Shri Jiten Bhalla vs Ms.Gaytri Bajaj
2008 Latest Caselaw 1572 Del

*      HIGH COURT OF DELHI : NEW DELHI

                 MAT App. No.72 of 2007

%            Judgment reserved on: 17th July, 2008

             Judgment delivered on:8th Septbember, 2008


Shri Jiten Bhalla
Son of Shri R.K.Bhalla
Resident of D-128, East of Kailash
New Delhi-110065                          ....Appellant

                 Through: Mr.Vijay Kishan with
                          Mr.Vikram Jetly, Adv.

                      Versus
Ms.Gaytri Bajaj
Daughter of Shri Anil Bajaj
Resident of N-30, Greater Kailash
Part-I, New Delhi-110048                  ... Respondent

                    Through: Mr.P.N.Lekhi, Sr.Adv. with
                             Mr.Vijay Chaudhary, Adv.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    Yes

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported
   in the Digest?                                     Yes




MAT No.72/2007                                  Page 1 of 55
 V.B.Gupta, J.

The present appeal has been filed by the appellant

under Section 28 of the Hindu Marriage Act, 1955 (for

short as Act) read with Order 41 of CPC, against the order

dated 25th September, 2007 passed by Sh.V.K.Khanna,

Additional District Judge, Delhi.

2. The brief facts of the case are that the parties to the

present appeal were married on 10th December, 1992 at

Delhi according to Hindu Customs and rites. Two

daughters, namely, Ms Kirti and Ms.Ridhi Bhalla were born

from the said marriage on 20th August, 1995 and 19th April,

2000 respectively.

3. It is stated that the respondent, accompanied the

appellant on 23rd May, 2003 to the District Court, Tis

Hazari, Delhi, for signing the documents/petition. The

First Motion under Section 13-B (2) of the Act along with

an application under Section 151 CPC for waiving the

statutory period of six months, was listed on 26th May,

2003. The Addl.District Judge allowed the waiving of

statutory period of six months on the same date and also

recorded joint statement of both the parties.

4. Vide judgment dated 3rd June, 2003, the Addl. District

Judge dissolved the marriage between the parties and

decree of divorce by mutual consent was granted.

5. In February, 2006 the respondent/wife herein filed a

suit for declaration and perpetual injunction in the Court of

Civil Judge seeking declaration to the effect that the

judgment and decree dated 3rd June, 2003 passed by the

Court of Sh.S.C.Mittal, ADJ, Delhi in HMA No.522/2003 in

the matter of Sh.Jiten Bhalla vs. Ms.Gaytri Bajaj be set

aside and declared as null and void.

6. While that suit was still pending, on 22nd December,

2006, the respondent/wife also filed an application under

Section 151 CPC to recall/set aside the judgment and

decree dated 3rd June, 2003 obtained by appellant alleging

that a fraud has been played on the court and also filing

false petition supported by false affidavits, in the court of

Sh.V.K.Khanna, Addl.District Judge.

7. The Additional District Judge vide impugned order set

aside the said decree.

8. Hence the present appeal.

9. It is contended by learned counsel for the appellant

that the impugned order has been passed under O.12 R.6

CPC by misapplying the settled principles governing the

said provision. Admission under Order 12 R.6 CPC on

which Court wishes to pass a decree has to be

unambiguous, clear and unconditional and written

statement has to be read and construed as a composite

document and the Court cannot pick up a single line and

treat it as admission out of context.

10. In support of his contention, learned counsel for the

appellant cited Express Towers P.TD & Anr. V. Mohan

Singh & Ors. 2007 (97) DRJ 687 (DB) , in which it has

been held that;

"Under order 12, Rule 6 of CPC, a decree can be passed or a suit can be dismissed when admissions are clear and unambiguous and no other interpretation is possible. The Court also is vested with a right to ask for independent corroboration of facts, even when denial in the pleadings is not specific. Right to pass a judgment or order under Order 12, Rule 6 of the Code is discretionary and not mandatory. It may not be safe and correct to pass a judgment under Order12, Rule 6 of the Code when a case involves disputed questions of

fact and law which require adjudication and decision."

11. The petition/application under Section 151 CPC filed

by the wife was not maintainable because allegations in the

application are that the fraud has been played on wife and

not on Court by husband. It is the settled law that where

fraud is alleged with the party and not with the court, the

application under Section 151 CPC would not be

maintainable but only a suit would lie. Even in the

application filed u/s 151 CPC, the case relied on of

Supreme Court on page 2 of the application takes the

aforesaid view.

12. The Trial Court, even to make a case of fraud, has

taken facts into consideration, which were even fully

known to the wife, therefore, suppression of those facts, if

any, on the part of the husband does not amount to

suppression and does not constitute fraud on the part of

the husband, as it is well settled principle of law that facts

known to parties and omission by one to do what he might

have done, would not render it „suppression‟ and would not

constitute „fraud‟.

13. The factum whether the parties were living separately

or not or about the affidavit dated 15th June, 2002 etc. were

fully within the knowledge of the wife and the wife,

therefore cannot allege fraud on the basis of the alleged

facts.

14. It is further contended that when both the parties

practice fraud on a court and obtain a collusive decree, it is

not open to either of them to impeach the judgment of the

Court on the ground that it was collusively procured. The

said principle of law has been completely ignored by the

Trial Court.

15. Reliance by the Trial court in the impugned order on

affidavit dated 15.6.2002 is totally misplaced and

misdirected and not permissible because the said affidavit

has not even been pleaded in application under section 151

CPC nor is on the record of the Trial court.

16. Moreover, the said affidavit is totally meaningless as

it has been filed on a format given by passport office and

that too 11½ months before the filing of the petition for

divorce on 23.5.2003. The said affidavit merely states that

parties hereto got married in 1992 under the Act, and are

living as married couple since 1992. The said averments in

the said affidavit merely states the status of the appellant

and the respondent to the effect that they were duly

married and are still married. It does not indicate that they

are not living separately as envisaged in Section 13B(1) of

the Act.

