Allahabad High Court
Smt.Sudhesh Bajpai vs Ahsok Kumar Bajpai on 7 August, 2012
Bench: Saeed-Uz-Zaman Siddiqi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- SECOND APPEAL No. - 55 of 2009
Petitioner :- Smt.Sudhesh Bajpai
Respondent :- Ahsok Kumar Bajpai
Petitioner Counsel :- R K Sharma
Respondent Counsel :- Mrs.Madhulika Yadav
Hon'ble Saeed-Uz-Zaman Siddiqi,J.
Heard learned counsel appearing on behalf of the parties and have gone through the materials on record as well as perused the judgment impugned in the present appeal.
This second appeal under Section 100 of the Code of Civil Procedure has been filed by appellant, Smt. Sudesh Bajpai (wife), against the respondent, Ashok Kumar Bajpai (husband) challenging the judgment and decree dated 14.11.2008, passed by Additional District Judge, Court No.8, Sitapur, whereby the appellate Court has allowed the Civil Appeal No.47 of 2006 and set aside the judgment and decree dated 20.09.2006 passed by the trial Court.
During the pendency of this appeal before this Court, the sole respondent, Ashok Kumar Bajpai, the husband died on 22.10.2010. The appellant, wife, thereafter moved a substitution application (C.M. Application No.28378 (S) of 2011) supported with an affidavit with the prayer to implead the real sister of her deceased husband, namely, Smt. Asha Misra, wife of Sri Shyam Shanker Misra, as legal representative alleging therein that the cause of action survives through her.
The matter was heard at length in which learned counsel for the appellant could not show as to how the cause of action survives in a matrimonial (divorce) suit when one of the parties has died. It was argued by learned counsel for the appellant that the status of the appellant is to be determined and, as such, the cause of action survives. This argument is not tenable either on facts or on law, as the litigation between the parties was relating to matrimony under the Hindu Marriage Act, 1955.
The dispute between the parties has nothing to do with the status of the property of the deceased respondent, Ashok Kumar Bajpai.
The Hindu Marriage Act is a special statute dealing with the matrimonial disputes. In a dispute relating to status, rights and the property movable or immovable are subject matter of the Civil Court under Section 9 of the Code of Civil Procedure, which are the Courts of paramount jurisdiction to try all the suits of civil nature. The suit like this under Section 13 of the Hindu Marriage Act cannot overpower the general law as contained under Section 9 of the Code of Civil Procedure. The settled law is that the Courts strongly lean against any construction which tends to reduce a statute to futility. The provision of a statute must be so construed as to make it effective and operative on the principle "ut res magis valent quam pereat".
In view of the facts, as mentioned above, and the arguments advanced by learned counsel for the parties, the right to sue does not survive. The substitution application, being C.M. Application No.28378 (S) of 2011 is accordingly rejected.
In the result, the appeal is also dismissed as abated.
Order Date :- 7.8.2012.
Rks.
