HON'BLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NO.165 OF 2023
Date: 28.04.2023
Between:
Mr. Siddharth Jain s/o. Rupender Jain,
Aged about 30 years, occu: Service,
r/o.H.No.1-37-31, Paigah Colony,
SP Road, Balam Rai, Secunderabad.
.... Petitioner
And
Mrs. Neha Salecha, d/o. Padam Salecha,
Aged about 29 years, occu: Business,
r/o.181, Tanjong Rhu Road, # 02-01,
Singapore.
..... Respondent
This Court made the following:
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HON'BLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NO.165 OF 2023
ORDER :
Heard learned senior counsel Sri A Venkatesh appearing for petitioner and learned counsel for respondent Sri D Madhava Rao.
2. Petitioner and respondent married in Bangkok on 27.2.2017 and the marriage was solmonized as per the Hindu Marriage Act. It appears, they stayed in Hyderabad from 1.3.2017 to 5.3.2017. On 5.4.2017 respondent flew to Singapore, her maternal home and returned on 6.5.2017 along with her parents. Differences arose between them and petitioner filed F.C.O.P No.263 of 2019 before the Principal Family Court, City Civil Court, Secunderabad praying to grant decree dissolving the marriage held on 27.2.2017. In F.C.O.P petitioner has furnished address of the respondent as 28, Scotts Road, #13-05, Singapore-228223. By order dated 16.9.2019, F.C.O.P was allowed dissolving the marriage, as it was not contested by respondent.
3. Respondent filed I.A. No. 553 of 2021 praying to set aside the exparte decree dated 16.9.2019 dissolving the marriage and to pass orders. Said I.A. is pending consideration before the Family Court. In the said I.A., petitioner filed I.A. No. 898 of 2022 under Order 16 Rule 1 read with Section 151 and 141 CPC praying to summon the respondent for cross examination. According to petitioner, the -3- respondent was set ex-parte and there after F.C.O.P was disposed of finally on 16.9.2019 and the application was filed two years after the decree of divorce was passed. According to petitioner respondent pleaded in the affidavit with regard to change of address without intimation to petitioner. Therefore, petitioner intends to cross examine the respondent in the present proceedings and sought leave of the Court to summon the respondent. Said application is opposed by respondent.
4. On assessing the rival submissions, learned Family Court by order under revision, dismissed said application.
5. Learned senior counsel appearing for petitioner contended that after more than two years, present application is filed to reopen the F.C.O.P only to harass and humiliate the petitioner. After the marriage was dissolved, petitioner married another lady and a child is born to them on 28.2.2022 and if the application is allowed and F.C.O.P is restored, same would cause great hardship and suffering to the petitioner as well as his wife and child. He would submit that as per the address available with the petitioner, he has mentioned the same in the F.C.O.P. In various applications and affidavits filed by the respondent, different addresses are furnished but at the relevant point of time respondent was residing in the address furnished by the petitioner in F.C.O.P. Having regard to the facts stated in the affidavit -4- filed in support of the application in IA No. 553 of 2021, petitioner intends to cross examine the respondent.
6. Order XIX Rules 1 and 2 of CPC vests discretion in the Court and Court can order any particular matter of fact to be proved by affidavit and affidavit of the witness may be read at the hearing on such contention. According to Rule 2, Court can order attendance of a person for cross examination of the deponent. By referring to these provisions and the word 'prove' as defined in Section 3 of the Indian Evidence Act, 1872 learned senior counsel would contend that having regard to the averments made in paragraph 7 of the affidavit filed in I A No. 553 of 2021, the prayer of the petitioner to cross examine the witness is erroneously rejected. He would submit that by virtue of Rule 2 of Order XIX petitioner has got right to cross examine the respondent.
7. In support of his contention, he relied on decision of this Court in Nadella Estate Pvt Ltd Vs Prema Ravindranath and ors1.
8. Per contra, according to learned counsel for respondent Sri D Madhava Rao, this application is filed to lead evidence. Based on the depositions in the affidavit filed in support of the application praying the court to grant appropriate relief, respondent cannot be subjected to cross examination as is sought to be contended by learned senior counsel. He would submit that order XIX Rules 1 and 2 do not come to the aid of the petitioner as said provisions are not applicable to 1 MANU/AP/2580/2014 -5- cross examine a person on the averments made in the affidavit filed in support of application to grant a relief. It is not an evidence, therefore question of cross examination does not arise. In support of his contention, leaned counsel relied on judgment of Madras High Court in K Karuppannan Vs N Chinnappan2.
9. In this revision, I am not concerned with the validity of the reasons given by the respondent in filing I A No. 553 of 2021 to set aside the ex-parte order dated 16.9.2019 dissolving the marriage and to give fair opportunity of hearing. In support of the application, respondent filed affidavit and in the said affidavit respondent has explained her version as to why she could not enter appearance and prayed to set aside the ex-parte decree. The respondent has to prove with cogent material that she has not received the summons in F.C.O.P, and therefore there was no occasion for her to contest the F.C.O.P. At that stage, it is open to the petitioner to controvert said assertions of respondent and it is for the Court to consider whether a case is made out for setting aside the exparte decree dissolving the marriage.
10. In Nadella Estate Pvt Ltd, learned single Judge of this Court summarized the law on the subject with reference to provision in Order XIX Rules 1 and 2 of CPC. According to learned Judge, if facts warrant, Court may call deponent of an affidavit to permit cross examination but it is not a matter of course and Court has to weigh the options having 2 MANU/TN/1855/2012 -6- regard to the facts and circumstances of a given case. Only if Court finds cross examination is necessary for satisfying itself about the truth of the averments, Court may permit cross examination.
11. As held by the Madras High Court in K Karuppannan following the decision of the Hon'ble Supreme Court in Sudha Devi Vs. M.P.Narayanan3 affidavits are not included in the definition of evidence, therefore, for the Court to exercise discretion vested under Order XIX Rule 2, the party has to make out a strong case and absolute discretion is vested in the Court either to allow or to reject such request.
12. An affidavit filed in support of an application praying to grant appropriate relief is not an evidence. Even assuming that opposite party wants to cross examine the deponent to an affidavit, he can file an application but it is the absolute discretion of the trial Court to permit such cross examination or to reject. In the case on hand, Family Court having considered respective submissions and having regard to the facts of the case found it not desirable to call the respondent for cross examination. The Family Court observed that burden is on the respondent to prove her contentions as averred in her application to set aside the decree. The Family Court noticed that only reason assigned by the petitioner to cross examine the respondent is that the petitioner has furnished different addresses and seeks to cross examine the respondent on that ground. The Family Court found that it is not 3 1988 (3) SCC 366 -7- necessary to cross examine the respondent on that ground as the burden is on the respondent to prove her assertions in the affidavit filed in support of the application.
13. Having regard to the scope of Order XIX Rule 2, the trial Court declined to exercise its discretion. In exercise of power of superintendence under Article 227 of the constitution of India, this Court cannot sit in appeal and hold exercise of such discretion as illegal. Having regard to the facts of this case, I do not see any error committed by the Family Court in refusing to grant relief prayed by the petitioner warranting interference by this Court. Accordingly, the revision is dismissed. Pending miscellaneous petitions, if any, shall stand closed.
__________________ P.NAVEEN RAO,J Date:28-04-2023 tvk -8- HON'BLE SRI JUSTICE P.NAVEEN RAO CIVIL REVISION PETITION NO.165 OF 2023 Date: 28.04 .2023 tvk