Karnataka High Court
Smt Mangala Suryadevara vs Dr Srinivasa Reddy Appakondu on 8 August, 2016
Equivalent citations: 2016 (4) AKR 287, (2017) 170 ALLINDCAS 485 (KAR), (2016) 6 KANT LJ 416, (2016) 4 ICC 698
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST 2016
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION Nos.8590-8591/2015 (GM-FC)
BETWEEN:
SMT. MANGALA SURYADEVARA
W/O. SRINIVAS R APPAKONDU,
AGED ABOUT 44 YEARS,
R/AT NO. 814, 9TH MAIN,
4TH B CROSS, HRBR LAYOUT,
1ST BLOCK, KALYAN NAGAR,
BENGALURU 560043
... PETITIONER
(BY SRI. RAVI B NAIK, SR. COUNSEL FOR
SMT. VIJETHA R NAIK, ADV.)
AND:
DR. SRINIVASA REDDY APPAKONDU
S/O. A. RAMA SUBBA REDDY,
AGED ABOUT 43 YEARS,
R/AT VILLA NO.86,
INDU FORTUNE FIELDS,
KPHB COLONY,
HYDERABAD 560072
ALSO AT NO.120, COMPBELL DRIVE,
APARTMENT # 118, HAZARD,
KENTUCKY 41701
UNITED STATES OF AMERICA
... RESPONDENT
(BY SRI. C V NAGESH, SR. COUNSEL FOR
SRI. RAGHAVENDRA K, ADV.)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA,
WITH A PRAYER TO QUASH THE ORDERS DTD.13.02.2015
2
PASSED BY THE 1ST ADDITIONAL PRINCIPAL JUDGE
FAMILY COURT BENGALURU ON I.A.NOS.4 & 6 IN
O.S.NO.64/2014 VIDE ANNEX-H & J AND DIRECT THE 1ST
ADDITIONAL PRINCIPAL JUDGE FAMILY COURT,
BENGALURU FOR INITIATION AND REFERENCE OF
CONTEMPT OF COURT PROCEEDINGS AGAINST THE
FATHER OF THE RESPONDENT HEREIN
MR.A.RAMASUBBA REDDY IN O.S.NO.64/2014 AS SOUGHT
IN THE APPLICATION VIDE ANNEX-C AND ETC.
THESE WRIT PETITIONS HAVING BEEN RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING :
ORDER
The marriage of the petitioner and the respondent was solemnized on 15.12.2006 at Tirupathi. Thereafter they were residing at United States of America as the respondent is a practicing Cardiologist at that place. Due to differences in their married life, the parties have initiated several legal proceedings against each other. The respondent accordingly has secured a decree of dissolution dated 15.07.2009 from the Fayette Family Court, V Division, Common Wealth of Kentucky, 22nd Judicial Circuit, USA. The petitioner however would contend that such decree is not valid. It is in that view the petitioner has filed a suit in O.S.No.64/2014 before the Prl. Judge Family Court, Bengaluru on 13.03.2014 3 seeking for a judgment and decree in her favour declaring that the marriage of the petitioner and the respondent is deemed to be continuing and that they continue to remain as husband and wife. The suit summons has been served on the defendant viz., the respondent herein.
2. In the said suit, the father of the respondent Sri A.Ramasubba Reddy is representing the respondent as his General Power of Attorney holder ('GPA' for short). In that direction, the application in IA-VI is filed under Order III Rule 2 of CPC to permit the defendant to contest the suit through the GPA holder. The petitioner herein had filed an application in IA-IV seeking initiation and reference of the proceedings against the defendant under Section 17(2)(b) of the Contempt of Courts Act read with Section 7(2)(b) of the Family Courts Act to take necessary action against the GPA holder. The Family Court after taking into consideration the scope of order III Rule 1 and 2 of CPC has dismissed the application filed by the petitioner in 4 IA-IV and allowed the application filed by the respondent in IA-VI. The petitioner claiming to be aggrieved is before this Court. The scope of consideration in these petitions is with regard to the correctness or otherwise of the leave granted by the Family Court to the respondent to be represented by his GPA holder.
3. Heard Sri Ravi B.Naik, learned senior counsel for the petitioner and Sri C.V.Nagesh, learned senior counsel for the respondent and perused the petition papers.
4. As noticed, the proceedings initiated before the Family Court is the suit filed by the petitioner seeking a declaration about the status of the petitioner and the respondent to continue as husband and wife by holding that a decree of dissolution dated 15.07.2009 granted by a Foreign Court would not bind them. In such suit, summons has been ordered to the respondent who is a resident of USA as he is a practicing Cardiologist at that place. It is in that 5 circumstance, since it is the case of the respondent that he would not be in a position to appear on all hearing dates personally, he has desired that his father represent him in the proceedings as a GPA holder. Since such appearance was made as a GPA holder, the application in IA-IV was filed by the petitioner herein seeking action against him. In that circumstance, the application in IA-VI is filed by the respondent herein invoking the provision contained in Order III Rule 2 of CPC to permit him as the defendant to contest the matter through his father, the GPA holder. The leave sought is granted. If such leave granted is sustainable, the consideration of the prayer in IA-IV in any event will not arise.
