Delhi High Court
Indira Khurana vs Prem Prakash on 19 December, 1996
Equivalent citations: 1997IAD(DELHI)236, 65(1997)DLT37, 1997(40)DRJ342
JUDGMENT Usha Mehra, J.
(1) MRS.INDIRA Khurana was married to respondent Mr.Prem Prakash. From this wedlock they have been blessed with two daughters. Relations between the parties became strained as a result the petitioner filed a petition for dissolution of marriage on the ground of cruelty and desertion. This petition was listed as HMA.No.338/94. During the pendency of that petition, respondent filed an application under Section 26 of the Hindu Marriage Act. He sought custody of the children for two hours every day and also for certain days. He further sought the custody for a period of three weeks commencing from 10th June,1994 or in the alternative their custody so that they could tour to the Western India including Bombay and Goa besides claiming other relief and visitation rights. He also filed a Habeas Corpus petition in the High Court. However, after talking to the children this Court did not grant the relief, in the meantime, his petition became infructuous. He accordingly withdrew his Habeas Corpus petition. The present petitioner filed a petition under Section 7 read with Section 10 of the Guardians & Wards Act,1890 (in short the Act) for her being appointed as guardian of both the daughters, namely, Radhika and Nitika. In that application, she also sought temporary custody of the person of the children to be with her. That application was contested by the respondent. The Court after getting the pleadings completed listed the application for arguments. While her application was pending, the petitioner herein wanted additional facts to be brought on record which she had already placed by way of her application under Order 8 Rule 9 read with Section 151 Civil Procedure Code in reply to the respondent's application under Section 26 of H.M.Act. That application is still pending.
(2) On 22nd May,1996 the petitioner moved an application under Order 6 Rule 17 CPC. She wanted to place on record the facts which came to her knowledge only on 21st May,1996. Her application under Order 6 Rule 17 Civil Procedure Code was rejected vide order dated 22nd May,1996 on the ground that it was not maintainable; that the petitioner had not furnished which part of the petition required addition or substitution; that she had knowledge of these facts as per her owning in her affidavit filed on record, hence contents of her application were misleading, case was listed for petitioner's evidence subject to payment of costs on 5th July,1996.
(3) That the respondent also filed applications on 24th May,1996 and on 27th May,1996 respectively for correction of the order of 22nd May,1996. On 31st May,1996 by the impugned order, the corrections sought by the respondent were allowed. That in the meantime, the case was listed for petitioner's evidence. On account of no fault of her the case had been adjourned on few dates. Case was listed on 5th July,1996 for her evidence on which date the Trial Court closed her evidence arbitrarily. She has felt aggrieved against all the three orders hence this revision.
(4) Grievance of the petitioner has been that she sought amendment in order to incorporate the intervening circumstances which she was not aware at the time of filing the petition. The law on amendment is very liberal. She had in fact already put to notice the respondent about these events in her additional affidavit filed in the Hindu Marriage Court in divorce proceedings. The fact that he has already married at the time of solemnising the marriage with her and that he was till date not divorced her are material facts and go to the root of the case, therefore, amendment was necessary. It is further contended that by rejecting to allow the amendment as sought by the petitioner, the Trial Court has shut out her defense without any valid reason. The fact that he has not given divorce to his first wife will disentitle him from being appointed as guardian of the children, therefore, this fact was necessary to be brought on record. Relying on the observations of this Court in the case of M/s Rising Sun Press, Delhi Vs. Shri Ram Narain, , Mr.Kuldeep Kumar, counsel for the petitioner contended that even if the amendment is not relevant still it ought to have been allowed because by seeking this amendment petitioner has not shown any malafide intention nor concealed any material fact from the Court. Similarly, by allowing the correction the whole complexion of the case defense set up by the respondent changed, therefore, it ought not to have been allowed.
