benefits Agency along with the proof of residence. If
the Petitioner was incapacitated in producing her
passport before the Notary Public for attestation of
the Affidavit, she could have produced any of the
aforesaid documents before him for identification
purposes. He has urged that Petitioner has been
adopting delaying tactics with ulterior motives to
delay the proceedings of the divorce petition.
4. On 3.10.2008, the trial court, on receipt of fresh
petition, was pleased to issue notice to the
respondent, returnable on 11.12.2008 on filing of
PF, RC, courier, as well as through e-mail. On
11.12.2008 Mr. Anil Kansal appeared before the
Court as an authorized power of attorney holder of
the respondent and sought an adjournment for filing
the vakalatnama of the counsel engaged by the
CM(M) No.369/2009 Page 4 of 13
Respondent. The Court was pleased to adjourn the
case for 29.01.2009 for filing of vakalatnama as well
as written statement. On 29.01.2009 none had
appeared on behalf of the Respondent at the call
but at 11:30 AM Mr. Ketan Malhotra Advocate who
is also representing the Petitioner in this petition
put in appearance before the Court and filed his
vakalatnama. The matter was listed for 19.02.2009.
On 19.02.2009 another adjournment was sought for
filing the written statement as the same had not
been received from the Petitioner from UK. Mr.
Malhotra informed the Court that written statement
was sent to the Petitioner by e-mail on 16.02.2009.
In the interest of justice, Court adjourned the matter
to 18.03.2009 with costs of Rs.500/- for the delay
with the directions to the Petitioner to file her
written statement with copy to the Respondent in
the meanwhile. On 18.03.2009, when written
statement was not filed by the Petitioner, following
order was passed by the trial court:-
CM(M) No.369/2009 Page 5 of 13
“HMA No.534/08
18.3.2009
Present: Shri Saleem Hasan,
counsel for the Petitioner.
Shri Pankaj Malik, counsel
for the respondent.
Cost of Rs.500/- paid by
Ld.counsel for respondent to
Ld.counsel for the petitioner who has
accepted the same.
WS not filed even today. The
Ld.counsel for the respondent seeks
adjournment submitting that certain
documents are yet to be received
from the respondent who is in London.
Counsel for the petitioner is opposing
adjournment being sought on behalf
of the respondent. Appearance was
put in on behalf of the respondent on
11.12.2008. WS is available with the
Ld.counsel for the respondent, but it
does not even bear the signatures of
the respondent. Ld.counsel further
submits that WS sent to the
respondent is yet to be got attested
from Notary Public in London. On
19.2.2009, it was submitted that WS
had been sent to the respondent by E-
mail. Sufficient time has been given to
respondent but WS has not yet been
filed.
Since sufficient time has already
expired, but WS has not yet been filed
this court has no option but to order
for striking of defence of the
CM(M) No.369/2009 Page 6 of 13
respondent. It is ordered accordingly.
Be put up on 29.4.2009 for
evidence of the petitioner.
Sd/-
ADJ/01/West/Delhi
18.3.2009”
5. As per the provisions contained under order VIII
Rule 1 CPC, Petitioner was required to file her
written statement within 30 days from the date of
service of summons on her. The Court had the
power to allow the Petitioner to file her written
statement on some other day to be fixed by the
court, for reasons to be recorded in writing.
However, the Court could not have extend this
period beyond 90 days from the date of service of
summons. The date of service of summons upon
the Petitioner is not known. However, the
appearance was made by the Petitioner in the Court
on 11.12.2008 through her authorized power of
attorney holder, Anil Kansal. Petitioner was required
to file her written statement within 30 days which
ended on 10.01.2009. It seems that Court granted
CM(M) No.369/2009 Page 7 of 13
some more time to the Petitioner to file her written
statement and vakalatnama when it fixed the case
for 29.01.2009 for filing of written statement. This
period was further extended by the Court on
29.01.2009 to 19.02.2009 when the Petitioner failed
to appear on the first call and subsequently her
Advocate filed his vakalatnama in the Court. On
19.02.2009, another adjournment was sought. For
the reasons stated in the order, Court further
granted time to the Petitioner to file her written
statement before 18.03.2009 and burdened the
Petitioner with costs of Rs.500/- for delay in filing
the written statement. Despite this, Petitioner failed
to file her written statement. The Court, therefore,
granted more than ninety days to the Petitioner to
file her written statement.