5. The objection to grant of such leave is on the ground that in a matrimonial proceedings, when under Section 13 of the Family Courts Act even appearance of learned counsel on behalf of a party can only be done with leave of the Court, permitting a GPA holder to appear in that circumstance would not be justified. It is 6 contended that there would be personal issues which will fall for consideration in a matrimonial matter and in a circumstance where reconciliation is also to be attempted by the Court, it is necessary that the defendant husband should have appeared in person and the Court should not permit the GPA holder to appear.
6. The contention on behalf of the respondent is that not only the provision contained in Order III Rule 2 of CPC, but even Section 13 of the Family Courts Act would provide for the Court at its discretion to permit representation of a party to the proceedings by another person. In that view, when an application is filed and the Court below has taken note of the same and exercised its discretion, such order does not call for interference. It is contended that the respondent is a busy cardiologist practicing in USA and it is not practical to expect him to remain present before the Court below during the entire proceedings. In that circumstance, the GPA holder who is none other than his father has been authorized to appear on his behalf 7 and all that the Court below has done at this stage is to grant leave for the GPA holder to appear. Any other objection that would arise is only based on the relevance of the evidence if the GPA holder chooses to tender evidence at that stage. In addition it is contended that the conduct of the petitioner in filing repeated cases under different provisions has raised an apprehension in the mind of the respondent that if he travels down to India, the petitioner and her family members are likely to create such a situation whereby not only harm will be caused to the respondent, but his career would be jeopardized as all efforts would be made by the petitioner and her family to have his passport impounded.
7. Learned senior counsel for the petitioner has relied on the decision of the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd and others [(2005)2 SCC 217] wherein it is held that the power to depose in place of the principal extends only to depositions in respect 8 of 'acts' done by the GPA holder in exercise of the power granted by the instrument and that GPA holder cannot depose for the principal in respect of matters of which only the principal can have personal knowledge and in respect of which the principal is liable to be cross examined. The decision in the case of Jagraj Singh vs. Birpal Kaur [(2007) 2 SCC 564] is relied on to contend that a Court of law may order either the plaintiff or the defendant to remain personally present and order XXXIIA Rule 3 of CPC requires the Court to make efforts for settlement of family disputes since under the Hindu Marriage Act, it provides for restitution of conjugal rights, judicial separation as also nullity of marriage and divorce. It is held therein that the approach of a Court of law in matrimonial matters is much more constructive, affirmative and productive rather than abstract theoretical or doctrinaire and as such the matrimonial matters are to be considered with human angle and sensitivity. It is pointed out that in the said case a similar apprehension as had been put forth by the respondent was also taken into consideration and 9 protection against arrest had been ordered and therefore in the instant case also at best the respondent can only seek for such protection, if any and not decline to appear before the Court of law.
8. The learned senior counsel for the respondent on the other hand, apart from referring to the very same decision in the case of Janki Vashdeo Bhojwani, would point out the scope of Order III Rules 1 and 2 of CPC which has been considered therein relating to the scope of a GPA holder to depose in certain circumstance. In addition reliance is placed on the decision in the case of Neelappa vs. State of Karnataka (ILR 1999 Kar 2822) wherein a learned Judge of this Court while considering such opportunity to appear through a GPA holder in the background of the provisions contained in Sections 9, 10 and 13 of the Family Courts Act, in a circumstance where such leave had been refused by the Family Court, with reference to decisions of the Hon'ble Supreme Court referred therein was of the opinion that such opportunity to represent 10 cannot be denied. In the said decision, the position of law was settled as hereunder:
10. There is nothing in Act or Rules which prohibits a petition being filed by an Authorised Agent, or requires a petition should be presented by the petitioner in person. Therefore, there is no bar to a petition being presented to the Court by an Agent (Attorney holder). Even a legal practitioner who holds a power of Attorney to present the petition, may 'present' a petition, but may not be able to 'represent' the petitioner in the proceedings unless permitted by the Family Court. Similarly, there is nothing in the Act or Rules requiring the Family Court to refuse to recognise or accept the appearance of a respondent, through an Authorised agent on the date fixed for appearance. A respondent can enter appearance through an Authorised Agent (who can also be a legal practitioner) with an application seeking permission to be represented by a legal practitioner.
11. A party may choose to appear through and be represented by an Authorised Agent other than a Legal Practitioner, in which event permission under Section 13 is not necessary. A Family Court, having regard to the facts and circumstances, may of course make a specific order for the personal appearance of a party. Only if such an order is made, the party has to make an application for exemption from personal appearance if he/she is not 11 in a position to appear in the matter. Even if the Family Court refuses permission to the parties to be represented by a legal practitioner, the parties may be represented by authorised Agents other than a legal practitioners. But, if one side has been permitted to be represented by a legal practitioner, the Family Court should not refuse permission to the other side to be represented by a legal practitioner.
