Delhi High Court - Orders
Damini Manchanda vs Avinash Bhambhani on 12 January, 2022
Author: Asha Menon
Bench: Asha Menon
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 13/2022, I.As.566/2022 (of plaintiff u/O XXXIX R-1&2 CPC
for ad-interim relief) & 567/2022 (for exemption)
DAMINI MANCHANDA ..... Plaintiff
Through: Ms.Preeti Singh, Mr. Sunklan Porwal,
Ms.Saumya Dwivedi, Mr. Shubham
Kaushik and Ms. Kumkum
Mandhanya, Advs.
Versus
AVINASH BHAMBHANI ..... Defendant
Through: None
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
% 12.01.2022
[VIA VIDEO CONFERENCING]
I.A.567/2022 (Exemption)
1. Allowed subject to just exceptions.
2. The application is disposed of.
CS(OS) 13/2022 & I.A.566/2022 (of plaintiff u/O XXXIX R-1&2 CPC for ad-interim relief)
3. The plaint be registered as a suit.
4. Issue summons in the suit and notice in the application to the defendant by all permissible modes, including through email, returnable before the next date of hearing.
Signature Not Verified Signed By:MANJEET KAUR CS(OS) 13/2022 Page 1 of 4 Signing Date:12.01.2022 22:54:005. The summons shall indicate that the written statement to the suit and reply to the application be filed by the defendant within thirty days from the date of receipt of the summons. The defendant shall also file the affidavit of admission/denial of the document(s) filed by the plaintiff, failing which the written statement shall not be taken on record.
6. The plaintiff is at liberty to file replication to the written statement and rejoinder to the reply filed by the defendant within thirty days following the filing of the written statement/reply. The replication shall be accompanied by the affidavit of admission/denial in respect of the documents filed by the defendant, failing which the replication shall not be taken on record.
7. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the time lines.
8. Ms.Preeti Singh, learned counsel for the plaintiff, has submitted that urgent interim directions are required to be issued in this case. It is submitted that the parties stand in the relationship of husband and wife. Due to matrimonial disputes, the plaintiff had instituted proceedings for divorce by filing a case on 16th December, 2020 against the defendant, which is pending before the Family Court, Saket, New Delhi. Though summons were issued in that suit on 25th February, 2021, apparently, the defendant had not yet appeared before the learned Family Court either himself or through a pleader. It is further submitted that the defendant was, at that time, residing in India and also responded to a legal notice issued by the plaintiff, on 10 th February, 2021 through a lawyer whose office is also in New Delhi. In that Signature Not Verified Signed By:MANJEET KAUR CS(OS) 13/2022 Page 2 of 4 Signing Date:12.01.2022 22:54:00 reply, the address of the defendant was affirmed to be E-28, Neb Valley, Sainik Farms, New Delhi-110068. It is submitted that, however, in September, 2021, the defendant shifted with his children to Toronto, Canada. Thereafter, on 13th December, 2021, he is stated to have filed a divorce case against the plaintiff in a court there.
9. Learned counsel for the plaintiff submits that permitting the continuation of the suit filed by the defendant before the Superior Court of Justice, Ontario, Toronto, Canada, would only lead to multiplicity of the proceedings as well as ambiguity. The learned counsel submitted that prejudice was being caused to the plaintiff inasmuch as she had opted for the jurisdiction of the Indian court first and it was only a year later that defendant had instituted the divorce proceedings in Canada. The learned counsel stressed that the larger issue was ambiguity inasmuch as the two courts could render conflicting decisions. Reliance has been placed on the judgment of this court in Harmeeta Singh v. Rajat Taneja, 2003 SCC OnLine Del 60 to submit that this Court had the jurisdiction to stay the proceedings before the court in Canada.
10. Having heard learned counsel in detail and considered the material placed on the record, this Court is of the view that no prima facie case has been disclosed for this Court to exercise its discretion in her favour to restrain the defendant from continuing with the divorce proceedings pending before the Superior Court of Justice, Ontario, Toronto, Canada.
11. It is to be noticed that though it was submitted by the learned counsel for the plaintiff that the parties are Indians and were married as per Hindu Signature Not Verified Signed By:MANJEET KAUR CS(OS) 13/2022 Page 3 of 4 Signing Date:12.01.2022 22:54:00 rites, at the time the plaintiff chose to file the divorce petition, she was residing in Canada i.e., 1166, Mcbride Avenue, Mississaunga Onatro, L5C 1M8, Canada. Interestingly, in the „Memo of Parties‟, while the plaintiff is described as „D/o Om Prakash Manchanda, R/o. E-28, Neb Valley, Neb Sarai, Sainik Farm, New Delhi-110068‟, it is also stated as "presently residing at 1166, Mcbride Avenue, Mississaunga Onatro, L5C 1M8, Canada". Despite the averments in the plaint that the defendant has left for Canada and was presently residing there, the plaintiff has given the Delhi address i.e., E-28, Neb Valley, Sainik Farms, New Delhi-110068, again adding, presently at 2913-233 WEBB DR, Mississauga on L5B 0E8, Canada. In other words, presently both parties are residing in Canada and none of them is in India. Unlike in the case of Harmeeta Singh (supra), where the appellant Harmeeta Singh was found to have no possibility of attending the hearing in the USA on account of Visa problems, no such situation prevails here. The plaintiff is well situated to take care of her interests.
12. No ground is made out for grant of interim injunction at this stage.
13. List before the Joint Registrar on 7th March, 2022 for completion of service and pleadings.
14. The order be uploaded on the website forthwith.
ASHA MENON, J.
JANUARY 12, 2022 s Signature Not Verified Signed By:MANJEET KAUR CS(OS) 13/2022 Page 4 of 4 Signing Date:12.01.2022 22:54:00