Karnataka High Court
Smt. Manjula. M vs Sri. C. S. Chaitanya on 27 November, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.52060/2018 &
WRIT PETITION Nos.52792/2018 & 52793/2018 (GM-FC)
BETWEEN:
SMT. MANJULA. M
W/O. C. S. CHAITANYA,
D/O. M. RAMANJANEYULU,
OCC-HOME MAKER,
AGED 34 YEARS,
R/AT#3/150, 1ST FLOOR,
CHOWDESHWARI LAYOUT,
PUTTENAHALLI, YALAHENKA,
BANGALORE-560 064.
... PETITIONER
(BY SRI S. VINAYAK, ADVOCATE)
AND:
SRI. C. S. CHAITANYA,
S/O. C. SUBBARAYUDU,
OCC-SOFTWARE ENGINEER,
AGED 35 YEARS,
2
WORKING AT INFOSIS LTD.,
EMPLOYEE NO.25498,
PARK II BANGALORE,
ELECTRONIC CITY,
BANGALORE-560 100.
... RESPONDENT
(BY SRI ASHISH KRUPAKAR, ADVOCATE)
****
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO ISSUE OF WRIT OF CERTIORARI, AGAINST ORDER
PASSED IN M.C.NO.2723/2013, BY THE HON'BLE
PRINCIPAL FAMILY JUDGE, AT BENGALURU DATED
9.11.2018 BY DISMISSING I.A NO.17 TO 19, THEREBY
DENYING TO REOPEN THE STAGE OF EXAMINATION-IN-
CHIEF OF THE PETITIONER, HEREIN, AND TENDER HER
EVIDENCE BY GETTING EXHIBITED RELEVANT
DOCUMENTS, RESPECTIVELY PRODUCED AT ANNEXURE-K.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
3
ORDER
The petitioner - wife filed the present writ petitions against the order dated 9.11.2018 on I.A. Nos.17 to 19 made in M.C. No.2723/2013 on the file of the Prl. Judge, Family Court, Benglauru dismissing the said applications.
2. The respondent - husband filed M.C. No.2723/2013 under the provisions of Section 13(1)(ia) of the Hindu Marriage Act,1955 to dissolve the marriage between the petitioner and the respondent dated 29th August 2010 raising various grounds. The present petitioner who is the respondent before the Family Court filed objections resisting the averments made in the M.C. petition.
3. When the matter was posted for cross-examination of RW.1 on 29.10.2018, on that day, the present petitioner filed three applications viz., I.A. No.17 under Order 18 Rule 17 r/w Section 151 of the Code of Civil Procedure to re- open the case; I.A. No.18 under Section 151 of Code of 4 Civil Procedure to recall RW.1 for marking of documents; and I.A. No.19 under Order 8 Rule 1A(3) r/w Section 151 of Code of Civil Procedure seeking permission to produce the documents, reiterating the averments made in the statement of objections and contended that the petitioner - wife was unable to produce certain documents as they were in Telugu and could not be translated due to the fact that the mother of the petitioner - wife was hospitalized. It is also contended that in view of the conditional order dated 15.9.2018 passed by the trial Court that the petitioner - wife should file her affidavit evidence on 17.9.2018 and should complete her examination-in-chief on the same day, she could not get sufficient opportunity to file documents and there was no intentional or deliberate delay in producing the documents. The delay was due to the bonafide reasons and was also beyond her control and the documents sought to be produced are material evidence for the proper and just disposal of the petition. Therefore 5 petitioner - wife filed above three applications to re-open the case, to recall RW.1 and permit her to produce documents.
4. The above applications were resisted by the respondent - husband by filing objections.
5. The trial Court considering the applications and the objections by the impugned order dated 9.11.2018 dismissed all the three applications mainly on the ground that the trial Court by a conditional order dated 15.9.2018 directed the present petitioner to file her affidavit evidence on 17.9.2018 and complete her examination-in-chief on the same day and should not seek any further time and also since the application for recalling cannot be allowed on the bald statement of omission to produce additional documents. The petitioner - wife is in the habit of filing the application one after the other to stall the proceedings. If the applications are allowed, the whole object of cross- 6 examination would be defeated. The applications are devoid of merits and accordingly dismissed the applications. Hence the present writ petitions are filed.