To do so would be in violation of principles of natural justice.
(emphasis supplied)
9. In that background the learned Judge in the said case of Komal S.Padukone (supra) on adverting to the facts therein and keeping in view that the wife was staying in the United States, the contention of the learned counsel for the husband was taken note and it was concluded as hereunder:
16. Learned Counsel for the second respondent submitted that the proviso to Rule 1 of Order III of the CPC enabled the Court to direct the appearance of a party in person and therefore the respondent before the Family Court was bound to appear in person. But, the said provision is a special provision, under which the Court can, by a specific order, on the facts and circumstances of the case, require the appearance of a party. There is no such special order in this case.12
The Family Court has proceeded on the assumption that in all proceedings before it, the respondents should appear in person and then file an application to engage the counsel. The Family Court has inferred from Section 9, which requires the Court to attempt settlement in the first instance, and Section 13 which denies representation by a Legal practitioner unless permitted, that there is an obligation on the parties to appear in person in response to the notice and then continue to appear in person on every hearing date. As noticed above there is no basis for such inference or assumption. Section 9 makes it clear that the duty of Family Court to make efforts for settlement in the first instance is "where it is possible to do, consistent with the nature and circumstances of the case". Where one of the parties is abroad or is disabled, it may not be possible to attempt settlement in the first instance. But, that does not mean that the party who is unable to appear, should be denied the right to prosecute or defend the proceedings. All that it means is that the effort to make settlement, gets postponed to a later date when parties are able to appear. In some cases, it may not be possible to attempt settlement at all due to the peculiar facts and circumstances. The statutory duty cast on the part of the Family Court to attempt settlement cannot be converted by the Court into a penalising weapon to deny representation or right to contest, merely on the ground that a party has by his or her absence, has come in the way of the attempt for settlement. If the 13 reasons are bona fide, the Family Court should permit representation through legal practitioner or Authorised Agent. In this case, as the petitioner is abroad and has stated that she will not be able to come till July 1999, the Court ought to have allowed IA III.
(emphasis supplied)
10. Therefore in the background of the provisions contained in order III Rule 2 CPC and Section 13 of the Family Courts Act, if the decisions as referred to by the learned senior counsel for both the parties is taken into consideration cumulatively, the law could be crystallized to hold that a party even to a matrimonial proceedings cannot be denied the right to be represented by an authorized agent or a GPA holder as a rule. However, such right would stand circumscribed in the nature as stated by the Hon'ble Supreme Court in the decisions cited supra by the learned senior counsel for the petitioner, both with regard to the extent to which such GPA holder can depose and the validity of such deposition in respect of the 'acts' done by the GPA holder as against the deposition which would be relevant in the facts of the case to flow from the 14 principal himself/herself relating to the subject matter of the litigation. It is no doubt true that in a matrimonial matter insofar as the 'acts' relating to the subject matter, the deposition of the parties only will be relevant. Even if that be the position, the said decisions would also refer to the power of the Court concerned under Order III Rule 1 and order IX Rule 12 of CPC to direct a party to the proceedings to appear in person in appropriate cases. Further it also indicates that as provided under Order XXXIIA Rule 3 of CPC the Court is required to make efforts for settlement of family disputes. As noticed, the case on hand no doubt is a matrimonial matter, but the question at this stage is as to whether even in that background the order impugned herein is of a nature which calls for interference at this stage if the above position of law as enunciated is kept in perspective.
11. By the order impugned dated 13.02.2015 insofar as IA-IV the Court below has held that at this stage without going into the merits of the case whether 15 the power of attorney produced by the defendant is valid one or invalid one is to be decided based on enquiry, as such the application is not maintainable. Insofar as IA-VI filed by the defendant under Order III Rule 2 of CPC, the power of attorney holder of the defendant therein is permitted to appear and engage the services of the Pleader to represent in the case. Hence, at this stage all that the Court below has done is to permit the defendant to be represented by a GPA holder and proceed with the case through a learned counsel. Such order is in accordance with the legal position noticed above.
12. The contention of the plaintiff before the Court below is that in the facts and circumstances there is a possibility of settlement in the matter if the defendant is directed to appear in person and in that circumstance, whether the Court below should invoke the power to direct the defendant to remain personally present; while doing so, whether the apprehension put forth by the defendant about being harmed if he 16 appears in person and in that view whether the appearance should be directed with appropriate protection are all issues which are still at large to be considered by the Court below and such contentions put forth in the instant petition cannot be decided in abstract by enlarging the scope of the instant petition which relates only to assail the impugned order. All the said aspects are left open to be urged before the Court below at the appropriate stage, which will take an appropriate decision in the matter. Hence, insofar as the order impugned which merely permits the defendant to be represented by a GPA holder and to engage a learned counsel, no fault could be found.
In that view, for all the aforestated reasons the impugned order dated 13.02.2015 does not call for interference. The petitions are accordingly disposed of, subject to the observations contained above. No costs.
Sd/-
JUDGE akc/bms