17. It is further contended that what amounts to living

separately is that the parties should have no desire to

perform marital relationship and husband and wife would

be said to be living separately for want of consummation of

marital relationship.

18. On this point, learned counsel for the appellant has

cited the decision of Smt.Sureshta Devi v. Om Prakash

AIR 1992 SC 1904 in which it was held that;

"Expression "living separately", connotes not living like husband and wife. It has no reference to the place of living. The parties may be living under the same roof by force by circumstances, and yet they may not be living as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations."

19. In Kirtibhai Girdharbhai Patel v. Prafulaben

Kirtibhai Patel AIR 1993 Gujarat 111, the meaning of

expression "have been living separately" has been

explained and according to it, it is not necessary that

spouses should live in separate premises. Merely going

abroad jointly and staying under one roof is not living as

husband and wife and it cannot be ground to refuse divorce

when marriage has not been consummated for more than

one year.

20. In any case, the respondent/wife was fully aware of

the said affidavit, so she would be equally guilty of the

suppression of said fact and therefore, same cannot be

termed as suppression from the Court and constituting a

fraud.

21. Further, when a matter is settled by consent of the

parties or by compromise, in that case, the parties can

compromise not only in relation to the subject matter of the

petition/ suit, but other matters also in the said petition/

suit and same is permissible under amended order 23 rule

3 CPC. Therefore, settlement between husband and wife in

the present case about the custody of the children or

maintenance is perfectly lawful.

22. Admittedly the wife, in this case, is an educated lady,

so it cannot be said that she did not voluntary agree in the

matter of custody of children or maintenance particularly

when according to the husband she was living in adultery.

23. Had the wife, in this case, not voluntarily and of her

own will and consent agreed to the said divorce or for

giving up the custody of the children or maintenance and

since according to her, she came to know of the said

divorce on 8.6.2003 and got all the papers of the said

divorce case including the petition, orders etc and she

filed the same before the passport officer on 14.7.2003, she

would not have remained quite for two years and eight

months in challenging the said divorce and would not have

left for abroad firstly, to Switzerland and then to London

although she visited India during this time on short trips.

For at least three years, admittedly, wife did not meet her

children nor tried to know about the welfare and only filed

petition for custody only after three years that is, in July,

2006. The said fact and said conduct of the wife clearly

shows that divorce decree was passed with her full consent

and will and voluntarily.

24. It is also contended that each of the pages of the

petition filed U/s 13B(1) of the Act is signed with a firm

hand by the wife as well as pages 2 to 4 of Petition U/s

13B(2) and also petition for exemption for six months and

along with these applications/petitions, the respondent/wife

in support thereof has filed affidavits duly attested by Oath

Commissioner. The wife has also signed and put her

thumb impression on joint statement made by her in the

Trial Court made for the purpose of divorce. Even all these

petitions were signed by the counsel for the wife.

25. On this point, learned counsel cited a case decided by

Andhra Pradehs HIghCourt, in Re Gandhi Venkata Chitti

Abbai and Anr. AIR 1999 Andhra Pradesh 91 while

interpreting Section 13B of the Act, the Andhra Pradesh

High Court has held that;

"Thus, Section 13-B(2) though it is mandatory in form is directory in substance. Hence, the argument that the period of six months for the second motion cannot at all be waived is not sustainable in law."

26. In a decision of this Court reported as Parshotam

Lal v. Surjeet Kaur 2008 (103) DRJ 416, it has been

held that;

"Provisions of Section 13-B(2) is directory and not mandatory."

27. In another decision on the point cited by learned

counsel for the appellant, Arvind Sharma v. Dhara

Sharma 1997 VI AD (Delhi) 557 , the same proposition

of law has been laid down that;

"Section 13-B(2) of the act though it is mandatory in form is directory in substance."

28. Similarly, the Trial Court while passing the divorce

decree, has also observed in its order that, "this court has

also made efforts for effecting reconciliation between the

parties but with no success". The said recording in the

order dated 3rd June, 2003, while passing the decree of

divorce, has never been challenged by the wife and it is the

settled law if the judges say in their judgments that

something was said, done or admitted before them, that

has to be the last word on the subject, unless immediately

challenged by the aggrieved party.

29. Admittedly, the wife was represented by a counsel in

the divorce proceedings and no complaint of any kind has

been filed against the said Advocate till today by the wife

that she never engaged him or gave him instructions for

getting divorce. The aforesaid admitted facts have not been

considered by the trial court, and it leaves no manner of

doubt that her plea that fraud had been played by the

husband on her is totally false, fabricated and afterthought.

30. In support of his contention, learned counsel for the

appellant cited, Hamza Haji v. State of Kerala & Anr. JT

2006 (8) SC 215, in which it was held that;

"In order to sustain an action to impeach a judgment, actual fraud must be shown, mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury."

31. In Mrs.Savitri Ahuja vs. Hari Mehta AIR 1964

Punjab 487 (V 51 C 160) it was held that;

"It is a fundamental principle that an order or decree of a Court can be displaced on ground of fraud only when it is extrinsic or collateral to anything which has been adjudicated upon. A party in a legal proceedings is bound to examine the pleas

raised against him and when he comes to accept these by a solemn statement made in Court, he cannot be heard later to say that it was induced by some misrepresentation."

32. In M/s Continental Foundation (Joint Venture)

Sholding, Nathpa H.P. v. CCE Chandigarh JT 2007

(11) SC 286, it has been laid down that;

"When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression."

33. In the suit filed by the wife for cancellation of

divorce/decree it has been alleged, "thereafter the

defendant (husband) took the plaintiff (wife) to some office

and the wife did not know that was a court or that was an

office where few advocates were waiting for the husband."

34. It is not understandable that any educated lady, who

can travel abroad all alone and spent two year in different

countries and that too, all alone, could not make out,

whether she is appearing in an office or a Court.

35. In cross objections filed by the wife in the appeal it is

pleaded, "the appellant (husband) fraudulently told the

respondent (wife) that she was to accompany the husband

to District Court to buy property in the name of the

children as permission of the Court was necessary."

