Madhya Pradesh High Court
Sumitra vs Inder Kumar @ Indermal on 4 December, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2024:MPHC-IND:34607
1 FA-2266-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 4 th OF DECEMBER, 2024
FIRST APPEAL No. 2266 of 2024
SUMITRA
Versus
INDER KUMAR @ INDERMAL
Appearance:
Shri Satish Jain, learned counsel for the appellant.
ORDER
Per: Justice Binod Kumar Dwivedi Heard on I.A.no.11455/2024 an application under Section 5 of the Limitation Act for condonation of delay. The appeal is barred by 47 days.
The application is allowed for the reasons stated therein. The delay in filing the appeal is hereby condoned.
Also heard on the question of admission.
This first appeal under Section 19(1) of the Family Courts Act, 1984 (hereinafter referred to as the 'Act, 1984') has been filed against the order dated 10.09.2024 passed by learned Principal Judge, Family Court, Mandsaur in MJC No.04/2023 whereby an application filed under Order 9 Rule 9 read with Section 151 of Code of Civil Procedure (hereinafter referred to as 'CPC') has been allowed by setting aside the order dated 24.04.2023 in original case HMA. No.38/2021(Smt.Sumitra Vs. Inder Signature Not Verified Signed by: REENA JOSEPH Signing time: 06/12/2024 17:21:19 NEUTRAL CITATION NO. 2024:MPHC-IND:34607 2 FA-2266-2024 Kumar @Indermal Dhakad) and counter claim filed on behalf of the respondent/husband has been restored.
2. It is admitted that appellant-Smt.Sumitra Dhakad had filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act, 1955') whereon HMA No.38/2021(Smt.Sumitra Vs. Inder Kumar @Indermal Dhakad) was registered. In this case, respondent/husband had filed counter claim on 19.01.2022. This case was fixed for appellant's evidence on 24.04.2023. On this date, appellant/wife voluntarily submitted not to prosecute her petition and respondent/husband also expressed not to prosecute his counter claim and on these assertions of the parties, the aforesaid case HMA No.38/2021 along with the counter claim of respondent/husband was dismissed.
3. The case of the respondent/husband in application before the Family Court filed under Order 9 Rule 9 read with Section 151 of CPC dated 10.06.2023 has been that appellant/wife and respondent/husband has sought decree of divorce. The appellant/wife and respondent/husband stated that since both want dissolution of marriage, therefore, without levelling allegations against each other, an application under Section 13-B of the Act, 1955 for divorce by mutual consent may be filed and therefore, both of them should get dismissed the suit and counter claim. It has been further alleged that in pursuance of the aforesaid order dated 24.04.2023, the original proceedings i.e. HMA No.38/2021 along with counter claim were got dismissed.
4. After that respondent/husband has got drafted an affidavit along Signature Not Verified Signed by: REENA JOSEPH Signing time: 06/12/2024 17:21:19 NEUTRAL CITATION NO. 2024:MPHC-IND:34607 3 FA-2266-2024 with an application for divorce, but it was not signed by the appellant on the pretext that her father is against the divorce by mutual consent. Thus, the appellant/wife by keeping the respondent in dark got dismissed the original proceedings in which counter claim of the respondent/husband was also dismissed. On these contentions, respondent/husband filed an application for restitution of original proceedings.
5. Appellant/wife refuted the allegations with submissions that there was no consensus on filing divorce petition on mutual consent. She has neither made any false statement nor committed any fraud with the respondent. The allegations in this regard are baseless. The counsel for the respondent/husband though drafted application for divorce by mutual consent, but on advise of families of both the parties, in amelioration of relations, application for divorce by mutual consent was not filed. Counter claim once dismissed cannot be restored specifically in absence of sufficient reasons, therefore, the application filed by respondent/husband has been filed malafidely, as an after thought and therefore, deserves to be dismissed.
