Delhi High Court

Shri Praveen Kholi vs Smt. Komal @ Kamlesh on 13 March, 2015

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of hearing and order: 13th March 2015


+     MAT. APP. (F.C.) 60/2014

      SHRI PRAVEEN KHOLI                                  ..... Appellant

                          Through:      Mr. Inderpal Khokhar, Advocate



                          versus



      SMT. KOMAL @ KAMLESH                                ..... Respondent

                          Through:      None



      CORAM:

      HON'BLE MR. JUSTICE KAILASH GAMBHIR

      HON'BLE MR. JUSTICE I.S.MEHTA



                                    ORDER

%                                  13.03.2015
I.S.MEHTA, J (ORAL)

1. The appellant has preferred the present appeal under section 19 of the

Family Court Act, 1984 assailing the impugned judgment and decree dated

24.08.2013 passed by the learned trial court of Shri Sameer Bajpai, Tis

Hazari Court, and order dated 21.04.2014 passed by the learned court of Ms.

Reena Singh Nag, Judge, Family Court, West, Tis Hazari Courts.

2. The brief facts stated in the petition GP No. 73/12 titled as Smt.

Komal @ Kamlesh versus Sh. Praveen Kohli are that the marriage between

the appellant (Sh. Praveen Kohli) and the respondent (Smt. Komal @

Kamlesh) was solemnized on 15.02.2004 at Delhi according to Hindu rites

and customs and out of the said wedlock, a daughter, namely, Archita was

born on 18.07.2006. The respondent had filed the petition under section 25

of the Guardian and Wards Act for the custody of the minor daughter baby

Archita from the custody of Praveen Kohli (appellant) on the ground that the

appellant had developed an illicit relationship with one Ms. Kanchan Tiwari

and has a child namely, baby Mahi from the said illicit relationship.

Subsequently, the respondent ([email protected] Kamlesh) was thrown out of the

matrimonial home in only wearing apparels.

3. Consequently, the respondent (Komal @ Kamlesh) took the help of

her brother Rohtash who took her to the parental home after giving

information vide DD No. 37-B dated 04.09.2010. Thereafter, the appellant

i.e. Sh Praveen Kohli, filed a petition under section 25 of the Guardian and

Wards Act on false, frivolous and concocted ground and the respondent i.e.

Komal @ Kamlesh, filed a written statement as well as maintenance

application under section 26 of D.V Act, then the appellant withdrew his

petition on 23.11.2010. Further, during the pendency of the said

guardianship petition, the respondent made a complaint dated 21.10.2010 at

C.A.W. Cell and thereafter the appellant took the respondent and the minor

child to the matrimonial home from the C.A.W. Cell. Further, on 12.10.2011

the said Kanchan Tiwari forcibly tried to enter the room of the respondent

and misbehaved, man-handled and tried to dispossess her and her minor

child then, the respondent called the police. Later, the police took the

appellant and all his family members and Kanchan Tiwari to the police

station. Further, on 19.03.2012 the appellant forcibly took away the minor

daughter of the respondent from the school. Thereafter, the appellant broke

open the lock of the respondent's premises and removed/stolen entire goods

and articles.

4. Subsequently, on 21.03.2012 the respondent reached at the house of

the appellant alongwith her brother and sister-in-law where the appellant

was living in adultery with the said Kanchan Tiwari. Appellant along with

the said Kanchan Tiwari gave merciless beatings to the respondent, her

brother and sister-in-law. Then the respondent lodged a complaint vide D.D.

No. 23 on 21.03.2012 and MLC was prepared but the police took no action

regarding the same. It is further stated that the appellant has already

remarried with other girl and is having children from the said wedlock, so

the custody of the minor daughter, namely, Archita is not safe in the hands

of the appellant. The respondent is in well position to look after and take

care of the minor daughter and the future as well as the welfare of the minor

is safe in the custody of the respondent.

5. The appellant was served with a notice of the petition but he did not

turned up to contest the case and the appellant was proceeded ex-parte vide

order dated 05.01.2013. It is pertinent to mention that the appellant has filed

an application under order 9 rule 7 read with section 151 CPC for setting

aside/recalling the ex-parte order dated 05.01.2013. The said application was

dismissed for non-prosecution vide order dated 19.07.2013. And

subsequently, on the basis of the evidence on record the petition was allowed

in favor of the respondent (Komal @ Kamlesh) on 24.08.2013, directing the

appellant (Praveen Kohli) to handover the custody of the minor child,

namely, Archita to the respondent.

6. Subsequently, the appellant filed an application under order 9 rule 13

read with section 151 CPC on 01.11.2013 for setting aside the ex-parte

impugned order dated 24.08.2013. The said application finding devoid of

merit was dismissed by order dated 21.04.2014 passed by the learned court

of Ms. Reena Singh Nag, Ld. Judge, Family Court, West, Tis Hazari Courts.

Hence the present application.