36. The above vital contradiction clearly demonstrate that

she herself went to the Court and made a joint statement.

It is admitted by the wife that all the petitions and

affidavits are of her and are duly signed by her and she did

appear in the Court. It is not the case of the wife that

signatures on the petition under Section 13B(1) and (2) of

the Act and for exemption and on affidavits, are not of her

own, nor that she did not appear in court on 26.5.2003,

when joint statement was recorded.

37. Another most relevant point, which has been

overlooked by the Trial Court, is that in plaint filed by the

respondent-wife in Feb.2006, which consists of 27 paras

for setting aside of the said divorce decree, the allegations

made therein were about dowry harassment against the

father-in-law, sister-in-law, mother-in-law, husband etc. but

there is no whisper of these allegations made in application

under Section 151 CPC.

38. Another feature is that in the said plaint filed for

declaring the divorce null and void, there is absolutely no

allegation that she was drugged by the husband but for the

first time wife made the said allegation more than three

years after the alleged drugging that she was drugged by

the husband. Even if it were so, she would not have

remained silent till December, 2006 before filing of the

application u/s 151 CPC, although the alleged drugging,

accordingly to wife, took place in the last week of May

2003.

39. When civil suit has already been filed by the

respondent, for declaring the divorce as null and void, then

application under Section 151 CPC for recalling/setting

aside the judgment and decree dated 3rd June, 2003 passed

in the Mutual Consent Divorce case, does not lie.

40. Moreover, in Gurjant Singh v. Nachhattar Kaur

1981 HLR 246, it has been laid down that;

"Orders passed under the Hindu Marriage Act does not constitute a decree within the meaning of Section 2(2) of the CPC."

41. It is also contended that the Trial Court wrongly gave

importance to the fact that the husband and wife stayed in

hotel in the night of 25th May, 2003 even on 26th May,

2003, 4th June, 2003 and 7th June, 2003 went together to

attend function that took place in connection with the

relations of the wife.

42. The Trial Court completely ignored the fact that in

the reply filed by the husband to application u/s 151 CPC,

he has pleaded that wife was found by him to be living in

adultery and in order to hide the said fact from public as

wife even did not want her parents or parents-in-law to

know about it, so they slept in a Hotel on the night of

26.5.2003 early in the morning without anybody coming to

know of the same and similarly attended those functions on

26.5.2003, 4.6.2003, 7.6.2003, so that nobody should know

about divorce otherwise it would come to the notice of the

parents of the wife that she was living in adultery. If it

were not so, the wife, instead of challenging the said

divorce immediately on 8.6.2003 when she came to know

about the same according to her, she would not have

applied for passport and left for abroad.

43. It is further argued that the observation of the Trial

Court about the health of the predecessor are wholly

without jurisdiction and without any basis whatsoever. The

successor of a Presiding Judge of a Court has no

jurisdiction to comment upon about the competency or

physical condition of the Presiding Judge. Whether a

judge, subordinate to High Court, is competent to

discharge his judicial function or not for any reason

whatsoever, can only be decided by the High Court and by

none else much less by the successor of the Presiding

Judge and in fact there was nothing on the record to that

effect much less any pleadings in the application u/s 151

CPC. Moreover, the successor of the Presiding officer of

the Court has no business to compare the signatures of his

predecessors particularly when there was no pleading

whatsoever in respect thereof.

44. On this point learned counsel has cited Mukund Ltd.

v. Mukand Staff & Officers Association JT 2004 (3) SC

474 wherein it has been held that;

"It is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into."

45. There cannot be any question of collusion since both

the parties in joint petition filed u/s 13B(1) of the Act have

pleaded that there is no collusion in petition preferred by

the parties. In joint statement recorded on 26.5.2003 it

was expressly stated that there was no collusion between

the parties in filing their petition. The Court has further

observed in its judgement dated 3.6.2006, that - "the court

also made efforts for effecting reconciliation between the

parties but no success". The aforesaid pleadings and

observations in order dated 3.6.2003 clearly show that

there was no question of any collusion.

46. In Nagindas Ramdas v. Dalpatram Iccharam @

Brijram and Ors. AIR 1974 Supreme Court 471, it has

been laid down that;

"Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions."

47. The Trial Court has fully complied with Section 23 of

the Act by holding -"I am satisfied that the marriage

between the parties had broken down irretrievable and

irremediably. There is not even a scintilla of hope of the

petitioners joining together as husband and wife. Their

consent for divorce appears to be voluntary and not

induced by any force, fraud or undue influence from any

quarter."

48. It is also contended that, non-signing of the joint

statement is totally irrelevant as it is mentioned in the

order dated 26.5.2003 that "I have considered the joint

statement of the parties recorded on oath".

49. It is also contended that the present appeal can be

treated as revision also and cited case law Col.Anil Kak

(Retd.) v. Municipal Corporation, Indore and Ors. JT

2005 (8) SC 412 where it has been held that ;

"Where Revision is not maintainable, permission of High Court to convert and treat the petition as under Article 227, was held proper and justified."

50. To the similar effect in Bahori v. Vidya Ram AIR

1978 Aallahabad 299 and Jeewan Dass Rawal v.

Narain Dass & Ors. AIR 1981 Delhi 291, it was held

that;

"High Court has got the power to convert the appeal into revision provided conditions laid down in Section 115 CPC are satisfied."

51. Lastly, it is contended that mere non-singing of

judgment will not invalidate the judgment in view of

K.V.Rami Reddi v. Prema JT 2008(3) SC 115, where it

has been laid down that;

"Mere non-signing of judgment, held, will not invalidate the judgment."

52. On the other hand, it is contended by learned counsel

for the respondent that first and foremost question is as to

whether appeal under Section 28 of the Act is maintainable

or not.

53. The Act is a complete code in itself. The word

"decree" is used in "the Act" in a special sense having

different meaning and connotation than that in which it is

defined in the Code of Civil Procedure. The word "decree",

therefore, has to be interpreted in accordance with and in

relation to the special language used in the Act.