6. On 18.03.2009, counsel sought adjournment on the
grounds that some documents were yet to be
received from the Petitioner who was in London and
also that the written statement sent to the
CM(M) No.369/2009 Page 8 of 13
Petitioner was yet to be got attested from the
Notary Public. Nowhere, counsel for the Petitioner
informed the trial court that passports of the
Petitioner and the children were deposited in the
High Court of Justice, Family Division in pursuance
of the location order made on 22.09.2008. It is for
the first time that in this petition this ground has
been raised by the Petitioner. Be that as it may,
admittedly, Petitioner never moved the High Court
of Justice, Family Division to release her passport
temporarily for the purpose of getting her written
statement and Affidavit attested by the Notary
Public as it was needed for identification purpose.
As per the photocopy of the Notary Public Norwich,
Margaret Masterson, containing information about
the Notary Public, any of the following documents
can be produced before the Notary Public for
identification:-
“Each person whose signature they
are to certify must provide one of the
following original identification
documents at the time of the
CM(M) No.369/2009 Page 9 of 13
appointment.
Valid passport
Driving licence (paper copy with
photo card)
National identity card (EEA state
members)
An armed forces pass (with photo
and signature)
Firearms licence (with photo and
signature)
Other government issue ID (with
photo and signature)
Residence permit
Benefit book or original notification
letter from Benefits Agency.”
7. Thus, it is clear that if Petitioner was not in
possession of the passport having been deposited in
the High Court of Justice, Family Division, she could
have produced any of the other documents before
the Notary Public for identification to enable him to
attest her Affidavit and written statement. However,
she failed to do the needful.
8. This petition is signed and attested by the Petitioner
herself, though the accompanying Affidavit is that
of Pankaj Malik, her counsel. If she could sign the
petition, she could have also sworn in Affidavit to be
CM(M) No.369/2009 Page 10 of 13
annexed with the petition. The vakalatnama
executed by the Petitioner is also signed by her. If
the petitioner could sign his petition and also the
vakalatnama executed in favour of her Advocate,
she could have also signed the written statement
and the affidavit to be annexed with the same.
However, no explanation is forthcoming from the
petition as to why and under what circumstances
when she could sign this petition, she could not sign
the written statement and the affidavit. Her
signatures appearing on the petition before me and
the vakalatnama is not notarized by the Notary
Public, London, UK nor her signatures are identified
and attested by the Indian Consulate at London.
Under these circumstances, presumption would be
that petition was here in India when she signed this
petition and the vakalatnama. In case, she had not
visited the India, then there is no proper petition
before this Court.
9. Besides, the trial court had permitted the Petitioner
CM(M) No.369/2009 Page 11 of 13
to file her written statement, signed by attorney or
the Advocate, as the case may be, annexed with an
Affidavit sworn in by her Advocate. Under these
circumstances, nothing stopped the Petitioner to file
her written statement annexed with the Affidavit of
her lawyer or attorney, as the case may be, within
the period of limitation or even during the extended
period.
10. It seems that Petitioner has been playing for time
with a view to prolong the disposal of the petition,
as number of cases are pending adjudication inter
se the parties. It is pertinent that even with this
petition which was filed on 25.04.2009 and refiled
on 27.04.2009, Petitioner did not care to file the
written statement and her affidavit duly attested by
the Notary Public. Conduct of the Petitioner, under
the circumstances, clearly reflect that at no point of
time Petitioner took any steps to get her written
statement and affidavit prepared and attested by
the Notary Public.
