Madras High Court
S.Geetha vs G.Thulasidaran on 4 June, 2024
C.R.P.No.318 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.06.2024
CORAM:
THE HONOURABLE Mr.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.318 of 2023
and CMP.No.2696 of 2023
S.Geetha ... Petitioner
Vs
G.Thulasidaran ... Respondent
Prayer : Civil Revision Petition filed under Article 227 of the Constitution of
India praying to set aside the docket order dated 17.12.2022 made in
I.A.SR.No.3159 of 2022 in F.C.O.S.No.5 of 2021 on the file of the Family
Court, Chengalpattu.
For Petitioner : Mr.D.R.Arun Kumar
For Respondent : No Appearance
[Respondent served]
ORDER
This revision is preferred challenging the order dated 17.12.2022
passed by the learned Judge, Family Court, Chengalpattu in I.A.SR.No.3159
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of 2022 in F.C.O.S.No.5 of 2021.
2. The petitioner has presented a suit in F.C.O.S.No.5 of 2021 pleading
that there was no marriage held between her and the respondent, and
therefore the certificate dated 29.04.2021 that has been issued declaring that
there has been a marriage, is null and void. It is her primary contention that
the marriage alleged to have been performed on 31.03.2021, never took place
and therefore, the certificate issued on that basis cannot be countenanced.
3. On service of summons, the defendant had entered appearance and
he had filed a detailed written statement. According to him, the marriage had
taken place at his residence on 31.03.2021, and this factum has been reflected
in the certificate.
4. Taking advantage of the written statement filed by the defendant, a
petition was taken out by the plaintiff/revision petitioner under Order XVIII
Rule 1 of the Code of Civil Procedure, seeking for a direction to direct the
defendant to enter the witness box first and depose his case. This petition
was filed on 13.12.2022. It was filed after service of notice on the
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respondent-husband. The respondent counsel made the following
endorsement :
" Pray time for counter. Received. For Respondent counsel.
Signed ...... 13.12.2022."
5. The said petition filed by the plaintiff/revision petitioner was
rejected at the SR stage itself by the learned Judge on 17.12.2022. Aggrieved
by which, the present revision.
6. This Court, vide its order dated 22.02.2023, has ordered notice to
the respondent and granted interim stay of the proceedings before the Family
Court. Though summons had been served on the respondent, he had not
appeared either through a counsel or in person to oppose the revision.
7. Mr.D.R.Arun Kumar, learned counsel appearing for the petitioner
relied on the judgment of this Court in R.Anita Marginic Vs R.Annadurai,
[(1992) 1 LW 194], and would draw my attention to paragraph No.10 of the
said judgment. Apart from that, he also invited my attention to the
adjudication proceedings of the case at hand before the Family Court at
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Chengalpattu.
8. A perusal of the said adjudication report would show that the suit in
F.C.O.S.No.5 of 2021 was called on 13.12.2022, and it was adjourned to
20.12.2022. He would state that on 17.12.2022, there was no hearing, but the
order reads as if the petition was rejected on that date. He would also state
that prior to the passing of the order, neither the petitioner nor her counsel
was heard. Therefore, they did not have an opportunity to produce a copy of
the judgment of this Court referred above before the learned Family Court.
9. The position of law as regards the disposal of an unnumbered
application had been dealt with by Hon'ble Mr. Justice N.Seshasayee in
Selvaraj Vs Koodankulam Nuclear Power Plant India, [2021 (3) LW 677].
His Lordship had held that prior to the disposal of the application, notice has
to be ordered to the respondent, a counter has to be received from the
respondent if he/she desires to file one, and after hearing the parties, the
Judge should dispose of the application. He had specifically held that
judicial orders must not be passed as if they are ministerial in nature.
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10. Applying the law laid down by the learned Judge in Selvaraj Vs
Koodankulam Nuclear Power Plant India case to the facts of the present
case and going through the adjudication proceedings that has been filed
before me, it is clear that on 17.12.2022, there was no hearing. On that date,
if the parties were not aware that their matter is going to be called and yet the
Court proceeds to pass an order, it would be a travesty of justice. One of the
hallmarks of adjudicatory process is to adhere to the principles of natural
justice, in particular to the principle of audi alteram partem. Rejection of a
petition without giving an opportunity of hearing to the parties does not meet
the requirements of fairness. Therefore, the learned Trial Judge ought to
have numbered the petition, received a counter from the respondent if any,
heard the arguments, and thereafter, should have passed an order.
Consequently, the order dated 17.12.2022 passed in I.A.SR.No.3159 of 2022
in F.C.O.S.No.5 of 2021 is set aside.
11. The learned Judge, Family Court, Chennai is now required to
number the petition, receive the counter as per the endorsement so made by
the learned counsel for the respondent, and thereafter proceed to pass an
order. While passing the order, the learned Judge may take into
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consideration the judgment in R.Anita Marginic Vs R.Annadurai, (1992) 1
LW 194, relied on by the petitioner.
12. With the above observation, this civil revision petition stands
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
04.06.2024
Index:Yes/No
Internet : Yes / No
Speaking order / Non-speaking order
ds
To:
1.The Judge
Family Court, Chennai.
2.The Section Officer
VR Section, High Court, Chennai.
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN,J.
ds
04.06.2024
https://www.mhc.tn.gov.in/judis
