Vs. Anubha  Insc 195 (12 April 2002)
Mohapatra & Brijesh Kumar Brijesh Kumar, J.
learned counsel for the parties. This appeal has been preferred against the
judgment and order dated 18.10.2000 passed by Delhi High Court dismissing the
appeal challenging the order by which appellant's defence was struck of in the
proceeding, suit No.1966 of 1999 pending in Delhi High Court on the Original
appellant and the respondent were married on 11.05.1999. Thereafter they went
to USA. They do not seem to have pulled on
well so much so that the appellant filed a divorce petition in America as early as on 22.7.1999. The
notice of the said proceedings was served on the respondent.
however, left America and somehow managed to come back to
India. She filed a suit on 6.9.1999 in
Delhi High Court being Suit No.1966 of 1999 impleading the appellant Shri Vikas
Agarwal as defendant and praying that a decree be passed declaring that the
plaintiff is entitled to live separately, for maintenance amounting to 1500
dollars (Rs.65,250/-) expenses pendantalite etc. and for such other, further
orders, directions as the Court would deem fit and proper in the circumstances
of the case, so as to meet the ends of justice.
learned Single Judge of Delhi High Court passed an interim order on 5.11.1999
in the following terms:- "For the present in the interest of justice, and
since no permanent prejudice is likely to be caused to the Defendants if the
hearing in divorce case pending in the Superior Court, State of Connecticut,
U.S.A. is deferred for a short period, I restrain the Defendant from proceeding
further in the Superior Court, State at Connecticut, U.S.A. for a period of
thirty days from today." The appellant however, moved an application on
12.11.1999 for recall of the order dated 5.11.1999. The Court was later on
informed on 16.12.1999 that decree for divorce had been passed at Connecticut
U.S.A. The learned Single Judge, on 9.3.2000 passed an order, directing the
defendant to appear in person, under order 10 C.P.C. The defendant preferred an
appeal against the Order dated 9.3.2000 before the Division Bench which was
withdrawn with a statement that an application will be moved before the learned
Single Judge for recall of the order. It will not be necessary to mention about
many other applications, which have been moved in that connection from time to
time. The fact remains that ultimately by order dated 24.8.2000, the Court
struck of the defence of the appellant: The operative part of the order reads
as under:- "It is quite clear that despite several opportunities granted
to the defendant to appear before this Court he has resolutely refused to do
so. The defence of defendant is therefore, struck of." An appeal preferred
against the said order before the Division Bench of the High Court has also
been dismissed which order has been impugned in the present appeal.
appears that need to seek clarification from the defendant-appellant arose when
it came to the notice of the learned Single Judge of Delhi High Court that on
23rd November, 1999 the Court in America passed decree of divorce despite the
order of restraint against the defendant passed on 5.11.1999. The Court seems
to have doubts if the order passed by it was truly communicated to the American Court since there was no mention at all
about that fact in the order passed by the American Court. The appellant also moved an application for seeking
exemption from appearing in the Court in Delhi, as he apprehended that on
coming to India he may be arrested in pursuance of the proceedings initiated
against him under Section 498-A of the Indian Penal Code. By order dated July 3, 2000 the learned Single Judge took care
of the same and provided that the defendant would not be arrested in pursuance
to any complaint or pending FIR filed by the plaintiff. The defendant was
required to appear on August
24, 2000. He again
failed to appear in the Court, instead an affidavit of the Attorney of the
appellant in America was filed stating that he had
brought the injunction order to the notice of the American Court, but the Court had refused to
enforce any restraint order, as Indian Court had no jurisdiction over the U.S. Court's proceedings. Such information, it is submitted on behalf
of Respondent, as furnished through affidavit also leads to the inference that
the interim order dated November 5, 1999 was not correctly placed at all before
the American Court as the Delhi High Court had not passed any order putting any
restraint on the American Court to proceed with the matter.
restraint order was against the defendant, namely the appellant before us. It
is submitted on behalf of the Respondent that the defendant-appellant should
also have moved appropriate application along with interim order before the
court in America. In this back ground, the learned
Single Judge ordered for presence of the defendant in Court under Order 10 CPC.
On non-compliance of the said order, ultimately the defence was struck of.