CM(M) No.369/2009 Page 12 of 13
11. As pointed out above, when the Court had
permitted the Petitioner to file her written
statement through her attorney, she could have
done the needful at the earliest but she failed for
the same for the reasons best known to her. Hence,
I find no merits in the petition, the same is
accordingly dismissed.
12. CM APPL. No.5978/2009 for stay also stands
dismissed.
(ARUNA SURESH)
JUDGE
JNAUARY 06, 2010
vk
CM(M) No.369/2009 Page 13 of 13
+ C M (MAIN) NO.369/2009
Date of Decision: January 06, 2010
MAMEET KAUR ANAND ….. Petitioner
Through: Mr. Ketan Malhotra, Adv.
versus
PAWANDEEP SINGH ….. Respondent
Through: Mr. Vijay K. Sondhi, Adv.
with Mr. Saleem Hasan,
Adv. with Respondent in
person.
%
CORAM:
HON’BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not?
(3) Whether the judgment should be reported
in the Digest ?
J U D G M E N T
ARUNA SURESH, J. (Oral)
1. Respondent Pawandeep Singh has filed a petition
for divorce under Section 13 (1) (i-a) of the Hindu
Marriage Act (hereinafter referred to as „Act‟). In
pursuance of the summons received by the
CM(M) No.369/2009 Page 1 of 13
Petitioner Manmeet Kaur, appearance was put by
her in the court on 11.12.2008 through her attorney
Anil Kansal. However, petitioner failed to file her
written statement on 29.01.2009 and thereafter.
The trial court vide its impugned order dated
18.03.2009 struck off the defence of the petitioner
for non filing of the written statement within the
period of limitation. Aggrieved by the said order of
the trial court, this petition has been filed.
2. Mr. Ketan Malhotra, learned counsel for the
Petitioner has submitted that Petitioner could not
file her written statement within the period of
limitation and also within the extended time
granted by the court because, her passport was
kept in the High Court of Justice, Family Division
London, UK in pursuance of the location order
passed by the said Court in the petition filed by the
respondent seeking return of the minor children to
the jurisdiction of India. For want of passport,
Notary Public was not authorized to attest the
CM(M) No.369/2009 Page 2 of 13
Affidavit as the same was required to be produced
before him by the Petitioner as per the local system
prevalent in UK. He has further submitted that
under the circumstances, trial court did not exercise
its power within the ambit of law when it struck off
the defence of the Petitioner vide impugned order
dated 18.03.2009.
3. Mr. Vijay Sondhi, learned counsel for the respondent
has submitted that this petition is signed by the
Petitioner herself, though the enclosed Affidavit is
that of Mr. Pankaj Malik Advocate. The Court had
permitted the Petitioner to represent her through
her attorney Mr. Anil Kansal. The Court even
permitted him to file the written statement on
behalf of the Petitioner. Despite this, Petitioner
failed to comply with the directions of the Court and
failed to file the written statement within the period
of limitation. He has further argued that any other
identification document could have been produced
before the Notary Public in UK, beside, passport
CM(M) No.369/2009 Page 3 of 13
like; driving licence, national identity card, the
armed forces pass, firearms licence, other
government issued ID, residential permit and
benefit book or original notification letter from
Benefits Agency along with the proof of residence. If
the Petitioner was incapacitated in producing her
passport before the Notary Public for attestation of
the Affidavit, she could have produced any of the
aforesaid documents before him for identification
purposes. He has urged that Petitioner has been
adopting delaying tactics with ulterior motives to
delay the proceedings of the divorce petition.
