Andhra HC (Pre-Telangana)
Soma Ramamohan Reddy vs Soma Saraswathi on 31 October, 2005
Equivalent citations: 2006(1)ALT484
ORDER P.S. Narayana, J.
1. This Court ordered notice before admission on 7-10-2005 and Sri E.V. Bhagiratha Rao entered appearance representing the respondent in Civil Revision Petition.
2. In view of the urgency pleaded by both the counsel, Sri K. Raghuveer Reddy representing the revision petitioner and Sri T. Sharath representing Sri E.V. Bhagiratha Rao, the counsel for the respondent, the matter is being finally disposed of at the stage of admission.
3. Sri K. Raghuveer Reddy, the learned Counsel representing the revision petitioner/ respondent in O.P.No. 21 of 2003 on the file of the Senior Civil Judge, Proddatur, made the following submissions:-
The learned Counsel would maintain that invoking the powers under Section 10 of the Code of Civil Procedure, 1908, (hereinafter referred to as 'the Code' for the purpose of convenience) suo motu in the facts and circumstances of the case cannot be permitted. The learned Counsel also would maintain that when the status of the wife itself is in controversy, in the other two pending suits filed by the contesting parties, without deciding the preliminary question relating to the status of the wife, staying the main O.P. under Section 10 of the Code, that too after hearing the arguments cannot be sustained, in the light of the language of Section 10 of the Code. The learned Counsel also explained that even otherwise the matter in issue in the O.P. and the suits being not one and the same, provisions of Section 10 of the Code are not applicable. Further the learned Counsel also would contend that the words 'trial of the suit' in Section 10 of the Code assume some importance and hence at a later stage that too at the fag end, the benefit available to the parties, under Section 10 of the Code, cannot be extended. The learned Counsel also pointed out to the reliefs which had been prayed for in the other pending suits arid the relief which had been prayed for in the O.P.No. 21 of 2003.
4. Sri T. Sharath, counsel representing Sri E.V. Bhagiratha Rao, the counsel for the respondent made the following submissions:-
The learned Counsel would maintain, that a matrimonial proceeding like the present one may have to be decided at the earliest point of time and the respondent herein/ petitioner in O.P.No. 21 of 2003 is very eager to get the relief but however, the counsel would maintain that due to her misfortune, the very status of her, as wife had been denied and two suits praying for positive relief and negative relief in this regard are pending on the file of yet another Court and in view of the same, it would be just and proper if the O.P. is finally disposed of after the suits are decided. The learned Counsel also had taken this Court through the respective pleadings of the parties in the pending suits and would comment that the principal issue to be decided in all the three proceedings is the status of the wife and hence there is a common issue to be decided in all these proceedings and instead of granting stay, the learned Judge could have adjourned the matter to await for the result of the pending suits and later could have disposed of the matter, and this would have been a just and proper course in the facts and circumstances of the case.
5. Heard the counsel on record. Perused the impugned order, pleadings of the parties in O.P.No. 21 of 2003 on the file of the Senior Civil Judge, Proddatur and also the pleadings of the respective parties in the pending suits i.e., O.S.Nos. 189 and 190 of 2002 on the file of the Junior Civil Judge, Kamalapuram.
