Mr. Siddharth Jain, vs Mrs. Neha Salecha
2023 Latest Caselaw 1843 Tel

               HON'BLE SRI JUSTICE P.NAVEEN RAO

            CIVIL REVISION PETITION NO.165 OF 2023

                         Date:   28.04.2023

Between:

 Mr. Siddharth Jain s/o. Rupender Jain,
Aged about 30 years, occu: Service,
r/o.H.No.1-37-31, Paigah Colony,
SP Road, Balam Rai, Secunderabad.


                                                  .... Petitioner
           And

Mrs. Neha Salecha, d/o. Padam Salecha,
Aged about 29 years, occu: Business,
r/o.181, Tanjong Rhu Road, # 02-01,
Singapore.
                                               ..... Respondent




This Court made the following:
                                      -2-


                HON'BLE SRI JUSTICE P.NAVEEN RAO

              CIVIL REVISION PETITION NO.165 OF 2023

ORDER :

Heard learned senior counsel Sri A Venkatesh appearing for

petitioner and learned counsel for respondent Sri D Madhava Rao.

2. Petitioner and respondent married in Bangkok on

27.2.2017 and the marriage was solmonized as per the Hindu Marriage

Act. It appears, they stayed in Hyderabad from 1.3.2017 to 5.3.2017.

On 5.4.2017 respondent flew to Singapore, her maternal home and

returned on 6.5.2017 along with her parents. Differences arose

between them and petitioner filed F.C.O.P No.263 of 2019 before the

Principal Family Court, City Civil Court, Secunderabad praying to grant

decree dissolving the marriage held on 27.2.2017. In F.C.O.P petitioner

has furnished address of the respondent as 28, Scotts Road, #13-05,

Singapore-228223. By order dated 16.9.2019, F.C.O.P was allowed

dissolving the marriage, as it was not contested by respondent.

3. Respondent filed I.A. No. 553 of 2021 praying to set aside the

exparte decree dated 16.9.2019 dissolving the marriage and to pass

orders. Said I.A. is pending consideration before the Family Court.

In the said I.A., petitioner filed I.A. No. 898 of 2022 under Order 16

Rule 1 read with Section 151 and 141 CPC praying to summon the

respondent for cross examination. According to petitioner, the

respondent was set ex-parte and there after F.C.O.P was disposed of

finally on 16.9.2019 and the application was filed two years after the

decree of divorce was passed. According to petitioner respondent

pleaded in the affidavit with regard to change of address without

intimation to petitioner. Therefore, petitioner intends to cross examine

the respondent in the present proceedings and sought leave of the

Court to summon the respondent. Said application is opposed by

respondent.

4. On assessing the rival submissions, learned Family Court by

order under revision, dismissed said application.

5. Learned senior counsel appearing for petitioner contended that

after more than two years, present application is filed to reopen the

F.C.O.P only to harass and humiliate the petitioner. After the marriage

was dissolved, petitioner married another lady and a child is born to

them on 28.2.2022 and if the application is allowed and F.C.O.P is

restored, same would cause great hardship and suffering to the

petitioner as well as his wife and child. He would submit that as per

the address available with the petitioner, he has mentioned the same in

the F.C.O.P. In various applications and affidavits filed by the

respondent, different addresses are furnished but at the relevant point

of time respondent was residing in the address furnished by the

petitioner in F.C.O.P. Having regard to the facts stated in the affidavit

filed in support of the application in IA No. 553 of 2021, petitioner

intends to cross examine the respondent.

6. Order XIX Rules 1 and 2 of CPC vests discretion in the Court and

Court can order any particular matter of fact to be proved by affidavit

and affidavit of the witness may be read at the hearing on such

contention. According to Rule 2, Court can order attendance of a

person for cross examination of the deponent. By referring to these

provisions and the word 'prove' as defined in Section 3 of the Indian

Evidence Act, 1872 learned senior counsel would contend that having

regard to the averments made in paragraph 7 of the affidavit filed in I A

No. 553 of 2021, the prayer of the petitioner to cross examine the

witness is erroneously rejected. He would submit that by virtue of Rule

2 of Order XIX petitioner has got right to cross examine the respondent.