7. The contentions put forward by the learned counsel for the appellant

are that the allegations made against the appellant by the respondent in the

petition (GP. No. 73/12) were false and frivolous and the appellant was

deprived to appear and contest the said false and frivolous petition by the

respondent deliberately and malafidely as it is apparent that the respondent

deliberately mentioned wrong and false addresses of the appellant. Further,

it is contended that it was within the knowledge of the respondent that the

appellant was residing at EXB-39, Gali No. 10, Hari Nagar, New Delhi, but

the respondent did not furnished the said correct address of the appellant as

to obtain an ex-parte judgment and decree against the appellant.

8. Further, the learned counsel submits that the appellant was not served

summons in the petition and the learned Trial Court proceeded ex-parte

against the appellant vide order dated 05.01.2013. Thereafter, the appellant

filed an application under Order 9 Rule 7 read with section 151 CPC for

setting aside the ex-parte order dated 05.01.2013. When the said application

for setting aside the ex-parte order dated 05.01.2013 was filed the matter

was adjourned for 19.07.2013, which unfortunately, was wrongly noted

down as 29.10.2013 by the counsel for the appellant and subsequently, the

said application was dismissed vide order dated 19.07.2013 and the learned

Trial Court passed an impugned judgment and decree dated 24.08.2013

allowing the said guardianship petition of the respondent and directed the

appellant to handover the custody of the minor child Archita to the

respondent.

9. Consequently, on 01.11.2013 the appellant filed an application under

Order 9 Rule 13 read with section 151 CPC for setting aside ex-parte

judgment and decree dated 24.08.2013, before the learned Trial Court and

the same finding devoid of merit was dismissed by the learned Court of Ms.

Reena Singh Nag, Judge Family Court, West, Tis Hazari Court, Delhi, vide

impugned order dated 21.04.2014.

We have heard the learned counsel for the appellant and also perused the

material on record.

10. As per the affidavit of the appellant dated 22.05.2013, his address is

stated as EXB-39, Gali No. 0, Hair Nagar, Delhi and the addresses given by

the respondent i.e. Komal @ Kamlesh, in the petition GP No.73/12 under

section 25 of the Guardianship and Wards Act for the appellant (Praveen

Kohli) are as follows:

i) Sh. Praveen Kohli s/o Sh. REoshan Lal, R/o E-179-180 (D.S.)

Ramesh Nagar, Delhi-110015;

ii) B-39, Extn., Gali No. 0, Hari Nagar, New Delhi-110018;

iii) H. No. 115-116, Pocket-5, sector-21, Rohini, Delhi-110085.

The material placed on record shows that the appellant himself has

given the address in the affidavit filed before the learned court of Sh. Sameer

Bajpai, senior civil judge, Delhi on 22.05.2013.

11. As per the report from the process server at the Hari Nager address

one Narender (brother of the appellant) had met and had a telephonic

conversation with the applicant wherein the appellant had then conveyed that

he had already received the summons.

12. There is no reason to disbelieve the report of the process server. As

per para no.3 of the present appeal the address given by the appellant is

EXB-39, Gali No. 10, Hari Nagar, New Delhi.

13. The relevant part of the appeal is reproduced as under:

"...The respondent was well within the knowledge that the appellant was residing at EXB-39, Gali No. 10, Hari Nager, New Delhi, but the respondent did not furnish the said correct and actual address of the appellant so as to get obtained the exparte judgment and decree against the appellant..."

Whereas, his own affidavit dated 22-05-2013 he himself has stated his

address as EXB-39, Gali No. 0, Hari Nagar, Delhi.

The address as shown by the appellant in the appeal made by him itself is

contradictory to the address given in the said affidavit.

14. Bare perusal of the aforesaid facts shows that it is nothing but is only

a deliberate attempt on the part of the appellant to take undue advantage and

misuse the judicial process.

15. It is further evident that the appellant himself has filed a petition under

section 25 of the Guardian and the Wards Act, and when the same was

contested by the respondent by filing a written statement as well as an

application under section 26 of the D.V Act, the appellant had withdrawn the

said petition on 23.11.2010, compelling the respondent to file an application

under section 25 of the Guardian and Wards Act, for the custody of the

minor daughter baby Archita on the ground that the appellant being in an

illicit relationship with one Kanchan Tiwari, the custody of the minor

daughter with the appellant who is having an illicit relationship with the said

Kanchan Tiwari is not in a proper and safe and is not in the interest qua the

minor daughter (baby Archita).

16. In presence of the natural mother (respondent) the learned Trial Court

has rightly given the custody of the minor daughter i.e. baby Archita to the

natural mother i.e. respondent on 24.08.2013.

17. The appellant despite service of the summons was trying to gain his

ulterior motive by not appearing before the Trial Court. Consequently, the

learned Trial Court proceeded ex-parte against the appellant on 05.01.2013.

18. The appellant thereafter, filed an application under order 9 rule 7 read

with section 151 CPC for setting aside the ex-parte order dated 05.01.2013

the same was dismissed for non-prosecution vide order dated 19.07.2013.

The said order dated 19.07.2013 is reproduced as under:

"...19.07.2013 Present: Petitioner in person with Ld. Counsel. None for the respondent despite repeated calls since morning. The application under Order 9 Rule CPC dated 22.05.2013 is dismissed for non- prosecution.