6. The facts, in brief, are as hereunder.-
One Soma Saraswathi, the respondent in this Civil Revision Petition filed O.P.No. 21 of 2003 on the file of the Senior Civil Judge, Proddaturas against one Soma Ramamohan Reddy, the revision petitioner herein under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for the purpose of convenience) praying for restitution of conjugal rights. The stand taken by Soma Saraswathi is that she is the legally wedded wife of said Soma Ramamohan Reddy, the marriage having been celebrated on 11-10-2000 in Balaji Temple of Himayathnagar at Hyderabad and subsequent thereto he had left to London on 22-10-2000 for higher studies and after returning back to India, it came to light that he married again, and some other factual details also had been narrated, which may not be necessary for the purpose of disposal of the present Civil Revision Petition. Be that as it may, the said Soma Ramamohan Reddy filed O.S.No. 189 of 2002 on the file of the Junior Civil Judge, Kamalapuram praying for a negative declaration that the said Soma Saraswathi is not his wife and for consequential reliefs, and likewise the said Soma Saraswathi filed O.S.No. 190 of 2002 on the file of the Junior Civil Judge, Kamalapuram, praying for a positive declaration that she is the legally wedded wife of the said Soma Ramamohan Reddy and for other consequential reliefs. The said suits are pending disposal. It is not in controversy that these suits were instituted even prior to the filing of the present O.P. by the alleged wife. As already referred to supra the common question involved in all these proceedings, the two suits pending on the file of the Junior Civil Judge, Kamalapuram and the present O.P.No. 21 of 2003 on the file of the Senior Civil Judge, Proddatur, is whether Soma Saraswathi is the legally wedded wife of the said Soma Ramamohan Reddy. As can be seen from the impugned order, the evidence of P.Ws.1 to 3, R.Ws.1 to 3 had been recorded, Exs.A-1 to A-5 and B-1 to B-3 had been marked. Several factual findings, inclusive of certain positive findings had been recorded by the learned Judge. Be that as it may, the learned Judge without an application by either of the parties, in the light of the view expressed by this Court in K.V. Uma Maheswararao v. Gandam Sujatha wherein the learned Judge of this Court placed reliance on a decision of the Apex Court in P.V. Shetty v. B.S. Giridhar ultimately applied Section 10 of the Code and stayed the proceedings. Aggrieved by the same the husband, Soma Ramamohan Reddy, preferred this Civil Revision Petition under Article 227 of the Constitution of India.
7. It is needless to say that this Court is called upon to decide the legality or otherwise of the stay granted by the learned Judge invoking the provisions of Section 10 of the Code.
Section 10 of the Code reads as hereunder:
10. Stay of suit - No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.
Explanation The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.
The conditions, which are essential to apply Section 10 of the Code are in fact well settled. The decisions in Ayyanna v. Bhadraih and C.L Tandon v. Prem Pal Singh may be usefully referred to in this regard. The impugned order was made in a matrimonial proceeding, the original petition filed under the Act. It is needless to say that Section 10 of the Code has no application unless both are suits. One of the tests which may have to be applied is whether the matters in issue are one and the same and the findings if any whether would operate as resjudicata or not. The decisions in Life Pharmaceuticals v. B.M. Hall , Fulchand Motilal v. Mannar Lal and K. Nadar v. V.S.V.S. Nadar in this regard may be usefully referred to while deciding the applicability of Section 10 of the Code. In relation to a pending suit and a pending rent control proceeding, this Court had negatived the relief in G. Bhavani Sankar v. B. Rajeswara Rao 1996 (6) ALT 374 and also in yet another decision in M. Subbaramayya v. B.N. Swamy.. However a learned Judge of this Court in the light of the view expressed by the Apex Court in decision (2) supra in relation to the provisions of the Karnataka Rent Control Act, in subsequent decision in (1) supra had arrived at a conclusion, where a suit was filed in Gujarat State for declaration that there was no marriage between the plaintiff and the defendant and subsequent thereto original petition was moved before the matrimonial Court in Andhra Pradesh by the defendant for restitution of conjugal rights, the application under Section 10 of the Code can be maintained though the proceeding sought to be stayed is not in a Civil Court but in a Special Court. This view was followed by the learned Judge while passing the impugned order.
8. Section 21 of the Act dealing with the application of Act V of 1908 reads hereunder:
21. Application of Act 5, 1908:
Subject to the provisions contained in this Act and to such rules as the High Court may make in this behalf all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.
Sections 21,24 and 28 and Civil Procedure Code Section 151, Order11, Rule 21 -Trial Court striking out defence of the husband in a petition filed by wife for restitution of conjugal rights, for his absence when the case was posted for trial and for non-compliance with order of interim maintenance under Section 24, invoking Section 151, CPC - Not illegal -For enforcing such an order, striking out of defence can be resorted to without taking recourse to execution under Section 28, A.V. Subba Rao v. Shyamala 1990(1) ALT 132.
