Delhi High Court
Monica Malik vs Amit Malik on 30 January, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 30.1.2014
+ CM(M) No.1050/2013 & CM No.15635/2013
MONICA MALIK ..... Petitioner
Through: Mr.Gurmeet Bindra, Adv.
versus
AMIT MALIK ..... Respondent
Through: None.
% MR. JUSTICE NAJMI WAZIRI (Open Court)
1. This petition seeks setting aside of an order dated 13.8.2013
whereby the petitioner's right to lead evidence was closed by the Family
Court, in a petition filed by the respondent-husband. Although the
petitioner was represented through counsel however she could not be
present for cross-examination, therefore the Trial Court considering that a
number of opportunities had already been granted to her closed her
evidence. Learned counsel for the petitioner states that this was the only
occasion on which there was default in appearance by the petitioner who
was otherwise duly represented throughout the proceedings. Perusal of
the Court orders shows that there was representation on behalf of the
petitioner (respondent in HMA No. 27/2010) on 11.4.2013, 20.4.2013,
4.6.2013 & 9.7.2013. That her examination-in-chief was recorded on 6th
March, 2013 and when it was next listed for 11.4.2013 the learned
Presiding Officer had gone to attend an environment awareness
programme. When the matter was taken up on 20.4.2013, the dismissal of
petition was sought on account of non-payment of arrears of maintenance
to the wife. On the next date thereafter, nothing transpired since the
Presiding Officer had been transferred and on the subsequent listing the
case could not be taken up since the Advocates were abstaining from
work - allegedly because of strike declared by the Bar Association.
However, the respondent was represented through a proxy counsel. The
case was next listed on 13.8.2013 for clearance of payment arrears of
maintenance as well as for cross-examination of RW-1 i.e. the petitioner.
It is only on this date when the petitioner did not appear as required, for
further recording of her evidence. Therefore from the perusal of the
records it cannot be concluded that the number of opportunities had
already been granted to the petitioner (wife) to complete her evidence.
Subsequent to the recording of the examination-in-chief no adjournment
was sought by the petitioner. The reasons why the cross-examination
could not be held on each of the five dates subsequent thereto are
contained in the afore-discussed orders. No fault can be attributed to the
petitioner. Therefore, there is material irregularity in the impugned order.
Accordingly, it is set aside and the petitioner is permitted to be cross-
examined and lead her evidence. This Court is of the opinion that in
deserving and justifiable cases Court fixed schedules can be modified to
meet the ends of justice. This being the first default in appearance, on the
date on which the petitioner was required to appear in Court, could well
have been condoned subject to payment of costs rather than visiting the
petitioner with precipitate effect of closing her evidence. The impugned
order would have an irreparable prejudice upon the petitioner's rights and
contentions. In the circumstances, the order is set aside. However, she
did not appear on 13.8.2013 and knew in advance that she would be
unable to attend Court because of personal constraints, she would have
intimated the opposite party and sought an adjournment before the Court,
either by mutual consent or by way of an application. Therefore, for this
default, the petitioner is subjected to costs of Rs.1,500/- to be paid to the
respondent. Subject to the costs, the petition is allowed. The Trial
Court shall proceed to record the evidence of the respondent. Looking at
the facts that case is pending since 2010 the Trial Court shall endeavour
to dispose off the pending petition itself in the next one year, provided
there are no legal impediments in doing so.
2. The petition is disposed off in the above terms.
NAJMI WAZIRI
(JUDGE)
JANUARY 30, 2014/ak
