Patna High Court
Bisweswar Ram And Ors. vs Paltu Ram Kahar on 5 August, 1920
Equivalent citations: 59IND. CAS.887, AIR 1920 PATNA 798
JUDGMENT Jwala Prasad, J.
1. The suit was first decreed ex parts and upon the application of the defendants was restored and re-heard.
2. The plaintiff adduced both oral and documentary evidence. The defendants failed to do so, and the suit was, therefore, decided upon the evidence of the plaintiff and was decreed in his favour by the Courts below.
3. The first ground taken against the decision of the lower Appellate Court is, that it did not consider the evidence offered by the plaintiff but simply devoted its attention to the failure of the defendants to prove their case.
4. It, however, appears from the judgment of the Court below that the principal point urged before it was, that the defendants were not given an opportunity to prove their case and their application dated the 30th October 1918, for time and for issuing a warrant on their witnesses should have been granted by the Munsif. The learned Judge conclusively proved from the proceedings on the record from the beginning that the defendants were dilatory both before the suit was decreed ex parte and also after it was restored and re-heard, and that the Munsif was right in not showing any more indulgence to them. This point is now abandoned in this Court, and if it were seriously urged it would not have been difficult to show that the decision of the District Judge on that point was perfectly correct. No doubt, in the memorandum of grounds of appeal before that Court the findings of the Munsif on all the issues were attacked. This, however, did not by itself entitle the appellant to have all those points dealt with and disposed of by the lower Appellate Court unless the grounds urged in the memorandum of appeal were actually pressed before the Court at the time of the bearing, and the fact that they were pressed must, in the first place, have appeared from the judgment of the lower Appellate Court, or it must have been satisfactorily proved that, though pressed, the Judge ignored them. The latter ground has to be substantiated by clear proof in the shape of an affidavit either by the Pleader in the Court below or by some other person in whom the Court might place confidence in a matter like this. Mr. Mukherjee for the appellant frankly admits that he has no instruction on the point as to whether the points were actually urged before the lower. Appellate Court or not, In the circumstances, the Court was perfectly right, after disposing of the only points urged before it, to affirm the decree of the Court of first instance, for the onus of proof that the decree was wrong was upon the appellants.
5. It is then contended that the decree of the first Court is not in accordance with law, inasmuch as it has not given its decisions separately upon the issues framed in the case. The Munsif clearly says that the defendants produced no proof in support of their case and that the plaintiff satisfactorily proved his claim by the evidence of his witnesses. He also referred to the written statement of the defendants in a Small Cause Court Suit No. 117 of 1914 in which the marriage of the plaintiff with defendant No. 3 was admitted. It is not denied that there was evidence on the record on all the issues involving in the case, and hence the learned Vakil is not in a position to dispute the correctness of the decision of the Munsif and when the Munsif says that, "I decide these issues in plaintiff's favour and decree the suit" he clearly had his attention upon the issues framed in the case and the evidence adduced by the plaintiff. I have looked into that evidence and the plaintiff has proved in to the allegations made in the plaint upon which the suit was founded. The onus of proving Issues Nos. 3 and 4 as to the marriage between the plaintiff and the defendant No. 3 and as to the relationship of husband and wife subsisting' between them, was upon him, The plaintiff, the priest who performed the marriage, and the other persons also who took part in the ceremony of the [marriage, were examined in this case. It was further proved that the relationship continued. The plaintiff, therefore, discharged the onus upon him of proving the aforesaid issues. The onus of Issues Nos. 2 and 3 relating to the defect of party and as to the suit having been barred by lapse of time, was obviously upon the defendant, but, as observed above, he failed to adduce any evidence to substantiate them. Prima facie, upon the pleadings and upon the evidence in the case, the plaintiff's claim was within time. The cause of action arose on the 16th April 1917 and the suit was instituted on the 21st April, only four days after. There-fore it was for the defendants to prove that the suit was barred by time and they failed to do so.
6. There was, therefore, ample evidence upon the record to support the decision of the Munsif and in a case decided ex parts he could not do more than what he has done in the case, holding clearly that the plaintiff's case was satisfactorily proved and the defendants failed to prove the case set up by them. There is, therefore, no defect either in law or in the procedure in the disposal of the case by the Munsif.
7. The last straw in the argument of the learned Vakil for the appellants is that the decree framed in this case is not in accordance with law. The plaintiff prayed for the restitution of conjugal rights and for a decree to recover possession of his wife, defendant No. 3, from her parents, defendants Nos. 1 and 2. The decree declares the conjugal rights of the plaintiff and directs the plaintiff to be entitled to recover possession of his wife, defendant No. 3, and orders her parents, defendants Nos. 1, and 2, to send defendant No. 3 to the plaintiff. Reliance has been placed upon the case of Koobur Khansama v. Jan Khansama 8 W.R. 467. and Chotun Bebee v. Ameer Chund 6 W.R. 105. 1 Ind Jur. (N.S.) 317. In those cases the decrees passed were for possession of the "person of the wife" and it was held that such a decree was objectionable, for a wife cannot be looked upon as property and the decree was varied and a modified decree was prepared in the following terms: "That it be declared, that the plaintiff husband is entitled to conjugal rights and the wife defendant be ordered to return to his protection." Cases of this kind are very few, as observed in the aforesaid case in Chotun Bebee v. Ameer Chund 6 W.R. 105. 1 Ind Jur. (N.S.) 317., and Seton-Karr, J. in that judgment very lightly observed that the case is one of nicety and difficulty, and there was nothing to show that Section 200 (now Order XXI, Rule 33) of the Code of Civil Procedure did not empower the husband to take possession of his wife. The plaintiff in this case claimed relief against, the parents of his wife, defendants Nos. 1 and 2, as having actually prevented him from taking his wife to his house and also proved it by his evidence in Court. The written statements of the defendants clearly show that the parents are instrumental in the plaintiffs way of exercising his conjugal rights. The decree, therefore, had directed them to send back the wife to the plaintiff husband as prayed for by the latter. As a positive direction that may not be an accurate and proper direction in a decree of this kind, but certainly they can be properly directed to refrain from preventing the plaintiff's wife to return to her husband. This was the form of decree prepared in the case of Ajnasi Kuar v. Suraj Prasad 1 A. 50l : 1 Ind. Dec. (N, S) 345 This direction appears to me to be necessary in order to enable the plaintiff to execute the decree properly under Order XXI, Rule 33, and to effectively obtain the benefit of the decree for the restitution of his conjugal rights.
8. Therefore, taking into consideration all the aforesaid authorities and Order XXI, Rule 33, I would, instead of the decree of the Court below, substitute a decree in the terms recommended in the aforesaid cases of the Weekly Reporters and the Allahabad High Court and add to its a direction "that the defendants Nos. 1 and 2 do refrain from preventing the plaintiff's wife, defendant No. 3, from returning to him,"
9. The appeal is accordingly dismissed with costs, the decree being modified as indicated above.