Delhi District Court
Abhishek Saini vs Priyanka on 12 February, 2024
CS SCJ 246/2023 ABHISHEK SAINI V. PRIYANKA
IN THE COURT OF MS. SWAYAM SIDDHA TRIPATHY,
CIVIL JUDGE-02, SOUTH DISTRICT, SAKET COURT,
DELHI
Case No. : CS SCJ 246/2023
CNR No. : DLST03-000362-2022
IN THE MATTER OF :
SH. ABHISHEK SAINI
S/o Sh. Seva Ram Saini
R/o J-4/67, Ground Floor,
Khirki Extension,
New Delhi-110017. ...............Plaintiff
Versus
MS. PRIYANKA
W/o Sh. Abhishek Saini,
R/o S-82/23, Jagdamba Camp,
Seikh Sarai Phase,
New Delhi.
Also At:
H. NO. T-3/15,
Flat No. 12, Pansheel Vihar,
Malviya Nagar, New Delhi-110017. ............Defendant
****
SUIT FOR RECOVERY OF RS.50,000/- (RUPEES FIFTY THOUSAND ONLY) ALONGWITH INTEREST OF 18% PER ANNUM ALONGWITH AFFIDAVIT.
**** Date of Institution of suit : 04.03.2022 Date of Reserving of Judgment : 08.02.2024 Date of Pronouncement of Judgment : 12.02.2024 SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date: 2024.02.12 16:39:25 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 12.02.2024 (Page 1 of 8) CS SCJ 246/2023 ABHISHEK SAINI V. PRIYANKA **** EXPARTE JUDGMENT
1. Vide this judgment, I shall dispose of the present suit filed by the plaintiff seeking recovery of Rs.50,000/- alongwith interest @ 18% p.a. PLAINT
2. Briefly stated the case of the plaintiff is that the plaintiff and defendant are husband and wife and had got married in Arya Samaj Mandir, Malviya Nagar, New Delhi on 14.05.2018. After the marriage of the parties, the defendant herein never went to her matrimonial home and stayed at her parental home after marriage was solemnized.
3. That the plaintiff had filed a petition u/s 12 of the Hindu Marriage Act, 1956 bearing no. HMA 565 of 2019 on 14.03.2019 and the defendant filed a false police complaint in the CAW Cell to counter the petition u/s 12 HMA. Thereafter, an FIR bearing No. 269/19 was registered but no arrest was made.
4. That the defendant later on, filed a false domestic violence case against the plaintiff and his family members u/s 12 of the Protection of Women from Domestic Violence Act bearing Ct. Case No. 17052/2019 which is pending for adjudication in Saket Court.
5. That the plaintiff and defendant were referred to Counsellor in HMA No. 565/2019 and the parties after five sessions of counselling, agreed to settle the matter upon Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2024.02.12 TRIPATHY 16:39:33 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 12.02.2024 (Page 2 of 8) CS SCJ 246/2023 ABHISHEK SAINI V. PRIYANKA certain terms and conditions. Accordingly, a settlement agreement dated 11.12.2020 was drawn up in the presence of Counsellor. In the said agreement, the defendant agreed to settle all the disputes without any monetary compensation. She also undertook not to claim any monetary compensation from the plaintiff in future. It was further agreed that the plaintiff shall file/initiate the process of quashing of the FIR No. 269/2019 dated 06.09.2019 u/s 498A/34 IPC at his own cost and the defendant undertook to cooperate and sign necessary affidavits and other papers. It was also agreed between the parties that they will withdraw their respective cases from the respective courts.
6. That as per clause 3 of the settlement agreement, it was agreed between the parties that the responsibility of filing of the first motion shall be borne by the defendant on or before 25.12.2020. The defendant failed to comply with the clause 3 of the settlement agreement.
7. That it was further agreed between the parties that if either parties commits breach or backs out or defaults on the mutually agreed settlement, then the defaulting party shall pay a penalty of a sum of Rs. 50,000/- to the other party and the other party will have the right to take legal recourse for the said default.
8. That the counsel of the plaintiff had drafted the petition u/s 13B(1) for grant of first motion in compliance of the said Digitally signed SWAYAM by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date: 2024.02.12 16:39:40 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 12.02.2024 (Page 3 of 8) CS SCJ 246/2023 ABHISHEK SAINI V. PRIYANKA settlement agreement dated 11.12.2020. On 30.01.2021, the counsel of the plaintiff sent the draft to the counsel of the defendant for final approval and for getting signatures of the defendant. The counsel of the defendant hardly took interest in the said mutual divorce as he was appointed as a counsel from the Legal Aid Cell and he was not assigned to represent the defendant in the Mutual Divorce Petition. Hence the counsel for the plaintiff received no response from the defendant. In order to fast forward the filing process, the counsel for the plaintiff sent a mail of the Mutual Divorce Petition to the defendant herein for her signatures.
9. That one fine day, the defendant herein came alone to Saket Court Complex for signing Mutual Divorce Petition. The defendant had taken out the print of the petition for signatures which were handed over to the counsel of the plaintiff. The counsel of the plaintiff upon perusal of the petition observed that the affidavits were not printed and verified properly.