6. The respondent - husband filed objections to the present writ petition and contended that the petitioner - wife has not come to the Court with clean hands and she has suppressed the material facts of the case. It is further contended that on 2.7.2018 the petitioner - wife was absent and the matter stood adjourned to 19.7.2018, on which date also, the petitioner - wife remained absent. The Family Court posted the matter finally to 10.8.2018. Again on that day though the matter was posted as a final chance for the petitioner's evidence, the petitioner did not lead her evidence, instead engaged a new counsel and filed I.A. Nos.11 and 12 to recall the order dated 17.1.2017 to permit the petitioner to once again cross-examine the respondent herein and the matter stood adjourned to 3.9.2018 for objections and petitioner's evidence finally. Ultimately on 7 15.9.2018, the Family Court was pleased to reject I.A. No.14 and allow I.A.No.15 subject to the condition that the petitioner - wife should file her affidavit evidence on 17.9.2018 and should complete her examination-in-chief on the same day and be present before the Court for cross- examination on the date fixed by the Court. Finally on 17.9.2018 despite the petitioner having the entire day to lead her evidence, she sought several Passovers and finally chose to lead her evidence only towards the closing hours of the Court at 4.20 p.m. and the matter stood deferred for cross-examination. The same was recorded in the order sheet. The petitioner - wife was cross-examined at length on 4.10.2018 and 29.10.2018 and after being fully cross- examined, the petitioner - wife filed I.A. No.17 to 19 seeking to re-open the case, which is impermissible as the petitioner has not challenged the conditional order dated 15.9.2018 on I.A. No.15. Therefore the trial Court was justified in rejecting all the three applications. 8
7. I have heard the learned counsel for the parties to the lis.
8. Sri S. Vinayaka, learned advocate for the petitioner
- wife reiterating the grounds urged in the writ petition contended that since the rights of the parties are involved and respondent - husband filed the petition for divorce against the petitioner - wife, an opportunity ought to have been given by the trial Court to adjudicate her rights and the same has not been given. He further contended that the learned Judge of the Family Court failed to notice that inspite of being handed over relevant documents to the earlier counsel, which include even e.mail communications exchanged between the petitioner - husband and the respondent - wife, the same are not produced and they are necessary and relevant to resolve the dispute between the parties. Therefore he sought to allow the writ petitions by quashing the impugned order.
9
9. Per contra, Sri Ashish Krupakar, learned counsel for the respondent - husband sought to justify the impugned order passed by the trial Court. He vehemently contended that inspite of the conditional order passed by the Family Court on 15.9.2018 permitting the petitioner to proceed further, the present applications are filed only to protract and drag on the proceedings. Absolutely the documents sought to be produced are not relevant. Therefore he sought to dismiss the petitions with costs.
10. Having heard the learned counsel for the parties, it is an undisputed fact that the present respondent who is the husband has filed the petition under Section 13(1)(ia) of the Hindu Marriage Act,1955 for dissolution of the marriage raising various grounds. The same is opposed by the petitioner - wife by filing objections. It is also undisputed fact that the M.C. petition was filed in the year 2013. Earlier application filed by the very petitioner - wife in the M.C. Petition was allowed subject to the condition 10 that she shall proceed with the matter without seeking any further adjournment and complete her evidence on the same day and posted the matter for cross-examination. Though the learned Judge has recorded a detailed reasoning while dismissing the present applications, the fact remains that there is a dispute between the husband and wife and the main petition was filed for divorce against the wife by the husband. Though the conditional order passed by the Family Court on 15.9.2018, the petitioner has not challenged the same and having accepted the said order filed her affidavit evidence on 17.9.2018 and got marked the documents Ex.R1 to R8 and completed her examination-in-chief and when the matter was posted for cross-examination of RW.1 on 4.10.2018 and 29.10.2018, the petitioner ought not to have filed above applications. In the applications, it is stated that proposed documents could not be produced earlier since the documents are in Telugu and further though the documents given to the 11 earlier counsel, the same were not produced. That is not a ground for allowing the applications. But the fact remains that by mere giving an opportunity to produce the documents on a day to be fixed, no prejudice would be caused to the respondent - husband and he can very well cross-examine and object for marking of the documents, if they are not admissible in evidence.
11. Both learned counsel submit that now the matter is posted on 29.11.2018 before the Family Court. Learned counsel for the petitioner submits that the petitioner will not seek any adjournment on that day and proceed with the matter by producing the documents etc., if an opportunity is given. Taking into consideration that the rights of the petitioner are involved in the petition for divorce and in order to give one more opportunity, in the interest of justice, the applications have to be allowed subject to payment of costs of Rs.10,000/- (Rupees ten thousand 12 only) payable by the petitioner - wife to the respondent - husband before the trial Court on the next date of hearing.
12. In view of the aforesaid reasons, the writ petitions are allowed. The impugned order dated 9.11.2018 passed by the trial Court on I.A. Nos.17 to 19 made in M.C. No.2723/2013 on the file of the Principal Judge, Family Court, Bengaluru is hereby set aside. I.A. Nos.17 to 19 filed by the present petitioner to re-open the case; to recall RW.1 and permit her to produce the documents are hereby allowed subject to payment of costs of Rs.10,000/- (Rupees ten thousand only) payable by the petitioner - wife to the respondent - husband before the trial Court on the next date of hearing i.e., 29.11.2018 and also subject to the condition that on that date, the petitioner shall proceed with the matter. It is also made clear that the petitioner shall produce the documents and the evidence, if any on the said date and shall not seek any adjournment for any reason and should not file any 13 application to drag on the matter. This opportunity is given as a last chance and if the same is not availed, the Family Court shall proceed with the case in accordance with law.
With the above observations, the writ petition is disposed of.
Sd/-
JUDGE Gss/-