54. Section 28 of the Act, confers right of appeal against

"all decrees made by the court in any proceeding under

this Act, subject to the provisions of sub-section 3, be

appealable as decrees of the court....".

55. The words "all decrees" mean decree for restitution

of conjugal rights u/s 9, decree for judicial separation u/s

10, decree of nullity u/s 11 and decree of divorce u/s 13

and 13-B. However, if a petition for restitution of conjugal

rights fails, then no decree refusing conjugal rights can be

passed. Similarly, if petition for judicial separation or

petition for nullity or divorce fails, then there will be no

decree denying judicial separation can be passed nor

decree refusing nullity can be passed nor decree for

refusing to grant divorce can be passed.

56. Thus, the words, "all decrees" as used in section 28 of

the Act has limited meaning according to the language

used in the Act.

57. It is settled principle of law of interpretation that the

language used in the text has to be read to its context. In

all these four cases, if the petitioner succeeds, a decree for

restitution of conjugal rights, judicial separation, nullity or

divorce has to be passed. But if the petition fails, then no

decree is passed i.e., the decree is denied to the petitioner.

58. In other words, when a decree for divorce is refused

or denied to a petitioner, the marriage still subsists and as

such it cannot be presumed that there exists a "decree" in

the eyes of the law within the meaning of section 28 of the

Act. It is only when a decree is passed that the rights of

the matrimonial parties are altered u/s 41 of the Evidence

Act, since it is a judgment in rem as distinguished from

decrees in civil cases which operate as judgments in

personam.

59. The meaning of word "decree" under the Act, cannot

have one meaning when used in Sections 9, 10, 11, 13, 13-

B and 23, 26 and 27 and another or different meaning

under Section 28 of the same Act.

60. Secondly, even otherwise, an order passed u/s 151

CPC by the Addl. District Judge, setting aside a decree

obtained by fraud under section 13-B of the Act, is not a

"decree" within the meaning of section 28(1) of the Act nor

it is an "order" made by the Court under section 25 or

section 26 of the Act which are only appealable.

61. Section 28(1) of the Act contemplates that only

decree is appealable.

62. It is settled principle of law that appeal lies only

against a decree and not from the judgment. In this case,

the order passed by the Addl. District Judge does not

mention that a decree be prepared on the basis of his

order, and obviously could not have stated while exercising

powers of inherent jurisdiction conferred u/s 151 CPC.

63. On this point, learned counsel for the respondent

cited State of West Bengal v. Union of India 1 SCR

371, in which it has been laid down that;

"In considering the true meaning of words or expression used by the Legislature the Court must ascertain the intention of the Legislature by directing its attention not merely to the clauses to be construed but to the entire Statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs."

64. Further, it is contended that the first and foremost

statutory requirement of Section 13-B(1) of the Act is that

the parties to the First Motion have to truthfully state in

the petition and solemnly affirm in the affidavit that "they

have been living separately for a period of one year

immediately preceding the presentation of the petition."

65. The petitioner has fraudulently and falsely stated in

paragraph 5 of the First Motion that "ever since December,

2001, due to irreconcilable differences having arisen

between parties, they mutually have decided to live

separately and have not cohabited together as husband and

wife..."

66. However, on the other hand, the appellant has

admitted in Joint Affidavit dated 15.6.2002 signed by the

parties) with their joint photos affixed on it and dully

notartised by the Notary Public, and filed before Passport

Authority, a statutory authority created under the Passport

Act, that "We are living together as married couple since

1992".

67. This clearly expose the fraudulent scheme and

intention of the appellant husband that he knew at the time

of filing the First Motion that he had made false and

fraudulent representation in the First Motion in violation of

the condition precedent of "living separately" for a period

of one year immediately preceding the presentation of First

Motion.

68. The appeal of the appellant should be rejected on this

ground alone. This further proves that the appellant had

fraudulently obtained the signature of the wife on the

documents.

69. Further, the Additional District Judge, had no power

and jurisdiction to pass a decree in violation of statutory

provision of Section 13-B(2) of the Hindu Marriage Act,

1955 which is "mandatory".

70. From the analysis of the Section, it will be apparent

that the filing of the petition with mutual consent does not

authorize the court to make a decree of divorce. There is a

period of waiting from 6 to 18 months. This interregnum

was obviously intended to give time and opportunity to the

parties to reflect on their move and seek advice from their

relations and friends. In this transitional period, one of the

parties may have a second thought and change the mind

not to proceed with the petition. The spouse may not be a

party to joint motion under sub-sec. (2). There is nothing

in the Section which prevents such course. The Section

does not provide that if there is a change of mind, it should

not be one party alone, but by both.

71. In the present case, the petition under Section 13-

B(1) & (2) [First Motion & Second Motion] along with an

application for waiving of minimum statutory period six

months, was presented on 26.5.2003 and listed for hearing

in the Court of Sh.S.C.Mittal, the then Addl. District Judge,

Delhi, who allowed both the Motions on the same day along

with the application for waiving of statutory period of six

months. Finally, the Additional District Judge passed a

Decree dissolving the marriage between the parties by

mutual consent on 3.6.2003 i.e., just after 8 days of filing of

the petition for divorce by mutual consent.

72. It is further contended that parties to the First Motion

u/s 13-B(1) of the Act must be "living separately" for a

period of one year immediately preceding the presentation

of the First Motion but admittedly in the present case the

parties were living together as husband and wife as per

Joint Affidavit dated 15.6.2002 filed before Passport

Authority whereas the first Motion and Second Motion is

dated 23.5.2003 and listed before the trial Court on

26.5.2003 falsely and fraudulently claiming to be living

separately, expose the fraudulent intention of the appellant

perpetrated on the Court. Fraud, collusion and undue

influence are antithesis to the scheme of the Act and in

particular Section 23 of the Act.

