Karnataka High Court
Cyprian D'Souza vs Smt. Rene D'Souza on 30 September, 2002
Equivalent citations: AIR2003KANT64, I(2003)DMC409, ILR2002KAR5145, 2003(1)KARLJ401, AIR 2003 KARNATAKA 64, 2003 (1) KCCR 70, 2003 (1) ICC 740, (2003) 3 ALLINDCAS 243 (KAR), 2003 (3) ALLINDCAS 243, 2003 (1) CIV LJ 824, 2003 (1) HINDULR 222, (2002) ILR (KANT) (4) 5145, (2003) 1 DMC 409, (2003) 1 KANT LJ 401, (2003) MATLR 178, (2003) 3 RECCIVR 30, (2003) 1 INDLD 524
Bench: A.M. Farooq, D.V. Shylendra Kumar
JUDGMENT
1. This is an appeal by the plaintiff in O.S. No. 96 of 1996 on the file of Principal Judge, the Family Court. Bangalore, whereby the Family Court has rejected the plaint by allowing the application filed by the respondent-defendant under Order 7, Rule 11(d) of the Code of Civil Procedure.
2. Aggrieved plaintiff who is also the husband of the respondent, is in appeal before us. The appeal had been initially preferred as a miscellaneous appeal under Order 43, Rule 1 and has been later permitted to be treated as an appeal under Section 19(1) of the Family Courts Act, inasmuch as the rejection of the plaint amounts to a decree and the decree having been passed by the Family Court, a miscellaneous appeal under Section 19 alone was maintainable.
3. Brief facts of the appeal are that the parties are husband and wife and are Christians by faith. The plaint averments inter alia indicated that in respect of the suit Schedule property viz., a residential house, the husband, plaintiff had claimed equal share, though it stood in their name and the property itself being jointly held by them. The husband had sought for partition, separate possession of his undivided share in the property and for such other incidental reliefs had presented the plaint. The plaint itself had been presented through a duly constituted agent, one by name S.P. Naidu representing the plaintiff who at the relevant point of time was averred to be residing at Middle East in connection with his avocation.
4. The defendant who was served with the suit notice filed an application under Order 7, Rule 11 read with Section 151 of the CPC seeking for rejecting the plaint on the premise that the plaintiff having presented the plaint through an agent the same is not permitted under the provisions of the Family Courts Act, and that the Court has no jurisdiction to entertain the suit of this nature and the plaint was required to be rejected.
5. Though several objections have been raised the Court below being of the view that an attorney holder or a duly constituted agent being not in a position to participate in the conciliation proceedings under Section 23-A(2) of the Act, which the Court will have to attempt, even at the time of first hearing and as it was necessary for the parties to proceedings to be present for such conciliation before the Court, and when a plaint is presented through a duly constituted attorney such a possibility for conciliation being deprived and the Court being not in a position to act in consonance with the provisions of Section 23-A(2) of the Hindu Marriage Act, the plaint was liable to be rejected. Accordingly, the plaint was rejected holding that the plaintiff was prosecuting the case in a manner which was not in consonance with the provisions of the Act and hence the rejection of the plaint.
6. Aggrieved by this order the plaintiff is in appeal before us. We have heard the learned Counsel for the appellant and the learned Counsel for the respondent. The only point that arises for determination in this appeal is as to whether the Family Court was justified in holding that the plaint ought to be rejected on the premise that accepting a plaint presented through a power of attorney was in contradiction of the provisions of the Hindu Marriage Act. The learned Counsel for the appellant submits that this aspect of the matter is now resolved by a decision of a Single Judge of this Court in Mrs. Komal S. Padukone v. Principal Judge, Family Court, Bangalore City and Anr., holding that a petition can be presented before the Family Court either in person or through an authorised agent and that the respondent can also appear either in person or through an authorised agent. The learned Judge had an occasion to observe while considering this aspect as under:--
"9. The provisions of the Code of Civil Procedure apply to proceedings before the Family Court, except where there are provisions to the contrary in the Act or the Rules. A Family Court is a Civil Court having all powers of a Civil Court, except when dealing with a proceeding under Chapter IX of the Code of Criminal Procedure. The procedure to be adopted by family Courts in dealing with and deciding cases before it will be the same as applicable to summary proceedings under the Code of, Civil Procedure, subject to the following modifications:
(a) The Family Court shall endeavour in the first instance, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the proceeding, where it is possible to do so consistent with the nature and circumstances of the case [Section 9(1)]
(b) In addition to the general power to adjourn the proceedings, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect a settlement, if it appears to the Family Court that there is a reasonable possibility of a settlement [Section 9(2)];
(c) A Family Court may lay down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the proceedings or at the truth of the facts alleged by one party and denied by the other [Section 10(3)];
(d) The proceedings may be held in camera, if the Family Court so desires and shall be so held if either party so desires (Section 11);
(e) A Family Court may secure the services of Medical Experts and Welfare Experts to assist in discharging its functions under the Act [Section 12];
(f) The parties are not entitled, as of right, to be represented by a legal practitioner (Section 13);
(g) A Family Court may seek the assistance of a legal expert as Amicus Curiae (Section 13);
(h) A Family Court may receive as evidence, any report, statement, document, information or other matter, that may, in its opinion, assist it to deal effectively with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (Section 14);
(i) Recording of oral evidence may be summary in nature (Section 15). The Family Court may receive evidence of formal character, by way of affidavit (Section 16). It is not obligatory to frame issues. The judgment shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision (Section 17).
