Smt. Deepa Bajpai vs Vivek Bajpai
2013 Latest Caselaw 2704 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 4
 
Case :- CIVIL REVISION No. - 230 of 2013
 
Revisionist :- Smt. Deepa Bajpai
 
Opposite Party :- Vivek Bajpai
 
Counsel for Revisionist :- Ramendra Asthana,K.N. Shukla
 
Connected with 
 

 
Case :- CIVIL REVISION DEFECTIVE No. - 54 of 2013
 
Revisionist :- Smt. Deepa Bajpai
 
Opposite Party :- Vivek Bajpai
 
Counsel for Revisionist :- Ramendra Asthana
 
Counsel for Opposite Party :- Janardan Prasad Tripathi
 

 
Hon'ble Abhinava Upadhya,J.

These are two revisions  being Civil Revision Defective No. 54 of 2013 which is connected with Civil Revision No. 230 of  2013. Revision No. 54 of 2013  is against the order of the trial court  dated 5.1.2013 deciding issue no. 4  in Matrimonial Suit No. 52 of 2011 filed under Section 13 of the Hindu Marriage Act  (in short the Act) by the husband  and Revision No. 230 of 2013  is against the order dated 25.2.2013 by which issue no. 5 has been decided in the aforesaid Suit No. 52 of 2011.

Civil Revision Defective No. 54 of 2013 was earlier filed as Writ Petition No. 12016 of 2013. With the permission of the Court the said writ  petition was converted into the present revision being Civil Revision Defective No. 54 of 2013. 

Both these revisions are being decided by this common judgment.

The Revision No. 54 of 2013 has been filed against the decision on issue no.4 which was: Would the Divorce Petition No. 52 of 2011 barred upon the principles of res judicata  as contemplated under Section 11 of the Code of Civil Procedure? This issue was framed because the plaintiff-respondent had earlier filed a Matrimonial Suit No. 323 of 2010 under Section 13 of the  Act. Which has been dismissed under Order IX Rule 8 CPC, as such the second suit is barred by principles of res judicata. The trial court held that since the aforesaid Suit No. 323 of 2010 was dismissed under Order IX Rule 8 CPC  without even framing of  issues or rendering any pronouncement on the merits, therefore, principles of res judicata would  not applicable  and decided the said issue no.4 in favour of the plaintiff.

Learned counsel for the revisionist Sri Ramendra Asthana does not want to press the prayer made in the revision being Revision No. 54 of 2013  and, therefore, the said revision is dismissed as not pressed.

So far as Revision  No. 230 of 2013 is concerned  it is against the decision on Issue No.5. Issue no.5 was framed to the effect  as to whether the present Suit No. 52  of 2011 would be barred  under Order IX Rule 9 CPC  as earlier Suit No. 323 of 2010 was dismissed in default on the part of the plaintiff whereas  the defendant was present? This issue has also been decided in favour of the plaintiff-husband  vide order dated 25.2.2013.

On behalf of the revisionist  it is submitted that the parties to the revision,  were married on 7.2.2001 according to Hindu rites. It is alleged that the allegation against the revisionist,  by the husband  was,  that she refused to maintain matrimonial obligations since 28.4.2004 and since April, 2006 there is no marital relationship between them.  However, on 7.8.2006 a son of was born out of the said wedlock and since 13.3.2007,  the parties have started to live separately. It is submitted  that earlier a suit was filed being Suit No. 937 of 2009 (Vivek Bajpai Vs. Deepa Bajpai) under Section 13-B of the Act. However, the said suit was dismissed. Thereafter, another suit was filed  by the respondent-plaintiff  being Suit No. 323 of 2010 under Section 13 of the Act  and the same was dismissed in default on 7.12.2010  under Order IX Rule 8 CPC.

It is submitted  that the only course open for the respondent-plaintiff  was to move an application  for recall of the order  passed under Order IX Rule 8 CPC and in view of express bar  under Order IX Rule 9 CPC,  fresh suit was not maintainable,  and the trial court erred in law,  in deciding issue no.5 against the defendant and in favour of plaintiff.

It is submitted  that in the meantime the revisionist wife also filed a Suit No. 91 of 2011  under Section 9 of the Hindu Marriage Act for restitution of conjugal rights which is pending.

It is alleged  that the husband-plaintiff filed the Suit No. 323 of 2010 on the same allegation as in the present suit,  under Section 13 of the Act  and the court below vide order dated 7.12.2010 dismissed the earlier suit stating therein  that none is present for plaintiff, but learned counsel for the defendant-wife is present.

The submission of the learned counsel for the revisionist  is that the second suit, i.e., Suit No. 52 of 2011  is barred  under Order IX Rule 9 CPC.