Singh learned counsel appearing for the appellant has vehemently urged that
Order X CPC would not be applicable at all and the order of the Delhi High
Court in that respect is invalid. Our attention has been brought to Order X CPC
which reads as under:- Examination of parties by the Court.
Ascertainment whether allegations in pleadings are admitted or deniedAt the
first hearing of the suit the court shall ascertain from each party or his
pleader whether he admits or denies such allegations of fact as are made in the
plaint or written statement (if any) of the opposite party, and as are not
expressly or by necessary implication admitted or denied by the party against
whom they are made. The court shall record such admission and denials.
Oral examination of party, or companion of party.—
the first hearing of the suit, the court
with a view to elucidating matters in controversy in the suit examine orally
such of the parties to the suit appearing in person or present in the court, as
it deems fit; and
orally examine any person, able to answer any material question relating to the
suit, by whom any party appearing in person or present in court or his pleader
any subsequent hearing the court may orally examine any party appearing in
person or present in court, or any person, able to answer any material question
relating to the suit, by whom such party or his pleader is accompanied.
The court may, if it thinks fit, put in the course of an examination under this
rule questions suggested by either party.}
Substance of examination to be written. the substance of the examination shall
be reduced to writing by the Judge, and shall form part of the record.
Consequence of refusal or inability of pleader to answer.
Where the pleader of any party who appears by a pleader or any such person
accompanying a pleader as is referred to in Rule 2, refuses or is unable to
answer any material question relating to the suit which the court is of opinion
that the party whom he represents ought to answer, and is likely to be able to
answer if interrogated in person, the court may postpone the hearing of the
suit to a future day and direct that such party shall appear in person on such
such party fails without lawful excuse to appear in person on the day so
appointed, the court may pronounce judgment against him, or make such order in
relation to the suit as it thinks fit." On the basis of the above
provision, it is submitted that a party can be examined under Order X CPC on
the first hearing of the suit, but that stage has not yet reached in the
present case. It is submitted that first hearing of the suit would not be any
date before a date fixed for settlement of issues. In that connection, he has
placed reliance upon certain decisions in which first date of hearing has been
indicated in reference to rent control disputes between landlord and tenant.
The next contention is that under Rule 4 of Order X a party may be required to
appear where the counsel or the person accompanying the pleader refuses to or
is unable to answer any material question relating to the suit. In the present
case, it is submitted that the information sought was furnished to the Court.
There was no refusal on the part of the counsel or the person accompanying the
counsel, namely father of the defendant appellant to answer the questions.
Therefore, it was not necessary to order for personal attendance of the
another submission is that question in relation to which a party is required to
be present to be examined should be an important or material question relating
to the suit. It is submitted that the defendant was not required to give
clarification to any such important or material question. It is submitted that
for the above three reasons the order is bad. Yet another submission which has
been made is that no order of injunction could be passed against a foreign
court in view of the provisions contained under Section 41(a) & (b) of the
Specific Relief Act.
Bhushan, learned Senior Counsel appearing for the respondent submitted that the
questions raised by the learned counsel for the appellant are not relevant,
since undisputedly there is non-compliance of the order passed by the Court
requiring the defendant to be personally present in the Court. It is submitted
that the Section 41 (a) & (b) of the Specific Relief Act would not bar
passing of an order as passed on 5.11.1999 by the learned Single Judge of Delhi
High Court since such a bar is in relation to the superior Courts i.e. to say
the Courts in India, it would not apply to Courts out side India and next that
the restraint order is against the party namely, the defendant, who was
restrained from proceedings in the matter for a period of one month. (reliance
has been placed on Western Company of North America). It has been held in an appropriate case, it is open to
pass a restraint order against a party in proceedings pending in foreign
courts. It is further submitted that the learned Single Judge had passed the
injunction order on 5.11.1999 for a period of one month, but the decree was
granted on 23.11.1999. The defendant was bound by the order and should not have
taken any steps in furtherance of the proceedings pending in American Court. On the other hand, the decree of
divorce shows that the decree was sought and passed on agreement (no fault
divorce) between the parties which is described as fair and equitable. The
agreement is also stated to be attached with the decree. It is also to be seen
that columns meant for alimony etc. were left blank. The defendant was
restrained by the learned Single Judge of Delhi High Court, at the instance of
the wife, the respondent, from further proceeding in the divorce case. It is
submitted that this itself shows that the divorce was far from one on the basis
of agreement. In this view of the matter, learned counsel for the respondent
submits that the Court rightly felt need for personal appearance of the
defendant for clarification. The defendant failed to appear on one ground or
the other and lastly on the ground of apprehension of loosing job in America.