73. It is also contended that in the present case, the

appellant has not only misled the then Additional District

Judge, Delhi, but the Court has also committed a gross and

manifest mistake and error of law by assuming that it has

power to waive minimum statutory period of six months u/s

13-B (2) of the Hindu Marriage Act, 1955, contrary to the

law laid down by the Supreme Court in Sureshta Devi v.

Om prakash (supra), where held that;

"A party to a petition for divorce by mutual consent under Section 13- of the Hindu Marriage Act, 1955 can unilaterally withdraw he consent and the consent once given is not irrevocable. Further the expression "living separately" occurring in Section 13-B connotes not living like husband and wife, it is immaterial

whether spouses live under same roof or in different house."

74. In Gurpinder Kaur Sahsi v. Ravinder Singh Sahsi

AIR 2005 Punjab and Haryana 187, cited by learned

counsel for the respondent, it has been laid down that;

"A decree for divorce under Section 13-B of the Act cannot be granted by the Court earlier than six months of presentation of petition. This statutory period of six months cannot be curtailed by Court on statement of parties. Waiting period of 6 to 18 months is intended to give time and opportunity to parties to reflect on their move and seek advice from their relations and friends and have second thoughts."

75. Another decision cited is Anita Sarwal v. Dr.Deepak

Sarwal 46 (1992) DLT 502, where it has been held that;

"The Court gets no jurisdiction to make a decree for divorce by mutual consent, prior to the expiry of the mandatory period, as specified in the Section and the consent must continue when the second Motion is made."

76. Further, it is contended that an application u/s 151

CPC for setting aside a decree obtained by fraud is

maintainable before the Court which passed the decree.

The Court has inherent powers not only to set aside a

judgment, order or decree obtained by fraud but also

where a Court is misled by a party or the Court itself

commits a mistake, it can recall its order.

77. It is also the contention of learned counsel for the

respondent that the principle of estoppel does not apply to

a decree obtained by fraud particularly when the statutory

requirement mandated by the legislature have not been

strictly complied with like dispensing with the period of

waiting of six months as required by law. Moreover,

condition precedent of filing the First Motion that the

parties are living separately for a period of one year

immediately preceding the presentation of the petition.

Appellant husband has admitted that the joint affidavit was

duly signed by him on 15th June, 2002 also with photograph

attached and notarized which was filed before the Passport

Authority wherein he has solemnly declared that "we are

married under Hindu Marriage Act/Rights/Customs and are

living together as married couple since 1992". This

admission of facts and law on the face of record does not

require any trial by evidence under law.

78. Further, the Limitation Act is not applicable in a case

where decree and judgment has been obtained by fraud as

it is settled principle of law that a decree or judgment

obtained by fraud is nullity and non-est.

79. The learned counsel has also cited following

judgments in support of his contention, namely,

Smt.Puspalata Rout v. Damodar Rout AIR 1987 Orissa

1, where a decree was obtained by exercise of fraud on

wife under Section 13B of the Act, it was held that;

"It is fraud practiced on court and a judgment is liable to be recalled by the court passing decree in exercise of its inherent powers."

80. In S.P.Chengalvaraya Naidu (dead) by LRs. V.

Jagannath (dead) by LRs. And Ors. AIR 1994 SC 853,

it was held that;

"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. If he withholds a vital documents in order to gain advantage on the other side then he

would be guilty of playing fraud on the court as well as on the opposite party."

81. The next case cited as Tribeni Mishra and Ors.

V.Rampujan Mishra and Ors. AIR 1970 Patna 13 ,

where while discussing the provisions of Section 44 of the

Evidence Act, it was held that;

"The right as given by Section 44 has not been fettered by any limitation whatsoever and it is manifest that such a right is quite independent of the right to get a judgment or decree etc. set aside by bringing regular suit for the purpose. A decree or order can be challenged on the ground of fraud in a collateral proceeding irrespective of the time when the judgment was delivered or decree or order was passed."

82. In Nazir Ahmad v. Emperor Privy Council 253

(1), it has been laid down that;

"Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all."

83. Lastly, it is contended that the circumstances and

evidence on record admitted by the appellant and not

controverted, goes on to prove that fraud was practiced on

the Court.

84. Petition under Section 13-B(1) of the Act for

dissolution of marriage between the parties by a decree of

divorce by mutual consent was filed in the court of

Addl.District Judge on 26th May, 2003. This petition has

been signed by the appellant as well as by respondent of

this case and both the parties have filed their separate

affidavits and appellant has placed on record photocopy of

Election Identity Card whereas, the respondent has placed

on record photocopies of extract of her passport. Further,

appellant has also placed on record the vakalatnama of his

counsel Sh.V.R.Dattar and Associates whereas, respondent

has filed her vakalatnama in respect of Ms.Monika

Malhotra, Advocate.

85. On 26th May, 2003 itself, the joint statement of the

parties, that is, appellant as well as the respondent, were

recorded by the Addl.District Judge. This joint statement

has been signed by both the parties and it also bears the

thumb impression of both the parties.

86. In the joint statement, it was stated by both the

parties that due to divergence in their temperaments and

idiosvncrasies, they have been living separately since

December, 2001. Efforts for their reconciliation made by

their relatives could not bring about bonhomie between

them. Now there is no possibility of their living together

without causing mental pain and anguish. So they have

decided to part away permanently in decent manner by

taking divorce by mutual consent.

87. In joint statement, it was further stated that they have

settled all their claims and disputes against each other

amicably regarding dowry articles, stridhan, maintenance,

past, present and future and also for permanent alimony

outside the court. Now, there is no claim/dispute left

between them to be solved/settled of any nature

whatsoever qua this marriage. Their consent for divorce is

voluntary and without any force, fraud and undue

influence. There is no collusion between them in filing this

petition.

88. After recording the statement of parties, the matter

was adjourned for 3rd June, 2003 for orders.

89. Vide order dated 3rd June, 2003, petition under

Section 13-B(1) of the Act was allowed by Sh.S.C.Mittal,

Addl.District Judge, Delhi.