However, it is not in serious controversy that despite the specific provision under Section 21 -A of the Act, the power under Section 24 of the Code also can be exercised depending upon the facts and circumstances of a given case.
9. Section 21 -B of the Act dealing with the special provision relating to trial and disposal of petitions under the Act reads as hereunder:
21-B Special provision relating to trial and disposal of petitions under the Act:-
(1) The trial of a petition under this Act shall so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be maoe to conclude the trial within six months from the date of service of notice of the petition on the respondent.
(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.
It is needless to say that the expeditious disposal of the matrimonial proceedings had been over-emphasized by giving statutory sanction incorporating Section 21-B of the Act. Here is a case where in a matrimonial O.P., the learned Judge after recording the whole evidence suo motu had stayed the proceedings under Section 10 of the Code. In the light of the facts and circumstances, especially in view of the fact that the very status of the alleged wife is in controversy in all the three proceedings, the suits pending on the file of the Junior Civil judge, Kamalapuram and the present O.P., prima facie, the impugned order of the learned Judge cannot be found fault. However invoking Section 10 of the Code after hearing arguments may not be just and proper even in the light of the language employed in Section 10 of the Code that too suo motu. It is also needless to say that even if Section 10 of the Code can be made applicable, in appropriate cases, there can be consolidation of suits or the proceedings depending upon the facts. In Bhanwar Lal v. Mishri Lal 1996 ALHC 5311, where the respective parties filed suits for declaration of title and injunction and yet another suit for possession, the propercourse would be to try both the suits and it would not be proper to stay one suit and to take up the trial of the yet another suit. Relating to the power to consolidate the suits in appropriate cases, the decisions in P.P. Gupta v. East Asiatic Co. , Anandan Gupta v. Navin Agarwal and Venkatesha Prabhu v. Thejappa AIR 1982 Karnataka 319 may be referred to. No doubt contra view was expressed in Mugli v. Khaliq Dar AIR 1979 Jammu and Kashmir 84.
10. Be that as it may this is a Civil Revision Petition filed under Article 227 of the Constitution of India. Even if the impugned order, prima facie, cannot be found fault, whether the said order can be said to be justified in the facts and circumstances of the case. As already referred to supra, though the matrimonial O.P. is subsequent to the suits, Section 21-B of the Act specifically contemplates the expeditious disposal of such matters. In view of the same, this Court is of the considered opinion that this Court while exercising the power of general superintendence under Article 227 of the Constitution of India would be justified in disposing of the Civil Revision Petition with the following directions:
(1) The suits pending on the file of the Junior Civil Judge, Kamalapuram in O.S.Nos. 189 and 190 of 2002 (now said to be pending by virtue of transfer as O.S.Nos. 77 and 78 of 2004 on the file of the Principal Junior Civil Judge, Proddatur) are hereby withdrawn to be made over to the Court of the Senior Civil Judge, Proddatur, to be tried and disposed of along with O.P.No. 21 of 2003 inasmuch as already the whole evidence had been recorded in the said O.P. (2) It is also further clarified that both the parties are at liberty to adduce any further evidence if they so require in the suits which are being withdrawn from the file of the Junior Civil Judge, Kamalapuram, (now Proddatur) or to file the respective memos to treat the evidence already recorded in O.P.No. 21 of 2003 to be treated as evidence in the suits.
This Court is of the considered opinion that these directions would be just and proper in the facts and circumstances of the case. These directions are being given keeping in view the different provisions of the Act and Code aforesaid and it is needless to say that the impugned order granting stay under Section 10 of the Code is hereby set aside with a further direction to the learned Senior Civil Judge, Proddatur to proceed with all the matters on day to day basis immediately after the learned Judge receives the other suits now pending on the file of the Junior Civil Judge, Kamalapuram.
11. With the above directions, the Civil Revision Petition is disposed of. No order as to costs.