Delhi High Court
Sunita vs Sanjay Kumar on 13 October, 2017
$~5.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT.APP.(F.C.) 178/2017 and CM APPL. 36762-63/2017
SUNITA ..... Appellant
Through: Mr. Shailender Dahiya, Advocate
versus
SANJAY KUMAR ..... Respondent
Through: None
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE DEEPA SHARMA
ORDER
% 13.10.2017
1. The present appeal has been filed by the appellant/wife against an
order dated 13.09.2017 passed by the learned Family Court, dismissing her
application for seeking review of an order dated 01.03.2017, whereby an
earlier application filed by her under Section 151 CPC for permission to
examine a witness (Shri Jitender), was dismissed.
2. It is deemed necessary to briefly refer to the relevant sequence of
events in the present case. The respondent/husband filed a petition under
Section 11 of the Hindu Marriage Act praying inter alia for a decree of
nullity of marriage against the appellant/wife. After the pleadings were
completed, the parties had filed their respective list of witnesses. Counsel for
the appellant states that the appellant had cited seven witnesses in her list of
witnesses and out of the said witnesses, she had examined herself as RW-3,
her father, Shri Mahavir Singh as RW-1 and a neighbour, Shri Ishwar Singh
as RW-2. Though the said list of witnesses had cited the names of four
other persons, including one Shri Krishan Chander, the appellant did not file
his affidavit by way of evidence along with the other witnesses.
3. Thereafter, the appellant moved an application before the Family
Court under Section 151 CPC, for permission to examine a witness by the
name of Jitender, who happens to be the brother-in-law of the respondent
(sister's husband). The said application was dismissed by the Family Court
vide order dated 01.03.2017, wherein it was observed that there is a marital
discord between Shri Jitender and the respondent's sister and they have been
living separately and the appellant/wife seeks to produce the said witness as
he has been won over by her and would be ready to depose against the
respondent.
4. Aggrieved by the dismissal of the aforesaid application, the appellant
had preferred an appeal before the High Court, registered as
MAT.APP.(F.C.) 51/2017, which was dismissed in limine by the Division
Bench vide order dated 12.04.2017, while observing therein that the matter
was at the stage of final arguments on 26.04.2017 and at that belated stage,
the appellant could not be permitted to seek leave to produce another
witness, namely, the brother-in-law of the respondent, only to fill up
vacuum/lacuna in her evidence. It was also observed on a perusal of the
order sheets of the proceedings before the Family Court that the appellant
had been adopting all kinds of dilatory tactics, which attempt ought to be
curbed with a firm hand.
5. Though the appellant chose not to file any appeal before the Supreme
Court against the order dated 12.4.2107, she went back to the Family Court
and moved a fresh application under Section 114 read with Section
151 CPC, for seeking review of the order dated 01.03.2017 that had been
tested by the Division Bench in MAT.APP.(F.C.) 51/2017 and duly upheld.
6. Learned counsel for the appellant submits that twofold prayers were
made in the said application, one for reviewing the order dated 01.03.2017
and the other for being granted permission to examine one Shri Krishan
Chander as a witness.
7. By the impugned order dated 13.09.2017, the prayer made for
examining any further witness was rejected by the learned Family Court, in
view of the fact that the evidence of the respondent was closed on
01.03.2017. Notice was also taken of the casual manner in which the petition
was being defended by the appellant and the number of opportunities taken
by her only to delay the proceedings, by changing her counsel more than
thrice and seeking several adjournments on other counts.
8. We may note that the evidence of the respondent/husband was closed
as long back as on 04.03.2016 and after the passage of almost one year, the
respondent's evidence came to be closed by the learned Family Court on
01.03.2017, after she had examined herself and two other witnesses. It is
noteworthy that Mr. Krishan Chander, who the appellant has sought leave to
produce as an additional witness, was duly cited by her in the list of
witnesses but his affidavit by way of evidence was not filed alongwith the
affidavits of the other witnesses. Though the said witness was not required
to be summoned through court proceedings but only produced by the
appellant on her own for recording his evidence, he did not present himself
on 01.03.2017, the date on which the appellant's evidence was finally
closed. The records reveal that the affidavit of Mr. Krishan Chander was
sought to be filed by the appellant only on 20.04.2017, by which date her
evidence was closed. By now, arguments have already been addressed by
the respondent in the main petition and the matter was listed before the
Family Court on 09.10.2017, for the appellant to address arguments but an
adjournment was sought on the ground that the present appeal has been filed
by her. Now, the matter is listed before the Family Court on 24.10.2017, for
the appellant to address her arguments.
9. Given the above facts and circumstances, we are of the opinion that
the present appeal is a gross abuse of the process of the court and yet another
attempt on the part of the appellant to somehow or the other delay the
proceedings before the Family Court. The Division Bench had already taken
an adverse notice of the conduct of the appellant in the earlier appeal filed
by her and frowned upon the dilatory tactics adopted by her. However, the
court had refrained from imposing any costs on the appellant while
dismissing her appeal in limine. This time, it is deemed appropriate to
dismiss the present appeal in limine with costs of Rs.10,000/- imposed on
the appellant to be paid to the respondent on the next date of hearing fixed
before the Family Court.
10. The appeal is dismissed alongwith the pending applications.
HIMA KOHLI, J
DEEPA SHARMA, J
OCTOBER 13, 2017
rkb/ap