10. There is nothing in Act or Rules which prohibits a petition being filed by an authorised agent, or requires a petition should be presented by the petitioner in person. Therefore, there is no bar to a petition being presented to the Court by an agent (attorney holder). Even a legal practitioner who holds a power of attorney to present the petition, may 'present' a petition, but may not be able to 'represent' the petitioner in the proceedings unless permitted by the Family Court. Similarly, there is nothing in the Act or Rules requiring the Family Court to refuse to recognise or accept the appearance of a respondent, through an authorised agent on the date fixed for appearance. A respondent can enter appearance through an authorised agent (who can also be a legal practitioner) with an application seeking permission to he represented by a legal practitioner.
11. A party may choose to appear through and be represented by an authorised agent other than a legal practitioner, in which event permission under Section 13 is not necessary. A Family Court, having regard to the facts and circumstances, may of course make a specific order for the personal appearance of a party. Only if such an order is made, the party has to make an application for exemption from personal appearance if he/she is not in a position to appear in the matter. Even if the Family Court refuses permission to the parties to be represented by a legal practitioner, the parties may be represented by authorised agents other than a legal practitioner. But, if one side has been permitted to be represented by a legal practitioner, the Family Court should not refuse permission to the other side to be represented by a legal practitioner. To do so would be in violation of principles of natural justice".
While we respectfully agree with the view taken by the learned Judge, we only wish to state that the provisions of the Act and Rules does not mandate that the petition should be presented only in person by the petitioner. On the other hand, Section 10 of the Act indicating the procedure to be followed points out that the provisions of the CPC shall be generally applicable in respect of these matters before the Family Court and no such embargo appears to be drawn. The provisions of Sections 19 and 20 of the Hindu Marriage Act which provide for the jurisdiction and procedure in the matter of presenting petitions under the Act also lend support to our view.
7. While these sections do not mandate that the petitioner should present the petition in person and should be present before the Court at the first hearing, on the other hand, Sub-section (2) of Section 20 positively enable the contents of a petition to be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints and may, at the hearing, be referred to as the evidence. As noticed above, Section 21 provides for adopting the procedure under the Code of Civil Procedure, 1908.
8. There is no scope for inference that a petition presented through an authorised agent, becomes such an improper presentation warranting the rejection of the petition itself.
9. However, the learned Counsel for the respondent has drawn our attention to Rule 7 of the Family Courts (Karnataka) Rules, 1987, the Family Courts (Procedure) Rules, 1987, which reads as under.--
"Rule 7. Reconciliation.--(1) The Court shall make every effort for bringing about reconciliation or settlement between the parties in the first instance in every case where it is possible to do so consistent with the nature and circumstances of the case in such manner as deem fit, with the help of Counsellors nominated by the Court".
This rule which is framed to give effect to Section 9 of the Act only casts a duty on the Court to endeavour for a possible reconciliation between the parties and that the settlement of the dispute under the rule is that such an effort should be made at the earliest possible opportunity and in the first instance. It is in these circumstances, that having regard to the facts and having regard to the dispute before the Court, the Family Court is required to make such an endeavour. Permitting a petition or a plaint being presented through an agent will definitely not come in the way nor is the Court pre-empted from such an endeavour being made. A dispute can be presented before the Court only on the parties putting forth their respective pleas and it is only thereafter that the Family Court will be in a position to decide the nature of dispute between the parties and would try to conciliate the case. The Family Court could always direct the parties to be present on such an occasion. This possibility is not in any manner taken away by the plaint being presented through an authorised agent.
10. In this view of the matter, we allow the appeal and set aside the order passed by the learned Judge, Family Court, as unsustainable in law.
11. The matter is restored to the file of the Family Court and the Family Court is directed to proceed with the matter from that stage in accordance with law. The matter having come to the Court in the year 1999 and having been stalled all these years, the Family Court shall dispose of the matter as expeditiously as possible.