6. Learned Family Court after recording the evidence and affording an opportunity of hearing to both the parties, by the impugned order dated 10.09.2024 allowed the application for restoration of counter claim which give rise to this first appeal.
7. Learned counsel for the appellant taking exception to the impugned order submits that there is no provision in law to restore the proceedings which has been dismissed with the consent of the parties. He further submits that learned Family Judge has committed legal and factual Signature Not Verified Signed by: REENA JOSEPH Signing time: 06/12/2024 17:21:19 NEUTRAL CITATION NO. 2024:MPHC-IND:34607 4 FA-2266-2024 error in not considering that the word compromise admitted by the appellant means living together, by no stretch of imagination, can be interpreted, as compromise to file the divorce petition with mutual consent and provisions of Order 9 Rule 9 are not applicable. It is further submitted that learned Family Judge has not interpreted the evidence in right perspective. On these premises, learned counsel for the appellant prays for setting aside the impugned order by allowing this appeal.
8. Heard learned counsel for the appellant and perused the record.
9. From perusal of the impugned order, it is manifest that inherent power as provided under Section 151 of CPC have been resorted for passing this order. Section 151 of CPC is reproduced as under:-
"151. Saving of inherent powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
10. From bare perusal of the provisions contained in the aforesaid Section, it is apparent that if no other specific provision is available, the Court in the interest of justice can pass such order as may be necessary. Such order can be passed to prevent the abuse of process of the Court. The inherent powers vested with the Civil Court cannot be deemed to be limited or otherwise affect the inherent power of the Court. In the instant case, both the parties have been afforded opportunity to adduce evidence. The respondent/husband Inder Kumar @ Indermal has examined himself as AW- 1 and also examined his counsel as AW-2 in his support, whereas appellant/Sumitra NAW-1 and her brother NAW-2 have been examined to Signature Not Verified Signed by: REENA JOSEPH Signing time: 06/12/2024 17:21:19 NEUTRAL CITATION NO. 2024:MPHC-IND:34607 5 FA-2266-2024 revert the evidence led by respondent/husband.
11. After going through the provisions as enshrined under Order 23 Rule 1 and Order 9 Rule 9 of CPC and finding that these provisions are not sufficient and applicable to do justice, learned Family Court has resorted to the inherent power as contained in Section 151 of CPC. In support of the aforesaid power, learned Family Judge has also rightly placed reliance on the judgment of the Apex Court in the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth AIR 1962 SC 527 wherein it has been held that provisions of the CPC are not exhaustive for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The judgment of Calcutta High Court in the case of Rameshwar Sarkar Vs. State of West Bengal and others AIR 1986 Cal. 19 have also been relied upon by the learned Family Court where power given under Section 151 of CPC is to be applied. The observations of Calcutta High Court in the aforesaid case is profitable and reproduced as under:-
"The scope of Section 151 is very wide. Where there is no provision under the Code of Civil Procedure prescribing any remedy, Section 151 will apply. Order 23 Rule 1 provides withdrawal of a suit with or without liberty to file a fresh suit. There is no provision for getting an order passed on withdrawal application set aside or praying for withdrawal of an application for withdrawal of the suit. In such circumstances, in our opinion, the Court is not powerless to allow withdrawal of an application for withdrawal of a suit in exercise of its inherent power in a proper and suitable case."
12. In the light of the aforesaid, arguments advanced on behalf of Signature Not Verified Signed by: REENA JOSEPH Signing time: 06/12/2024 17:21:19 NEUTRAL CITATION NO. 2024:MPHC-IND:34607 6 FA-2266-2024 the appellant that in absence of any provision, counter claim which was dismissed with the consent of the respondent cannot be restored has no substance. We are of the view that the impugned order dated 10.09.2024 passed by the learned Principal Judge, Family Court, Mandsaur in MJC No.04/2023 is well reasoned order, needs no interference by way of this appeal.
13. In the light of the aforesaid, upholding the impugned order, this appeal is dismissed, as having no merit.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 06/12/2024
17:21:19