4. On 3.10.2008, the trial court, on receipt of fresh
petition, was pleased to issue notice to the
respondent, returnable on 11.12.2008 on filing of
PF, RC, courier, as well as through e-mail. On
11.12.2008 Mr. Anil Kansal appeared before the
Court as an authorized power of attorney holder of
the respondent and sought an adjournment for filing
the vakalatnama of the counsel engaged by the
CM(M) No.369/2009 Page 4 of 13
Respondent. The Court was pleased to adjourn the
case for 29.01.2009 for filing of vakalatnama as well
as written statement. On 29.01.2009 none had
appeared on behalf of the Respondent at the call
but at 11:30 AM Mr. Ketan Malhotra Advocate who
is also representing the Petitioner in this petition
put in appearance before the Court and filed his
vakalatnama. The matter was listed for 19.02.2009.
On 19.02.2009 another adjournment was sought for
filing the written statement as the same had not
been received from the Petitioner from UK. Mr.
Malhotra informed the Court that written statement
was sent to the Petitioner by e-mail on 16.02.2009.
In the interest of justice, Court adjourned the matter
to 18.03.2009 with costs of Rs.500/- for the delay
with the directions to the Petitioner to file her
written statement with copy to the Respondent in
the meanwhile. On 18.03.2009, when written
statement was not filed by the Petitioner, following
order was passed by the trial court:-
CM(M) No.369/2009 Page 5 of 13
“HMA No.534/08
18.3.2009
Present: Shri Saleem Hasan,
counsel for the Petitioner.
Shri Pankaj Malik, counsel
for the respondent.
Cost of Rs.500/- paid by
Ld.counsel for respondent to
Ld.counsel for the petitioner who has
accepted the same.
WS not filed even today. The
Ld.counsel for the respondent seeks
adjournment submitting that certain
documents are yet to be received
from the respondent who is in London.
Counsel for the petitioner is opposing
adjournment being sought on behalf
of the respondent. Appearance was
put in on behalf of the respondent on
11.12.2008. WS is available with the
Ld.counsel for the respondent, but it
does not even bear the signatures of
the respondent. Ld.counsel further
submits that WS sent to the
respondent is yet to be got attested
from Notary Public in London. On
19.2.2009, it was submitted that WS
had been sent to the respondent by E-
mail. Sufficient time has been given to
respondent but WS has not yet been
filed.
Since sufficient time has already
expired, but WS has not yet been filed
this court has no option but to order
for striking of defence of the
CM(M) No.369/2009 Page 6 of 13
respondent. It is ordered accordingly.
Be put up on 29.4.2009 for
evidence of the petitioner.
Sd/-
ADJ/01/West/Delhi
18.3.2009”
5. As per the provisions contained under order VIII
Rule 1 CPC, Petitioner was required to file her
written statement within 30 days from the date of
service of summons on her. The Court had the
power to allow the Petitioner to file her written
statement on some other day to be fixed by the
court, for reasons to be recorded in writing.
However, the Court could not have extend this
period beyond 90 days from the date of service of
summons. The date of service of summons upon
the Petitioner is not known. However, the
appearance was made by the Petitioner in the Court
on 11.12.2008 through her authorized power of
attorney holder, Anil Kansal. Petitioner was required
to file her written statement within 30 days which
ended on 10.01.2009. It seems that Court granted
CM(M) No.369/2009 Page 7 of 13
some more time to the Petitioner to file her written
statement and vakalatnama when it fixed the case
for 29.01.2009 for filing of written statement. This
period was further extended by the Court on
29.01.2009 to 19.02.2009 when the Petitioner failed
to appear on the first call and subsequently her
Advocate filed his vakalatnama in the Court. On
19.02.2009, another adjournment was sought. For
the reasons stated in the order, Court further
granted time to the Petitioner to file her written
statement before 18.03.2009 and burdened the
Petitioner with costs of Rs.500/- for delay in filing
the written statement. Despite this, Petitioner failed
to file her written statement. The Court, therefore,
granted more than ninety days to the Petitioner to
file her written statement.