7. In support of his contention, he relied on decision of this Court in

Nadella Estate Pvt Ltd Vs Prema Ravindranath and ors1.

8. Per contra, according to learned counsel for respondent

Sri D Madhava Rao, this application is filed to lead evidence. Based on

the depositions in the affidavit filed in support of the application

praying the court to grant appropriate relief, respondent cannot be

subjected to cross examination as is sought to be contended by learned

senior counsel. He would submit that order XIX Rules 1 and 2 do not

come to the aid of the petitioner as said provisions are not applicable to

MANU/AP/2580/2014

cross examine a person on the averments made in the affidavit filed in

support of application to grant a relief. It is not an evidence, therefore

question of cross examination does not arise. In support of his

contention, leaned counsel relied on judgment of Madras High Court in

K Karuppannan Vs N Chinnappan2.

9. In this revision, I am not concerned with the validity of the

reasons given by the respondent in filing I A No. 553 of 2021 to set

aside the ex-parte order dated 16.9.2019 dissolving the marriage and to

give fair opportunity of hearing. In support of the application,

respondent filed affidavit and in the said affidavit respondent has

explained her version as to why she could not enter appearance and

prayed to set aside the ex-parte decree. The respondent has to prove

with cogent material that she has not received the summons in F.C.O.P,

and therefore there was no occasion for her to contest the F.C.O.P. At

that stage, it is open to the petitioner to controvert said assertions of

respondent and it is for the Court to consider whether a case is made

out for setting aside the exparte decree dissolving the marriage.

10. In Nadella Estate Pvt Ltd, learned single Judge of this Court

summarized the law on the subject with reference to provision in Order

XIX Rules 1 and 2 of CPC. According to learned Judge, if facts warrant,

Court may call deponent of an affidavit to permit cross examination but

it is not a matter of course and Court has to weigh the options having

MANU/TN/1855/2012

regard to the facts and circumstances of a given case. Only if Court

finds cross examination is necessary for satisfying itself about the truth

of the averments, Court may permit cross examination.

11. As held by the Madras High Court in K Karuppannan following

the decision of the Hon'ble Supreme Court in Sudha Devi Vs.

M.P.Narayanan3 affidavits are not included in the definition of evidence,

therefore, for the Court to exercise discretion vested under Order XIX

Rule 2, the party has to make out a strong case and absolute discretion

is vested in the Court either to allow or to reject such request.

12. An affidavit filed in support of an application praying to grant

appropriate relief is not an evidence. Even assuming that opposite

party wants to cross examine the deponent to an affidavit, he can file an

application but it is the absolute discretion of the trial Court to permit

such cross examination or to reject. In the case on hand, Family Court

having considered respective submissions and having regard to the

facts of the case found it not desirable to call the respondent for cross

examination. The Family Court observed that burden is on the

respondent to prove her contentions as averred in her application to set

aside the decree. The Family Court noticed that only reason assigned

by the petitioner to cross examine the respondent is that the petitioner

has furnished different addresses and seeks to cross examine the

respondent on that ground. The Family Court found that it is not

1988 (3) SCC 366

necessary to cross examine the respondent on that ground as the

burden is on the respondent to prove her assertions in the affidavit filed

in support of the application.

13. Having regard to the scope of Order XIX Rule 2, the trial Court

declined to exercise its discretion. In exercise of power of

superintendence under Article 227 of the constitution of India, this

Court cannot sit in appeal and hold exercise of such discretion as

illegal. Having regard to the facts of this case, I do not see any error

committed by the Family Court in refusing to grant relief prayed by the

petitioner warranting interference by this Court. Accordingly, the

revision is dismissed. Pending miscellaneous petitions, if any, shall

stand closed.

__________________ P.NAVEEN RAO,J Date:28-04-2023 tvk

HON'BLE SRI JUSTICE P.NAVEEN RAO

CIVIL REVISION PETITION NO.165 OF 2023

Date: 28.04 .2023 tvk