90. The petition under Section 13-B(2) of the Act was

also filed on 26th May, 2003 by both the parties. This

petition has been signed by both the parties as well as their

respective counsel duly supported by respective affidavits

of both the parties. Along with this petition, an application

under Section 151CPC for waiving of six months period

was also filed and this application has also been signed by

both the parties and separate affidavit in respect of this

application has also been filed by both the parties.

91. Vide order dated 26th May, 2003 itself application

under Section 151 CPC for waiving of the statutory period

of six months was allowed by the court and joint statement

of the parties were recorded and the matter was adjourned

to 3rd June, 2003 for judgment.

92. Thereafter, vide judgment dated 3rd June, 2003,

petitions under Section 13-B(1) and 13-B(2) of the Act, filed

by both the parties, were allowed.

93. In February, 2006, the respondent/wife has filed the

suit for declaration and perpetual injunction in the court of

Civil Judge, Delhi against the appellant/husband seeking

declaration praying that judgment and decree dated 3rd

June, 2003 passed by the Court by Sh.S.C.Mittal, ADJ,

Delhi in HMA No.522/2003 in the matter of Jiten Bhalla

and Gayatri Bhalla be set aside and declared as null and

void.

94. This suit was filed inter alia on the following

grounds:-

(a). That father-in-law, mother-in-law, sister-in-law of the

plaintiff (respondent herein) had started harassing her

right after her honeymoon in January, 1993 and they were

tactfully laying demands for dowry on the pretext of social

customs and festivals. The plaintiff continued to bear

harassment from the defendant (appellant herein), his

sister and his parents for the sake of her two daughters.

(b). On 23rd May, 2003, the sister-in-law of the plaintiff

who was living in Gwalior invited the two daughters of the

parties to stay at Gwalior for few days. Plaintiff allowed

her daughters to go to Gwalior for two days along with her

mother-in-law on 24th May, 2003.

(c). On the next day, that is, on 25th May, 2003, the

defendant booked a room in Hotel Surya, New Friends

Colony, New Delhi and stayed with the plaintiff for a night.

During the said night, defendant cohabited with the

plaintiff and assured a vow from the plaintiff that on the

next date, that is, 26th May, 2003, she would have to go

with him at some place and without bothering the presence

of the persons there, she should have signed on some

papers as and when directed by the defendant.

(d). In the morning of 26th May, 2003, the defendant took

the plaintiff to some offices, (the plaintiff did not know that

the same was a court) and there was some Advocate who

was waiting for the defendant. They took the plaintiff to a

room and asked her to sign a paper which she did as

directed by the defendant without reading the same and

nobody uttered or asked anything from the plaintiff except

the defendant.

(e). In the evening of 26th May, 2003 both the plaintiff and

the defendant enjoyed on the occasion of Roka ceremony of

a cousin of plaintiff at Punjabi Bagh and after the

ceremony, both the parties slept and cohabited at the

matrimonial home at night. The plaintiff continued to live

in the matrimonial home as usual.

(f). On 4th June, 2003, the defendant along with the

plaintiff and many other relatives of the defendant

assembled for a party at Hotel Surya, New Friends Colony,

New Delhi during lunch time on the occasion of the

Mundan ceremony of a nephew of the plaintiff.

(g). In the evening of 7th June, 2003, the defendant along

with the plaintiff and their two daughters and about 60-70

relatives of the defendant assembled at Hotel Maurya for a

function. After the function was over, the plaintiff stayed

with her parents.

(h). On 8th June, 2003, the plaintiff telephoned the

defendant to come and pick her up from her parents home

but the defendant rebuked the plaintiff saying that he had

already divorced her and threatened the plaintiff that if her

parents would challenge the same, both the children

would be done to death by his sister Namita Kapoor, who

is in the matrimonial home at that time.

(i). The plaintiff realized that she was hoodwinked by the

defendant on 22nd May, 2003 when she was made to sign

some papers on the pretext of some scheme for the better

future of their children and thereafter on 26th May, 2003

when she was made to sign on a statement without

allowing her to read them.

(j). That the plaintiff has been living in matrimonial

home, sharing the same bed and cohabited with the

defendant upto 7th June, 2003 and both the parties were

going in the family functions together. The plaintiff never

engaged any counsel nor given any fee to him/her nor she

knew any Advocate by the name of Monica Malhotra nor

could recognize her face. In the court also, the Judge did

not put any query nor anybody in the court asked her about

the matter in question. The plaintiff was neither shown nor

given opportunity to read the statement in question by the

defendant and she did whatever was dictated by the

defendant as settled between them on previous night, that

is, on 25th May, 2003. There was no question of waiving

her right to the custody of children.

(k). Since the signature of the plaintiff on both the

petition and affidavit and the joint statement were obtained

from her by the defendant by fraud, misrepresentation and

undue influence and thus, judgment and decree dated 3 rd

June, 2008 passed by the Court of Sh.S.C.Mittal, Additional

District Judge is liable to be set aside as null and void.

95. While the civil suit was pending in the court, the

respondent/wife moved an application under Section 151

CPC to recall/set aside the judgment and decree dated 3 rd

June, 2003 inter alia on the following grounds:-

(a). That none of the grounds for passing of the said

decree ever existed and the Court would not have passed

the same on 3rd June, 2003 but for the fraud committed and

conspiracy hatched by the husband.

(b). On the night of 22nd May, 2003 when the wife was

very much shocked and disturbed and was in a hurry to go

to her parents house, as her grandmother has expired, the

husband asked her to sign on some papers on a scheme for

better future of the children. The wife wanted to read

them but the husband retorted that she would have faith in

him. Believing his words, the wife had signed on all the

papers without reading them.

(c). In the said petition, it was stated that stridhan was

settled, which is also totally false. It is stated that the FIR

has been registered regarding the same against the

husband and other in-laws at P.S. Greater Kailash vide FIR

No.393/2006 under Sections 120B/406/420/498A IPC dated

19th October, 2006.

(d). Remaining allegations mentioned in the application

under Section 151 CPC are almost similar to those

allegations which have been mentioned, in the civil suit

filed by the respondent/wife.

