THE HONOURABLE SRI JUSTICE K.SARATH
Civil Revision Petition Nos.893 and 894 of 2023
COMMON ORDER:
Heard Sri V. Ramu, learned counsel for the
petitioner and Sri Amim Ali Allauddin, learned
counsel for the respondent.
2. Since both these revisions arise out of the common order dated 20.02.2023 in I.A.Nos.68 and 69 of 2023 in O.P.No.670 of 2018 on the file of the Judge, I Additional Family Court at Hyderabad, they are being disposed of by this common order.
3. The case of the petitioner-wife is that she filed O.P. for restitution of conjugal rights against the respondent-husband. She filed her evidence affidavit and the Court below has appointed an Advocate Commissioner for recording of cross-examination. The Advocate Commissioner has issued notice to both parties fixing the date of cross-examination on 30.12.2019, but despite service of notice, the 2 SK, J C.R.P.Nos.893 and 894 of 2023 respondent failed to appear. Basing on the memo filed by the Advocate Commissioner, the Court below has closed the evidence and posted the matter for further evidence. Thereafter, the petitioner has produced the evidence of P.W.2, but the respondent failed to cross-examine P.W.2 and the Court below has closed evidence and posted the matter for arguments. At that stage, the respondent filed the impugned applications seeking to reopen the evidence of P.W.1 and P.W.2 and to recall P.W.1 for the purpose of cross-examination stating that he has changed his counsel after obtaining no objection from his previous counsel and on verification of records, he came to know that the cross- examination of P.Ws.1 and 2 was recorded as 'nil'.
4. The Court below having held that it is just and necessary to recall P.Ws.1 and 2 for the purpose of cross-examination for proper adjudication of O.P. allowed both the petitions. Aggrieved by the same, the petitioner-wife filed the present revisions. 3
SK, J C.R.P.Nos.893 and 894 of 2023
5. Learned counsel for the petitioner submits that when the OP. is at the stage of arguments, the respondent filed the present applications in order to delay the proceedings and to fill up the lacunas and latches on his part. He further submits that earlier, the similar applications filed by the respondent were allowed and without considering the same, the Court below allowed the present applications for the second time. Hence, he prays to allow the revisions.
6. Learned counsel for the respondent submits that the petitioner and the respondent have agreed to dissolve their marriage by mutual consent and entered into an agreement dated 10.03.2014, as per which, the respondent paid a sum of Rs.7,00,000/- by way of a cheque dated 09.03.2014 to the petitioner towards permanent alimony and accordingly they have filed a divorce petition before the Principal Judge, Family Court, Patna. He submits that having received the amount towards permanent alimony as per the agreement and filed 4 SK, J C.R.P.Nos.893 and 894 of 2023 divorce petition by mutual consent, the petitioner filed a petition for withdrawal of consent for divorce falsely alleging that the consent for dissolution of marriage has been obtained by misrepresentation and concealment of facts and she was pressurized by the respondent and his parents and also alleged that out of a sum of Rs.10,00,000/-, only cash of Rs.7,00,000/- was paid and there is still due a sum of Rs.3,00,000/-. Learned counsel submits that the divorce petition was dismissed on the ground of territorial jurisdiction and thereafter, the respondent filed Matrimonial Case No.661 of 2017 on the file of the Principal Judge, Family Court Patna and the same is pending.
