Nidhi Dhawan vs Sunil Dhawan
1996 Latest Caselaw 572 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) [ED. facts : Plaintiff has sued Defts. for recovery of 'Stridhan' (about Rs 7 lac) and injunction alleging that parties were married at Delhi on 6.1.93 and left for Australia on 28.3.96 where Deft. no. 1 (husband) had his work ; there she was made to work as a labourer and was given cruel treatment, that Deft. 1 was and is severely diabetic which fact was concealed by Deft. no. 1 and his parents. That unable to bear cruelty, she managed to fly back to India in Dec., 93, on the pretext of her father's sickness, with just a couple of dresses. To save mental torture of her parents and on the assurance of husband's parents of better treatment, she returned to Australia on 13.2.94. Soon she overheard telephonic talk between Defts. 1 & 3 that plaintiff should be killed by poison. After this, plaintiff could no longer remain there and left house on pretext of job interview and with the help of a friend of her father returned in the last week of Feb., 94. She has also sued for divorce u/s 13 of Hindu Marriage Act. Plaintiff has made an application u/0- 38, R. 1 & R. 5 r.w. S. 94 and S. 151, Civil Procedure Code for arrest and attachment before Judgment on the ground that Deft. no. 1 has come to India to dispose off his properties and has also changed his name from Sunil to Roger. Deft. denied allegations of plaintiff stating that he had no property in India, however, admitting that he had changed name and had an Australian passport [After detailing facts, judgment is]: 7.1 I would first discuss and deal with the prayer made by the plaintiff under Order 38 Rule 5 CPC. As regards the above prayer the position is that an order for attachment before adjudication of a claim is not a common feature in litigation. It is only in exceptional and extraordinary circumstances that such a drastic action in terms of the above said provision can be taken to safeguard the interest of the plaintiff. For the purpose, the Court is required to examine and satisfy itself (i) What property is about to be disposed of or removed (ii) Whether the same is the property of the defendant ? (iii) Whether it is the whole or part of the property ? and (iv) What is the intention of the defendant ?

(2) The plaintiff in the application has neither given the value nor the details of any property belonging to deft. No. 1 which the said deft. is about to dispose of or about to remove from the local limits of the jurisdiction of this Court. On the contrary in the reply filed on behalf of deft. No. 1 it has been specifically stated that the deft. No. 1 has no property. On 2nd July, 1996, during the hearing of the application, the learned counsel for deft. No. 1, under instructions from deft. No. 1 who was also present in the Court, made statement in clear cut terms that defendant No. 1 owns no property in the whole of the Country. In the presence of the above facts no relief can be given to the plaintiff by this Court under Rule 5, Order 38 CPC. [In para 8.1, 0. 38 R. 1. Civil Procedure Code is reproduced,

(3) As per settled law, culled out from various decisions, before exercising the powers, exceptional in nature, conferred by this Rule, the Court should be satisfied that the plaintiff's suit is bonafide and that the cause of action is prima facie an unimpeachable one subject to plaintiff's proving the allegations made in the plaint. The High Court of Madras in Seth Chand Mull Dudha vs. Purshotham dass (AIR 1926 Madras 584) inter alia have held the before the Court can act under the above Rule /( must have reasons to believe on adequate material that unless the jurisdiction is exercised there is a real danger that the defendant will remove himself or his property from the ambit of the powers of the Court. If the above criterion is applied to the present case it is apparent that till date despite the fact thai the defts. have been given sufficient opportunities, none of the defts. including deft. No. 1 have filed w/s controverting the averments made in the plaint. In the reply filed to the application, as already stated, deft. No. 1 has admitted that he is an Australian citizen, having an Australian Passport. He even has admitted that he has changed his name from Sunil Dhawan to Quinten Dexter. It has also been admitted by him that he does not have any property in this Country and is employed in Australia. In the application it has been specifically averred that deft. No. 1 has informed the plaintiff that he would leave the country and would not enter appearance before this Court. In reply though the above averment has been denied but nowhere it has been stated by deft. No. 1 that he docs not propose to leave this Country till the decision of the present case. Thus from the above facts this Court is satisfied that the averments made in the plaint, since not controverted so far by filing w/s, are bonafide and that the cause of action is also prima facie an unimpeachable one however subject to plaintiff's proving the allegations made in the plaint. This Court on the basis of above facts and other material on record is further satisfied that deft. No. 1, who is a foreign national, having no roots in the Country is about to leave this country under circumstances affording reasonable probability, that the plaintiff may thereby be obstructed or delayed in realising the decree that may ultimately be passed in her favour and against the defendants including deft. No. 1.

(4) The learned counsel for deft. No. 1, during arguments, placed reliance on Palghar Rolling Mills vs. Visvesarava Iron & Steel and Uco Bank vs Sukra Shoe Fabric (. In my opinion both the above mentioned cases, relied upon by the learned counsel for deft. No. I in no way help the case of the said deft. because both the cases deal with Rule 5 Order 38 Civil Procedure Code and not with Rule 1 of Order 38 CPC. Moreover, both the cases are also distinguishable on facts from the present case.

(5) In view of the above discussion the application of the plaintiff is partly allowed and under Rule 1 Order 38 Civil Procedure Code it is ordered that a warrant to arrest deft. No. 1 (in form No. 1 Appendix F, CPC) and bring him before this Court on or before 22.7.96 to show cause why he should not furnish security for Rs. 6,99,350.00 for his appearance be issued. The deft. No. 1 shall not be arrested if he pays to the officer entrusted with the execution of the above said warrant the, said sum ninety nine thousand and three hundred and fifty only, sufficient to satisfy the plaintiff's claim, which sum, if paid, shall be held in deposit by the Court until the suit is disposed of or until further orders of this Court.

(6) Nothing stated hereinabove shall amount to expression of any opinion on the merits of the main suit.