6. On 18.03.2009, counsel sought adjournment on the
grounds that some documents were yet to be
received from the Petitioner who was in London and
also that the written statement sent to the
CM(M) No.369/2009 Page 8 of 13
Petitioner was yet to be got attested from the
Notary Public. Nowhere, counsel for the Petitioner
informed the trial court that passports of the
Petitioner and the children were deposited in the
High Court of Justice, Family Division in pursuance
of the location order made on 22.09.2008. It is for
the first time that in this petition this ground has
been raised by the Petitioner. Be that as it may,
admittedly, Petitioner never moved the High Court
of Justice, Family Division to release her passport
temporarily for the purpose of getting her written
statement and Affidavit attested by the Notary
Public as it was needed for identification purpose.
As per the photocopy of the Notary Public Norwich,
Margaret Masterson, containing information about
the Notary Public, any of the following documents
can be produced before the Notary Public for
identification:-
“Each person whose signature they
are to certify must provide one of the
following original identification
documents at the time of the
CM(M) No.369/2009 Page 9 of 13
appointment.
Valid passport
Driving licence (paper copy with
photo card)
National identity card (EEA state
members)
An armed forces pass (with photo
and signature)
Firearms licence (with photo and
signature)
Other government issue ID (with
photo and signature)
Residence permit
Benefit book or original notification
letter from Benefits Agency.”
7. Thus, it is clear that if Petitioner was not in
possession of the passport having been deposited in
the High Court of Justice, Family Division, she could
have produced any of the other documents before
the Notary Public for identification to enable him to
attest her Affidavit and written statement. However,
she failed to do the needful.
8. This petition is signed and attested by the Petitioner
herself, though the accompanying Affidavit is that
of Pankaj Malik, her counsel. If she could sign the
petition, she could have also sworn in Affidavit to be
CM(M) No.369/2009 Page 10 of 13
annexed with the petition. The vakalatnama
executed by the Petitioner is also signed by her. If
the petitioner could sign his petition and also the
vakalatnama executed in favour of her Advocate,
she could have also signed the written statement
and the affidavit to be annexed with the same.
However, no explanation is forthcoming from the
petition as to why and under what circumstances
when she could sign this petition, she could not sign
the written statement and the affidavit. Her
signatures appearing on the petition before me and
the vakalatnama is not notarized by the Notary
Public, London, UK nor her signatures are identified
and attested by the Indian Consulate at London.
Under these circumstances, presumption would be
that petition was here in India when she signed this
petition and the vakalatnama. In case, she had not
visited the India, then there is no proper petition
before this Court.
9. Besides, the trial court had permitted the Petitioner
CM(M) No.369/2009 Page 11 of 13
to file her written statement, signed by attorney or
the Advocate, as the case may be, annexed with an
Affidavit sworn in by her Advocate. Under these
circumstances, nothing stopped the Petitioner to file
her written statement annexed with the Affidavit of
her lawyer or attorney, as the case may be, within
the period of limitation or even during the extended
period.
10. It seems that Petitioner has been playing for time
with a view to prolong the disposal of the petition,
as number of cases are pending adjudication inter
se the parties. It is pertinent that even with this
petition which was filed on 25.04.2009 and refiled
on 27.04.2009, Petitioner did not care to file the
written statement and her affidavit duly attested by
the Notary Public. Conduct of the Petitioner, under
the circumstances, clearly reflect that at no point of
time Petitioner took any steps to get her written
statement and affidavit prepared and attested by
the Notary Public.
CM(M) No.369/2009 Page 12 of 13
11. As pointed out above, when the Court had
permitted the Petitioner to file her written
statement through her attorney, she could have
done the needful at the earliest but she failed for
the same for the reasons best known to her. Hence,
I find no merits in the petition, the same is
accordingly dismissed.
12. CM APPL. No.5978/2009 for stay also stands
dismissed.
(ARUNA SURESH)
JUDGE
JNAUARY 06, 2010
vk
CM(M) No.369/2009 Page 13 of 13