96. As stated above, the respondent has admittedly filed a

civil suit for declaring the decree as null and void in

February, 2006 and while that civil suit was pending, the

respondent-wife moved an application under section 151

CPC for recalling/setting aside of the order dated 3 rd June,

2003 passed by Addl.District Judge for setting aside the

divorce decree.

97. The question which arises for consideration is when

the civil suit was also pending on the same issue, can the

Addl.District Judge had the jurisdiction to entertain

application under Section 151 CPC on that point.

98. On this issue, Order 2 CPC may be referred to. The

relevant provisions of the Order 2 CPC, read as follows:-

"R.1.Frame of suit.-Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them R.2.Suit to include the whole claim.-

(1)Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of this claim in order to bring the suit within the jurisdiction of any Court.

             (2) Relinquishment          of   part    of
             claim.-
             Where a plaintiff omits to sue in
             respect     of,    or     intentionally

relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs.-

A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such relief, he shall not afterwards sue for any relief so omitted.

Explanation:- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."

99. It is well settled that in order to attract the bar of

Order 2 Rule 2, the earlier suit should be founded on the

same cause of action on which the subsequent suit is

based, and if in the earlier suit, the plaintiff has omitted to

sue in respect of or intentionally relinquished any portion

of his claim, he will not subsequently be entitled to sue in

respect of portion of his claim so omitted or relinquished.

100. Order 2 Rule 2 CPC is directed to secure the

exhaustion of the relief in respect of a cause of action and

not to the inclusion in one and the same action of different

causes of action, even though they arise from the same

transaction. The first part makes it incumbent on the

plaintiff to include the whole of the claim in his action. The

later portion makes it incumbent on him to ask for the

whole of the remedies. The cause of action in the two suits

may be considered to be the same, if in substance they are

identical.

101. In the civil suit, the relief claimed by the respondent-

wife is that judgment and decree dated 3rd June, 2003

passed by the court of Sh.S.C.Mittal, Additional District

Judge in HMA No.522/03 be set aside and declared as null

and void.

102. In the civil suit filed by the respondent-wife, the

allegations are that the appellant/husband has asked the

respondent to sign on some papers on the pretext of some

scheme for better future of their children.

103. On 26th May, 2003, she was made to sign on a

statement without allowing her to read them since the

appellant-husband has taken her to some office which the

respondent did not know that the same was a court and

there was some Advocate who was waiting and she was

asked to sign all papers.

104. In the application under Section 151CPC filed by the

respondent-wife for recalling/setting aside the judgment

and decree dated 3rd June, 2003, the same allegation has

been made that on 22nd May, 2003, the appellant-husband

asked the respondent-wife to sign some papers on a

scheme for better future of children. The respondent

wanted to read the same but the husband retorted that she

should have faith on him and believing his words, she has

signed on all the papers without reading them.

105. Another allegation made in this application is that on

26th May, 2003, the appellant-husband asked her to be

ready to go some place and to sign on some papers.

Thereafter, the appellant drugged her and took her to some

office which she did not know that the same was court and

some Advocate was waiting for the appellant. There she

was asked to sign on papers which she did as directed by

the appellant without reading the same. In this

application, the same relief has been sought that the

judgment and decree dated 3rd June, 2003 be recalled/set

aside.

106. Since the civil suit on the similar cause of action filed

by the respondent-wife was pending and during the

pendency of that suit, respondent-wife has filed application

under Section 151 CPC for setting aside the decree, under

these circumstances, the application under Section 151

CPC does not lie at all.

107. The next point which arises for consideration is about

the inordinate delay in filing the application under Section

151 CPC for recalling/set aside of the judgment/decree.

108. The divorce was granted in this case on 3 rd June, 2003

and the respondent had come to know about the divorce on

8th June, 2003 itself.

109. On 15th July, 2003, respondent has submitted an

application in the passport office for passport in lieu of lost

passport. In this application form, respondent has

mentioned her name as Gayatri Bajaj. She has left the

name of her spouse-as blank. The permanent as well as

present address mentioned is N-30, Greater Kailash, Part-I,

New Delhi, which is not address of her matrimonial home.

Along with this form, photocopy of court verdict (petition

for divorce) has been enclosed as one of the enclosure.

110. There is also a deed of poll signed by respondent,

dated 16th July, 2003 declaring that she has abandon the

use of her former name/surname of Gayatri Bhalla and has

assumed the name/surname Gayatri Bajaj.

111. All these facts goes on to show that at the time of

submitting of an application for passport, she knew about

the divorce proceedings and did not mention the name of

her former husband, i.e., appellant in the relevant

documents and had in her possession copy of divorce

proceedings. If she had all the knowledge of divorce

proceeding as early as July, 2003, then why she remained

silent for more than two and half years and why she did not

challenge the divorce proceedings, if obtained by fraud.

There is no explanation whatsoever, for this inordinate

delay.

112. For the first time, in February, 2006 the respondent

filed civil suit challenging decree of divorce and in that suit

she has stated that cause of action arose on 22 nd May,

2003.

113. Application under Section 151 CPC has been filed in

December, 2006, that is, more than 3½ years after the

divorce was granted and in this application also there is no

explanation as to why it took her 3½ years to challenge the

decree of divorce.

114. It is well settled that delay and latches cannot

command premium and there is no explanation whatsoever

about this inordinate delay in filing the civil suit as well as

application under Section 151 CPC.

115. Now, coming to the fraud as alleged by the

respondent in obtaining the divorce decree by the

appellant, the respondent has taken contradictory stands in

her civil suit and in application under Section 151 CPC.

116. In application under Section 151 CPC, it has been

stated that on 26th May, 2003, the appellant asked the

respondent to be ready to go some place and be ready for

fulfilling the vow and sign on some papers at the destined

place and warned her that said vow should not be broken

and papers should not be read at all before signing.

Thereafter, the appellant drugged her and took her to some

office.