10.That the counsel of the plaintiff and the plaintiff tried to explain the deficiencies in the petition, upon which the defendant created a ruckus and accused the counsel and the plaintiff for harassing her. Further, when the counsel of the plaintiff again tried to convince the defendant about the discrepancies, she got agitated and told the plaintiff that she would not settle the matter and would not file the Digitally signed SWAYAM by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date: 2024.02.12 16:39:47 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 12.02.2024 (Page 4 of 8) CS SCJ 246/2023 ABHISHEK SAINI V. PRIYANKA mutual divorce petition.
11.That since then the counsel for the plaintiff and the plaintiff tried to call the defendant many a times and sent messages to her, asking her to abide by the terms of settlement agreement but the defendant has become stubborn and is deliberately not complying with the settlement agreement dated 11.12.2020.
12.That the defendant has committed breach of the settlement agreement and hence, the plaintiff has no other means than to invoke clause 11 of the said settlement agreement dated 11.12.2020, wherein the defaulting party i.e. the defendant will have to pay Rs. 50,000/- to the other party i.e. the plaintiff. Hence, the present suit.
APPEARANCE OF DEFENDANT
13.After institution of the suit, summons were issued to the defendant which was unserved. However, Counsel for defendant appeared before the court on 24.11.2022 and apprised the court that settlement was going on between the parties. Despite appearance, the defendant failed to file WS. Accordingly, he was proceeded against exparte vide order dated 09.01.2024. The defendant alongwith Counsel for defendant appeared before the court on 12.02.2024, however, no application for setting aside exparte order was either prayed for or moved by the defendant. However, Counsel for defendant filed his Vakalatnama which is proof of due service to defendant.
Digitally signedSWAYAM by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date: 2024.02.12 16:39:54 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 12.02.2024 (Page 5 of 8) CS SCJ 246/2023 ABHISHEK SAINI V. PRIYANKA EXPARTE EVIDENCE
14.Plaintiff, in support of his case, has placed on record his affidavit vide Ex. PW1/A and relied upon the following documents:
Sl. No. Exhibits/Mark Details of Documents
1. Ex. PW1/1 Copy of settlement agreement (OSR) dated 11.12.2020.
2. Ex.PW1/2 Copy of email dated 30.01.2021 (Colly) alongwith Certificate under Section 65B of the Indian Evidence Act.
15.The said witness was duly examined-in-chief. Thereafter, evidence on behalf of plaintiff was closed vide order dated 08.02.2024.
FINAL ARGUMENTS
16.I have heard learned Counsel for the plaintiff who argued as per the pleadings contained in the plaint and the arguments are not being reproduced for the sake of brevity.
DECISION AND REASONING THEREOF
17.It is a settled law that a plaintiff has to stand on its own legs and discharge its burden and the necessity of proof cannot be dispensed with. It was also held in Maya Devi v. Lalta Prasad, (2015) 5 SCC 588, that the absence of defendant to contest the suit does not invite a punishment in the form of an automatic decree. Thus, the burden to prove the case is upon the plaintiff, even if, the defendant Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2024.02.12 TRIPATHY 16:40:04 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 12.02.2024 (Page 6 of 8) CS SCJ 246/2023 ABHISHEK SAINI V. PRIYANKA has been proceeded exparte.
18.It is the case of the plaintiff that the defendant had undertaken to cooperate with the plaintiff for quashing of FIR No. 269/19 and sign the petition for seeking first motion. However, she failed to comply with the terms of agreement and accordingly, the plaintiff is entitled to receive penalty of Rs.50,000/- from the defendant.
19.To establish that the plaintiff is entitled to penalty of Rs.50,000/-, he has relied upon the settlement agreement dated 11.12.2020 Ex.PW1/1 and an email dated 30.01.2021 Ex.PW1/2 vide which the counsel for plaintiff had asked the defendant to finalize the draft of first motion of divorce by mutual consent. It is claimed that the defendant did not signed the petition for obtaining divorce by mutual consent and sign the necessary documents for quashing of said FIR. However, the plaintiff has failed to prove that the defendant did not comply with the terms of settlement. The plaintiff has not filed the certified copies of the petitions that are pending irrespective of the agreement. The plaintiff has failed to discharge the onus upon him to prove that the defendant is entitled to pay the penalty for not complying with the terms of agreement. Furthermore, no time period has been specified in the settlement agreement for performance of the terms and conditions viz., signing of first motion petition or necessary affidavits for quashing of FIR. Therefore, it cannot be said with Digitally signed by SWAYAM SWAYAM SIDDHA TRIPATHY SIDDHA Date:
TRIPATHY 2024.02.12 16:40:11 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 12.02.2024 (Page 7 of 8) CS SCJ 246/2023 ABHISHEK SAINI V. PRIYANKA certainty that the defendant has violated the terms of the agreement.
20.In view of the reasons mentioned above, this Court is of the considered opinion that the plaintiff has failed to prove that he is entitled to recover the penalty of Rs. 50,000/-
from the defendant for not complying with the terms of settlement agreement.
RELIEF
21.In view of the above-stated findings, the suit of the plaintiff stands dismissed. No order as to cost of the suit.
22.Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date: 2024.02.12 16:40:18 +0530 Announced in the open court (Swayam Siddha Tripathy) on 12.02.2024 Civil Judge-02(South) (This judgment contains 08 pages Saket Courts, New Delhi and each page has been signed by me.) 12.02.2024 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 12.02.2024 (Page 8 of 8)