Learned counsel for the revisionist has assailed the order of the trial court which has held that the plaintiff-husband has denied filing  of Suit No. 323 of 2010   and has also submitted  that he was never present in the court nor the defendant-wife was present, and therefore, the order of the trial court rejecting the said suit vide order  7.12.2010 under Order IX Rule 8 CPC is erroneous. It is submitted that the trial court ought not to have believed the version of the husband-plaintiff  that the earlier suit was not filed  by him as in the order impugned  itself it is mentioned  that on the order sheet  of the initial stage  of filing of the suit being Suit No. 323 of 2010 the signature of the plaintiff was there but on later dates no signatures have been made. According to the learned counsel for the revisionist, this fact was good enough proof  that the said suit was filed by the husband. Learned counsel for the revisionist  has further assailed the finding of the court below  that there was no vakalatnama  of the counsel for the defendant for him to be present on the date when the said suit  was dismissed. It is submitted  that merely on the ground that the vakalatnama was not filed by the learned counsel for the defendant, it cannot be presumed  that he was not present.

Sri Ramendra Asthana, learned counsel for the revisionist has relied upon a decision  of this Court  in the case of Birkha Vs. State  and others, reported in 1969(L.B., H.C.) R.D. page 41 wherein it has been held  that any appeal that may be presented by a counsel along with the vakalatnama which has not been signed by the appellant,  cannot be held that the appeal was not properly presented. Such defect is merely an irregularity  which can be cured and on this ground it is stated that the plaint of Suit No. 323 of 2010 was duly presented by the plaintiff-husband and the counsel for the defendant-wife was present and the suit having been dismissed under Order IX Rule 8 CPC, the second suit could not have been filed and is not maintainable in view of the provisions  of Order IX Rule 9 CPC.

Refuting the contention, the learned counsel for the opposite party Sri Janardan Prasad Tripathi submitted  that the aforesaid Suit No. 323 of 2010 was never filed  by the plaintiff but could have been filed by the wife in the name of the plaintiff only to defeat the remedy of the plaintiff to seek divorce under Section 13 of the Act. The ground for making such allegation is according to Sri Tripathi, learned counsel that in the plaint the address of the plaintiff as well as the defendant were wrongly given  and the summons were issued  but were returned unserved. It is further submitted  that on the order sheet  of the said suit  the signature of the defendant or her counsel have not been made. In fact the counsel could not have appeared as the defendant itself  did not have any notice of such a suit. It is by design the counsel  was present  on the date when the suit  was being dismissed but no vakalatnama  was filed on behalf of the defendant. Therefore, mere presence of the counsel  without there being any power  or authorization  to appear on behalf of the defendant  the court below erred in law in dismissing the suit treating the defendant to be present  and the plaintiff  to be absent.

I have heard learned counsel for both the parties  and have perused the record.

Without going into the allegation made by Sri Tripathi, learned counsel against the defendant-wife,  the fact that is to be considered is. Firstly; the plaintiff himself denied filing of any suit. It is not disputed  that on the plaint  of the earlier suit the address of both the parties were wrong  and therefore, notice could not have been served upon her.  It also cannot be disputed  that the defendant had not executed  any power or vakalatnama in favour of her counsel  to be present and in the absence of such,  it cannot be said  that the counsel, who was  present at the time of dismissal of the earlier suit  was the representative  of the defendant in  the suit which was  dismissed under Order IX Rule 8 CPC.

In the Writ Petition No. 12016 of 2013  which was converted into Civil Revision Defective No. 54 of 2013, this Court vide its order dated 2.5.2013 summoned the file of the court below to verify true facts and has observed in the order,  which is filed as Annexure-9 to the present revision,   that the main point to be decided is as to whether  in Suit No. 323 of 2010 the respondent had filed some vakalatnama or not.

Pursuant to the aforesaid order, file of Case no. 323 of 2010 was summoned and I have perused the original record  which clearly shows that no vakalatnma on behalf of the defendant was filed. Therefore, in my view, in the absence of representation  of the defendant through a counsel before the court, it cannot be said to have been dismissed in a manner to  attract the provisions  or Order IX Rule 8 CPC which may bar filing of further suit. That apart, the Family Courts Act is a Special Act  and strict adherence  to the technicalities  and procedure  is not as rigorous  as in other matters and, therefore, the order of the trial court in deciding issue no.5 in favour of the plaintiff call for no interference.

There is no merit in Civil Revision No. 230 of 2013 and it is accordingly, dismissed.

The record of the trial court summoned in Writ Petition No. 12016 of 2013 converted into Revision Defective No. 54 of 2013 be sent to the court forthwith.

Order Date :- 24.5.2013

SKM