Court also gave time to the learned counsel for the appellant to find out in
case it would be possible for him to appear before the learned Single Judge of
Delhi High Court.
learned counsel has placed before the Court a letter received from the
appellant addressed to his counsel dated March 7,2002 expressing his inability to visit India for another 6 to 9 months due to
financial and job constraints. He further informs that he is involved in many
mission- critical projects.
granting of leave, would also not be possible, to him. It is also indicated
that he has no property, no house, no bank account, no job and no place to live
in India. These facts are hardly relevant
for the purposes of present matter. We need not go into the other facts and
circumstances, which have been placed by the learned counsel for the respondent
to show the manner in which, within two months of the marriage, the appellant
had filed "no fault divorce" in American Court and obtained decree on
agreement in the teeth of injunction order dated 5.11.1999 passed by Delhi High
Court and the appellant having abandoned the plaintiff-respondent in America
and the difficulties with which she managed to return to India.
Bhushan, learned senior counsel appearing on behalf of the respondent submits
that in the facts and circumstances of the case as indicated above, the learned
Single Judge of the Delhi High Court was quite justified in requiring the
defendant-appellant to personally appear before the Court for his
clarification. It is further submitted that the affidavit of the counsel for
the appellant in America annexed with the affidavit filed in the trial court
was not enough to clarify the position and the father of the appellant, as
found by the trial court, could not throw further light in the matter, having
not been present during the proceedings in America.
the question regarding first date of hearing is concerned, it is too technical
a ground to consider the matter like one in hand. The decisions which have been
relied upon relate to the disputes between tenant and landlord and while
interpreting the term "first date", the provisions of the Rent
Control Statutes have also been taken into account. It is submitted that
inherent powers of the Court under Section 151 C.P.C. can always be exercised
to advance interests of justice and the technicalities will have no place in
such matters. In this connection a reference has been made to a decision of
this Court reported in (1966) 3 S.C.R. 856 - M/s. Ram Chand and Sons Sugar
Mills Pvt. Ltd. Versus Kanhaya Lal Bhargava and others.
this case also the defendant was required to attend the Court to answer certain
questions but flouted the order and did not appear. Ultimately the defence was
struck of. The contention that inherent powers under Section 151 CPC could not
be exercised was repelled and it was held that there was nothing in Order XXXIX
of the Code which expressly or by necessary implication precluded the exercise
of inherent power of Court under Section 151 CPC and it was open for the Court
to pass a suitable consequential order under Section 151 CPC as may be
necessary for ends of justice or to prevent the abuse of process of Court. A
reference has also been made to a decision reported in 1962 Supp. (1) S.C.R.
450 - Manohar Lal Chopra versus Rai Bahadur Rao Raja Seth Hiralal so as to
indicate the wide scope of Section 151 CPC where as per the majority view, in
the facts and circumstances of the case, it was open to pass an injunction
order under Section 151 CPC where it may not be in conflict with any provision
of Order XXXIX of the Code or other provision of law. The submission which has
been advanced by the learned counsel for the respondent is that in the present
case the learned trial court was totally justified in requiring the presence of
the defendant and on his failure to comply with that order the trial court
rightly struck of defence which order would be perfectly justified in view of
inherent powers of the Court under Section 151 CPC besides other powers vested
would like to observe that Order X CPC in an enabling provision providing that
the court at the first hearing of the suit shall ascertain from each party
about their pleadings. It does not in any manner place any bar on the powers of
the court to seek clarification from any party in an appropriate case, at any
date earlier than one fixed for framing of issues so as to advance the interest
of justice. It would not be in violation of Order X CPC or in conflict thereof.
the facts and circumstances of the case we agree with the submission made on
behalf of the respondent and find that the appeal lacks merit so as to call for
any interference by us under Article 136 of the Constitution.
result the appeal is dismissed with costs.