(5) Refuting these arguments, Mr.Prem Prakash appearing in person contended that an application filed by the petitioner under Order 8 Rule 9 Civil Procedure Code pending in the Matrimonial Court has yet not been decided. She has not sought amendment in her petition under the Hindu Marriage Act. If this fact had come to her knowledge then she should have amended her divorce petition. Having not done so shows her malafide. No such plea she has taken in the Hindu Marriage Act. Moreover, as per the affidavit filed she had averred that she acquired this information on 10th May,1996, whereas in her application under Order 6 Rule 17 Civil Procedure Code she said she acquired the knowledge on 21st May,1996. Hence the Trial Court was justified in not believing her and thereby rejecting her application. In fact the petitioner had been seeking adjournment only when the date was fixed for her evidence and the Court had been allowing. She sought adjournments on one pretext or the other. Instead of leading her evidence, she filed that application seeking amendment. This was nothing but a pretext to seek adjournment. Hence Court did not permit her design to delay the proceedings. On the other hand, corrections sought by the respondent were not opposed by her counsel. Only insertion of the word "now" was disputed. The Trial Court vide order dated 31st May,1996 explained the reason for allowing the same. Moreover, no prejudice has been caused to the petitioner by the insertion of the word "now". As she persistently did not lead any evidence, the Court was justified in closing her evidence. In fact contradictory stand had been taken by counsel in the application and facts available on record. Her counsel made a statement that he told the petitioner not to come to the Court because he was going to move an application. These averments are contrary to the facts. The petitioner was very much in Court. That can be demonstrated from the fact that on the affidavit filed in support of her application under Order 6 Rule 17 Civil Procedure Code it was got attested on 22nd May,1996. The attestation on the affidavit shows that she was very much present in the Court, whereas her counsel stated that she had not come to Court. In view of this contradictory stand and the fact that she had not brought any evidence even on 5th July,1996, her evidence was rightly closed. Trial Court had in fact already given sufficient opportunities to her to lead evidence. It is only when she failed to avail the same that her evidence was closed.
(6) Besides taking objection on merits, the respondent took legal objection on the maintainability of this revision petition. This civil revision petition was filed on 15th July,1996. Alongwith this revision petition an application was filed seeking exemption from filing certified copies of the impugned orders. Till date of conclusion of the arguments those had not been filed. It is in this background respondent contended that the revision petition was incompetent. Before hearing arguments on merits it was urged that arguments on the maintainability of the petition should be heard first. Taking into consideration that this legal objection is relevant it was decided that first arguments on the maintainability of this revision petition he heard and decided.
(7) It was in this background that arguments on the maintainability of the petition were heard. Mr.Prem Prakash contended that certified copies of the impugned orders are a must. In the absence of the same revision petition does not lie. In order to seek exemption the petitioner filed an application on which this Court exempted the filing of the certified copies subject to just exception. Subject to just exception means that certified copies should be filed within limitation and on its being available from the Copying Agency within time as prescribed in law. In this case in the application filed by the petitioner bearing CM.No.2473/96 she had mentioned in para 2 that :- "THE present case is of an extremely urgent and important nature. It has not been possible for the petitioner to procure the certified copy of the impugned order dated 22nd May,1996 and 31st May,1996 due to paucity of time. The petitioner undertakes to place the certified copy as soon as the same is procured."
(8) In para 5(a) of this application it has been written as under :- "ITis, therefore, most respectfully prayed that this Hon'ble Court may be pleased to exempt the petitioner from filing the certified copy of the impugned order dated 22nd May,1996, 31st May,1996 and 5th July,1996 including all the annexures and dim, hand written and underlined annexures alongwith the revision petition and be pleased to hear the matter on merits."
(9) Relying on these two paragraphs respondent contended that the petitioner in fact conveyed to this Court that she had applied for certified copies of the impugned orders as and when available those would be filed and till then she be exempted from filing the same. Reading of para No.2 of her application clearly show that she had applied for certified copies and would bring them on record in time. Whereas the truth of the matter is that neither the certified copies were applied on 15th July,1996 nor till final arguments were heard. When the revision petition was filed she had not applied for certified copies but misrepresented the facts to this Court. In the absence of certified copies the revision petition was not maintainable. In this regard he placed reliance on the decision of this Court in the case of Shafiq Ahmed Vs. Mst.Shah Jehan Begum, and in the case of P.C.Puri Vs. M/s Polyolefins Industries Ltd. & ors., . ÿIn both these cases it has been held that in the absence of certified copies filed alongwith the revision petition or till the extended date the revision petition is not maintainable.