7. Learned counsel for the respondent further submits that the previous counsel of respondent has neither cross-examined P.W.1 and P.W.2 nor the evidence on behalf of respondent was adduced and hence, he engaged another advocate and filed the present petitions to reopen the evidence of P.W.1 5 SK, J C.R.P.Nos.893 and 894 of 2023 and P.W.2 and to recall P.W.1. He further submits that as the O.P. is filed for restitution of conjugal rights, the cross-examination of P.W.1 and P.W.2 is very much essential for proper adjudication of the matter. He further submits that the party cannot be made suffer due to the fault of the counsel and the Court below has rightly allowed the I.As filed by the respondent and requested to dismiss the revision petitions. He relied on the following judgments:
1. A. Yameen Qureshi vs. S. Rajeshwari 1
2. S.P.Chengalvaraya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRS and others 2
3. Kshitij Infraventures Pvt. Ltd. Rep. by its Director Sri Rajkumar Malpani v. Khorshed Shapoor Chenai and others 3
4. Randhir Singh vs. State of Haryana and others 4 1 2019 SCC OnLine TS 3514 2 (1994) 1 SCC 1s 3 2022 SCC OnLine TS 38 4 2019 SCC OnLine P & H 7661 6 SK, J C.R.P.Nos.893 and 894 of 2023
5. Rajesh Chandran vs. M.R.Gopalakrishnan Nair 5
6. Chetna Rathee vs. Chahit Kundu 6
8. After hearing both sides, this Court is of the considered view that the petitioner and the respondent are wife and husband and due to disputes in their matrimonial life, they have filed different cases before the different Courts. Presently, the petitioner herein filed O.P.No.670 of 2018 for restitution of conjugal rights before the Family Court, City Civil Court, Hyderabad and the respondent filed Matrimonial (Divorce) Case No.661 of 2017 on the file of the Principal Judge, Family Court, Patna. The respondent filed I.A.Nos.68 and 69 of 2023 in O.P.No.670 of 2018 on the file of the Judge, I Additional Family Court at Hyderabad to reopen the evidence of P.Ws.1 and 2 and to recall P.W.1 for the purpose of cross-examination and the 5 Unreported judgment of Kerala High Court in OP(C).No.281 of 2022 dated 22-07-2022. 6 2023 SCC OnLine Del 2950 7 SK, J C.R.P.Nos.893 and 894 of 2023 same was allowed by the Court below by appointing an Advocate Commissioner to record cross- examination of P.W.1 and P.W.2 and directed to pay costs of Rs.2,000/-each to P.W.1 and P.W.2. The Court below observed that it is just and necessary to recall P.W.1 and P.W.2 for the purpose of cross- examination for proper adjudication.
9. Learned counsel for the petitioner vehemently argued that on earlier occasion, similar applications i.e. I.A.Nos.512 and 513 of 2022 in O.S.No.670 of 2018 were allowed by the Court below on 21.09.2022 and without considering the same, the Court below again passed the impugned order and the same is liable to be set aside. Admittedly, no cross-examination was done by the respondent on earlier occasion due to non-appearance of his counsel and thereafter, the respondent has changed his counsel and filed the present petitions. 8
SK, J C.R.P.Nos.893 and 894 of 2023
10. The contention of the learned counsel for the petitioner is that presently P.W.1 and P.W.2 are not residing in Hyderabad and as the trial Court has granted costs of Rs.2,000/- each only, the petitioner cannot bare the expenses of lodging and boarding charges if the cross-examination is continued. In the instant case, admittedly there is no cross- examination of P.W.1 and P.W.2 and the judgments relied on by the counsel for the respondent are apply to the instant case with regard to party cannot suffer due to the fault of the counsel and as such this Court is not inclined to interfere with the orders passed by the Court below.
12. In view of the above findings, both the Civil Revision Petitions are disposed of modifying the order passed by the Court below in I.A.Nos.68 and 69 of 2023 in O.P.No.670 of 2018 on the file of the Judge, I Additional Family Court at Hyderabad dated 20.02.2023 directing the respondent to pay the costs of Rs.2,000/- each and also pay travelling, 9 SK, J C.R.P.Nos.893 and 894 of 2023 lodging and boarding expenses of P.W.1 and P.W.2 up to the completion of their cross-examination. The Court below is directed not to insist the petitioner to appear before the Court on each and every date of adjournment unless her presence is required. No order as to costs.
13. Miscellaneous Petitioners, if any pending in these revisions shall stand closed.
_____________ K. SARATH, J Date: 19.09.2023 sj