117. So this story of drugging of the respondent by the

appellant has been taken for the first time in application

under Section 151 CPC and this is a new stand taken by

the respondent, which was not her earlier stand, in the civil

suit.

118. So, it is a matter of evidence as to whether the

appellant drugged respondent or not and whether her

signatures were obtained on the documents for better

future of the children or to buy some property. There are

all triable issues.

119. In application under Section 151 CPC for recall, it has

been alleged by the respondent that she never engaged any

counsel nor given any fees to him/her nor she knew any

Advocate by the name of Ms.Monica Malhotra, nor could

recognize her face.

120. As per documents placed on record, petitions under

Sections 13(B)(1) and 13(B)(2) of the Act have also been

signed by Ms.Monica Malhotra, Advocate for respondent

and signatures of respondent on affidavits have been

identified by Ms.Monica Malhotra, Advocate.

121. There is nothing on record to show that if, Ms.Monica

Malhotra was not the Advocate of respondent, had

respondent taken any action against her Advocate for

appearing in the court, unauthorisedly. Moreover, it a

matter of evidence as to whether this Ms.Monica Malhotra

was the Advocate of respondent or not.

122. Now coming to the fraud, the respondent in her

application under Section 151 has referred to a decision of

Apex Court reported as Indian Bank v. M/s Satyam

Fibres (India) Pvt. Ltd. 1996(7) SC 135. In this case

the Apex Court has held that;

"The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent power are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not

from legislation but from the nature and the constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the Court‟s business."

Further, the Court observed;

"Since the evidence of the parties is already on record and all vital facts either stand admitted or proved, we proceed now to consider whether forgery and fraud was established."

123. In that case, the evidence was already before the

Apex Court and on basis of that evidence, the Court

proceeded.

124. Here in the present case, the Addl.District Judge

without recording the evidence and without going into the

allegations and counter allegations made by both the

parties, has disposed of this application, which is

unwarranted, since all the allegations and counter

allegations made in the present proceedings require

evidence.

125. Now, the question which arises for consideration as

to whether present appeal under Section 28 of Act is

maintainable or not. Even assuming for arguments sake

that appeal is not maintainable, but revision does lie and

this appeal can be treated as revision.

126. When admittedly, civil suit was pending, then there

was no occasion for Addl.District Judge to have admitted

application under Section 151CPC for consideration and as

such, the order of Addl.District Judge in entertaining

application under Section 151 CPC, was patently without

jurisdiction.

127. Lastly, the Addl. District Judge has made certain

observations about the health of the his predecessor.

128. There was no occasion for Sh.V.K.Khanna,

Addl.District Judge, to make such observations.

129. It has nowhere been pleaded by the

respondent/applicant in application under Section 151

CPC, that predecessor of Sh.V.K.Khanna, Additional

District Judge was not keeping good health or the judgment

has not been signed by him.

130. Sh.V.K.Khanna, Additional District Judge on its own

has made certain remarks/observations, which are

reproduced hereunder:-

"Most importantly, the signature‟s of Sh.S.C.Mittal ld. Predecessor of this court in the order passed in the first motion petition and in the second motion petition do not tally and are apparently different. Two orders are passed on 3.6.03. First motion petition is disposed of with the observation that "it can be revived if and when the second motion petition is preferred by the parties." Whereas second motion petition which was already there and statement in the second motion petition had also been recorded on the same date i.e. 26.5.03. In the second motion petition the marriage between the parties has been dissolved with immediate effect on 3.6.03. It is not that two motions cannot be allowed on the same date. The legal position is well settled now that court can waive time period of six months between two motions. These two contradictory orders are not usually passed at the same point of time. The petitions could be disposed of vide a common order. In both the petitions bearing No.521/03 and 522/03, the joint statement of the parties dated 26.5.03, are not signed by the ld. Predecessor and as observed above, the signatures of learned Predecessor on two judgments passed on same day i.e. 3.6.03 in first motion petition and second motion petition are apparently different." Further, he observed that;

"This court cannot comment too much upon the condition of Sh.S.C.Mittal ld.Presiding Officer at the relevant time but it is a open secret that Sh.S.C.Mittal ld. ADJ was not keeping well during those days."

131. A judicial officer has no authority or jurisdiction to

comment upon the functioning and working of judicial

officer of same rank, about the competency or physical

condition of his successor.

132. Whether an Additional District Judge, who is

subordinate to this Court, is competent to discharge his

judicial functions or not, that is, for this Court to decide.

Sh.V.K.Khanna, Additional District Judge has assumed

powers of this Court and has made sarcastic remarks on

the functioning, competency and physical condition of his

predecessor, Sh.S.C.Mittal, Additional District Judge (since

deceased) who was much senior in hierarchy to

Sh.V.K.Khanna, Additional District Judge.

133. A judicial officer, has no business or right to compare

the signatures of his predecessor on the judicial

proceedings which have been made by him in discharge of

his judicial functions. More so, when no pleadings

whatsoever in respect thereof, have been made by any of

the parties. The conduct of Sh.V.K.Khanna, Additional

Districut Judge in making the above remarks about the

physical conditions and functioning of Sh.S.C.Mittal,

Additional District Judge, are highly improper and uncalled

for.

134. In view of above discussion, the present appeal is,

hereby, allowed and the impugned order passed by

Sh.V.K.Khanna, Additional District Judge is, hereby, set

aside.

135. However, it is made clear that respondent can agitate

all those pleas as available to her under the law, in the civil

suit filed earlier and any observations made hereinabove,

shall have no bearing on the merit of the civil suit filed by

respondent earlier.

136. With these observations, the present appeal stands

disposed of.

137. A copy of this judgment be placed before the

Inspecting Judges of Sh.V.K.Khanna, Additional District

Judge, for taking appropriate action, against

Sh.V.K.Khanna, Additional District Judge for his improper

conduct, in making comments against his successor, which

are against the judicial ethics and discipline.

138. Parties shall bear their own costs.

139. Trial court record be sent back.

September 08, 2008                      V.B.GUPTA, J.
Bisht