(10) On the other hand, Mr.Kuldeep Kumar, counsel for the petitioner urged that for filing the revision petition certified copies of the impugned orders were not necessary. Provisions of Rule 7 of Punjab High Court Rules are not attracted in the facts of this case. Under Section 115 Civil Procedure Code the Court has suo motu powers to call for the record of the Trial Court in order to decide the revision. Therefore, for deciding the revision when Court can suo motu call for the record, filing of certified copies is not necessary. Certified copy is filed in order to prove that authentic copy of the order has been filed. But when Court calls for the record then there is no relevance of certified copy. Even otherwise rules do not envisage filing of certified copy with the revision. Whereas if it had been appeal filed under Order 41 Civil Procedure Code the appellant is required under law to file the certified copy. In appeal, the Court cannot suo motu call for the record of the Trial Court whereas in the revision it can, therefore, even if the certified copy is not there it will have no effect on the merits of the case. Moreover, the counsel for the petitioner was under mistaken belief that since Court has power to suo motu call for the record of the Trial Court hence certified copy of the impugned order will not be required. It was under this mistaken belief certified copies were not applied for nor filed in time. But when the case was reserved for orders, the petitioner on respondent's taking objection came to know that certified copies were required. Hence he applied for the same on 29th October,1996. On getting the same he placed those on record. Since now certified copies have been placed on record and petitioner has sought condensation of delay in filing the same, hence revision petition cannot be dismissed as incompetent. Further while granting the exemption the Court only used the word "just exception". It nowhere stated that the certified copies should be filed within limitation.
(11) I have given my thoughtful consideration to this legal objection raised by the respondent about the maintainability of this revision petition. Admittedly, as on the date of filing the petition, the petitioner had neither applied for the copies of the impugned orders nor informed this fact to this Court at the time of filing the petition. Rather she filed an application bearing CM.No.2473/96 through which she mislead this Court in believing that she had applied for the certified copies of the impugned orders and further as and when the same will be procured those would be placed on record. Had she not represented so the Registry of this Court would not have entertained the revision petition. Because of the application seeking exemption from filing certified copies that case was listed before this Court. This Court under the impression that petitioner had applied for the certified copies allowed the exemption application subject to just exception. "Subject to just exception" does not mean that the petitioner was not to file certified copies at all or not within time. Just exception means that the certified copy has to be filed in accordance with rule and the law on the point. Rules have been laid under the Delhi High Court Rules, Practice & Procedure. Rule 7(1) of the said Rules clearly stipulate that for filing the revision petition, certified copy of the impugned order has to be filed. This, to my mind, was in the knowledge of the counsel for the petitioner when he applied for exemption vide application No.2473/96. Had he not been sure about this provision of law, he would not have written in para No.2 of the said application that petitioner undertakes to place on record the certified copy of the impugned order as and when procured. Instead he would have written that the certified copy was not necessary. The contention of counsel for the petitioner that there was fault of the lawyer and that petitioner should not be punished is without substance. The arguments of negligence of counsel cannot be inferred from the facts of this case nor such a negligence can be condemned as held by this Court in the case of Banwari Lal & Sons Pvt.Ltd. Vs. Union of India, , where it was held that mistake of counsel should not be a device to conceal negligence or inaction. The Courts are meant for honest litigation. By misrepresenting the facts as mentioned in para No.2 of the application bearing CM.No.2478/96 the petitioner got the exemption. The revision was allowed to be filed without any objection. For such action of the petitioner she does not deserve any discretion.
(12) Contention of counsel for the petitioner that Rule 7 is not applicable or that with the revision petition certified copy need not be filed, such arguments were repelled in similar circumstances by this Court in the case of Jagdish Parsad Gupta Vs. Sh.Surinder Kumar & ors., 1979 (1) Rcr page 737 decided on 2nd April,1979, wherein it was observed that : "THE High Court of Delhi by force of Section 7 of Delhi High Court Act,1966 is empowered to make rules and orders with respect to practice and procedure, provided that any rules or orders which are in force immediately before the appointed day i.e. 31st October,1966 with respect to practice and procedure in the High Court of Punjab shall, until varied or revoked by rules or orders made by the High Court of Delhi, apply with necessary modification in relation to practice and procedure in the High Court of Delhi, as if made by that High Court. Rules have been framed by the Competent Authority relating to process in the High Court and are contained in Volume V of the Rules and Orders of the Punjab High Court. Chapter-1 deals with the presentation and reception of appeals, petitions and applications for review and revision. Rules 6 and 7 read as under : Rule 6. A petition to the High Court to exercise the powers conferred by Section 44 of the Punjab Courts Act shall specify the particular ground of which the aid of the High Court is invoked. a)if the ground be that the Court which decided the case exercises jurisdiction not vested in it the law the petition shall set out clearly the particular exercise jurisdiction complained of; b)if it be that the Court which decided the case failed to exercise a jurisdiction so vested, the jurisdiction which ought in the petitioner's opinion to have, and has not been exercised shall be clearly set out' c)if it be that the Court acted in the exercise of its jurisdiction with material irregularity, the particular irregularity or irregularities complained of shall be similarly set out." Rule 7. Every such petition shall be stamped as required by law and shall be accompanied by a copy of the decree or order in respect of which such application is made and by a copy of the judgment upon which such decree is founded. In the case of petitions for revision of the decree or order of an appellate Court a copy of the judgment or order of the Court of the first instance shall also be filed. The rule requires filing of a copy of the order of the Trial Court as well. Copy means certified copy.
(13) After considering the provisions of Section 44 of the Punjab Courts Act, the Court opined that :- Rule 6 may refer to the petition to the High Court for revision in exercise of the powers conferred by Section 44 of the Punjab Courts Act, yet the same practice and procedure applicable to the revision under Section 44 of the Punjab Court Act would be equally applicable to the filing of the revision petition under Section 115 of the Code of Civil Procedure. The practice and procedure generally followed by this Court with regard to similar revision petitions would have to be followed in case of revision petitions under Section 115 of CPC. The practice and procedure of filing of the revision petition under Section 115 of the Code of Civil Procedure would be regulated by the said Rules 6 and 7 and thus an obligation on the petitioner to file certified copy of the orders mentioned. The Court must have before it the certified copy of the impugned order. In the absence of any authenticated copy being available, no competent adjudication would be possible. In it only where it is needed that the Court calls for record in a civil revision.
(14) It is not in each and every case the Court calls for the record. It is only where it is so required that the Court suo motu calls for the record. At the same time, duty is caste on the petitioner to file the certified copy with the petition. This Court in the case of Shafiq Ahmed Vs. Mst.Shah Jehan Begum, observed that in the absence of certified copy being accompanied with the revision petition, the revision was incompetent. To the same effect are the observations of this Court in the case of P.C.Puri Vs. Polyolefins Industries Ltd. & ors., . In that case against temporary stay granted, revision was filed without filing the certified copies of the orders of the Trial Court. This Court held that the revision was liable to be dismissed. The Court relied on the provisions of High Court orders and Rules and in particular Rule 7 of Chapter-1 Volume 5. It was observed that : "IT was encumbent on the petitioner to file certified copy of the lower Court judgment as required under rule 7 of Chapter 1-A Volume 5 as applicable to this Court and failure to file such copy makes the revision incompetent. "
(15) In the application for condensation of delay bearing CM.No.4060/96 three grounds have been given by the petitioner for condensation of delay in filing the certified copies in time. These are namely (i) that the counsel was under the impression that since exemption had been granted by the court, therefore, it was not necessary to file certified copy on a particular date, particularly when the Court had before it the Trial Court record which was called at the instance of the respondent. Hence, filing of the certified copies was not necessary. (ii) He was under the impression that under Delhi High Court Rules, Chapter 14 deals with Appeals & Revisions. In Part-B of General Procedure of Appellate Courts two provisions are provided. Second proviso of the same provides that copies of memorandum of appeal should accompany true copy of the order duly authenticated by an Advocate. On the interpretation of this provision counsel formed an opinion that copy of the order duly authenticated by the Lawyer was sufficient to file with the revision petition under Section 115 CPC. Nothing has been expressly mentioned in the Civil Procedure Code that the petitioner must file certified copy as required under Order 41 Rule 1 CPC. Under that provision it has been expressly provided that alongwith memorandum of appeal petitioner has to file certified copy of the order. But no such provisions are there in the Civil Procedure Code casting duty on the petitioner to file certified copy with the revision petition. Civil Procedure Code does not provide that certified copy be filed within three months otherwise revision will become defective or incompetent. Because of these impressions of the counsel, the certified copy could not be filed. I am afraid, all these arguments are without substance. This would have been justified had the petitioner not filed an application seeking exemption vide CM.No.2473/96. Reading of this application shows that the counsel was fully aware that alongwith the revision petition certified copy was a must. Through this application petitioner gave an impression that the copies had been applied for and will be filed on being procured. To that extent he undertook to do so. Therefore, now saying that counsel was under that impression appears to be an afterthought argument. So far as the contention of counsel for the petitioner that under Section 115 of Civil Procedure Code filing of certified copies was not necessary, this argument is against the law laid down by this Court in the case of Shri Jagdish Parsad Gupta (supra).
(16) For the reasons stated above, I find that it is not a fit case for condoning the delay. Since the revision petition was not accompanied by certified copies of the impugned orders, hence the revision petition is not competent. It is liable to be dismissed. Order accordingly. Parties to appear before the Trial Court on 14th January,1997.