Smt. Anupama vs Sanjeet Kumar
2023 Latest Caselaw 2458 Tel

      THE HONOURABLE SRI JUSTICE K.SARATH

     Civil Revision Petition Nos.893 and 894 of 2023

COMMON ORDER:

        Heard Sri V. Ramu, learned counsel for the

petitioner and Sri Amim Ali Allauddin, learned

counsel for the respondent.

2. Since both these revisions arise out of the

common order dated 20.02.2023 in I.A.Nos.68 and

69 of 2023 in O.P.No.670 of 2018 on the file of the

Judge, I Additional Family Court at Hyderabad, they

are being disposed of by this common order.

3. The case of the petitioner-wife is that she filed

O.P. for restitution of conjugal rights against the

respondent-husband. She filed her evidence affidavit

and the Court below has appointed an Advocate

Commissioner for recording of cross-examination.

The Advocate Commissioner has issued notice to

both parties fixing the date of cross-examination on

30.12.2019, but despite service of notice, the

SK, J C.R.P.Nos.893 and 894 of 2023

respondent failed to appear. Basing on the memo

filed by the Advocate Commissioner, the Court below

has closed the evidence and posted the matter for

further evidence. Thereafter, the petitioner has

produced the evidence of P.W.2, but the respondent

failed to cross-examine P.W.2 and the Court below

has closed evidence and posted the matter for

arguments. At that stage, the respondent filed the

impugned applications seeking to reopen the

evidence of P.W.1 and P.W.2 and to recall P.W.1 for

the purpose of cross-examination stating that he has

changed his counsel after obtaining no objection

from his previous counsel and on verification of

records, he came to know that the cross-

examination of P.Ws.1 and 2 was recorded as 'nil'.

4. The Court below having held that it is just and

necessary to recall P.Ws.1 and 2 for the purpose of

cross-examination for proper adjudication of O.P.

allowed both the petitions. Aggrieved by the same,

the petitioner-wife filed the present revisions.

SK, J C.R.P.Nos.893 and 894 of 2023

5. Learned counsel for the petitioner submits that

when the OP. is at the stage of arguments, the

respondent filed the present applications in order to

delay the proceedings and to fill up the lacunas and

latches on his part. He further submits that earlier,

the similar applications filed by the respondent were

allowed and without considering the same, the Court

below allowed the present applications for the

second time. Hence, he prays to allow the revisions.

6. Learned counsel for the respondent submits

that the petitioner and the respondent have agreed

to dissolve their marriage by mutual consent and

entered into an agreement dated 10.03.2014, as per

which, the respondent paid a sum of Rs.7,00,000/-

by way of a cheque dated 09.03.2014 to the

petitioner towards permanent alimony and

accordingly they have filed a divorce petition before

the Principal Judge, Family Court, Patna. He

submits that having received the amount towards

permanent alimony as per the agreement and filed

SK, J C.R.P.Nos.893 and 894 of 2023

divorce petition by mutual consent, the petitioner

filed a petition for withdrawal of consent for divorce

falsely alleging that the consent for dissolution of

marriage has been obtained by misrepresentation

and concealment of facts and she was pressurized

by the respondent and his parents and also alleged

that out of a sum of Rs.10,00,000/-, only cash of

Rs.7,00,000/- was paid and there is still due a sum

of Rs.3,00,000/-. Learned counsel submits that the

divorce petition was dismissed on the ground of

territorial jurisdiction and thereafter, the respondent

filed Matrimonial Case No.661 of 2017 on the file of

the Principal Judge, Family Court Patna and the

same is pending.

7. Learned counsel for the respondent further

submits that the previous counsel of respondent has

neither cross-examined P.W.1 and P.W.2 nor the

evidence on behalf of respondent was adduced and

hence, he engaged another advocate and filed the

present petitions to reopen the evidence of P.W.1

SK, J C.R.P.Nos.893 and 894 of 2023

and P.W.2 and to recall P.W.1. He further submits

that as the O.P. is filed for restitution of conjugal

rights, the cross-examination of P.W.1 and P.W.2 is

very much essential for proper adjudication of the

matter. He further submits that the party cannot be

made suffer due to the fault of the counsel and the

Court below has rightly allowed the I.As filed by the

respondent and requested to dismiss the revision

petitions. He relied on the following judgments:

1. A. Yameen Qureshi vs. S. Rajeshwari 1

2. S.P.Chengalvaraya Naidu (dead) by LRs. Vs.

Jagannath (dead) by LRS and others 2

3. Kshitij Infraventures Pvt. Ltd. Rep. by its

Director Sri Rajkumar Malpani v. Khorshed

Shapoor Chenai and others 3

4. Randhir Singh vs. State of Haryana and

others 4

2019 SCC OnLine TS 3514

(1994) 1 SCC 1s

2022 SCC OnLine TS 38

2019 SCC OnLine P & H 7661

SK, J C.R.P.Nos.893 and 894 of 2023

5. Rajesh Chandran vs. M.R.Gopalakrishnan

Nair 5

6. Chetna Rathee vs. Chahit Kundu 6

8. After hearing both sides, this Court is of the

considered view that the petitioner and the

respondent are wife and husband and due to

disputes in their matrimonial life, they have filed

different cases before the different Courts.

Presently, the petitioner herein filed O.P.No.670 of

2018 for restitution of conjugal rights before the

Family Court, City Civil Court, Hyderabad and the

respondent filed Matrimonial (Divorce) Case No.661

of 2017 on the file of the Principal Judge, Family

Court, Patna. The respondent filed I.A.Nos.68 and

69 of 2023 in O.P.No.670 of 2018 on the file of the

Judge, I Additional Family Court at Hyderabad to

reopen the evidence of P.Ws.1 and 2 and to recall

P.W.1 for the purpose of cross-examination and the

Unreported judgment of Kerala High Court in OP(C).No.281 of 2022 dated 22-07-2022.

2023 SCC OnLine Del 2950

SK, J C.R.P.Nos.893 and 894 of 2023

same was allowed by the Court below by appointing

an Advocate Commissioner to record cross-

examination of P.W.1 and P.W.2 and directed to pay

costs of Rs.2,000/-each to P.W.1 and P.W.2. The

Court below observed that it is just and necessary to

recall P.W.1 and P.W.2 for the purpose of cross-

examination for proper adjudication.

9. Learned counsel for the petitioner vehemently

argued that on earlier occasion, similar applications

i.e. I.A.Nos.512 and 513 of 2022 in O.S.No.670 of

2018 were allowed by the Court below

on 21.09.2022 and without considering the same,

the Court below again passed the impugned order

and the same is liable to be set aside. Admittedly,

no cross-examination was done by the respondent

on earlier occasion due to non-appearance of his

counsel and thereafter, the respondent has changed

his counsel and filed the present petitions.

SK, J C.R.P.Nos.893 and 894 of 2023

10. The contention of the learned counsel for the

petitioner is that presently P.W.1 and P.W.2 are not

residing in Hyderabad and as the trial Court has

granted costs of Rs.2,000/- each only, the petitioner

cannot bare the expenses of lodging and boarding

charges if the cross-examination is continued. In the

instant case, admittedly there is no cross-

examination of P.W.1 and P.W.2 and the judgments

relied on by the counsel for the respondent are apply

to the instant case with regard to party cannot suffer

due to the fault of the counsel and as such this

Court is not inclined to interfere with the orders

passed by the Court below.

12. In view of the above findings, both the Civil

Revision Petitions are disposed of modifying the

order passed by the Court below in I.A.Nos.68 and

69 of 2023 in O.P.No.670 of 2018 on the file of the

Judge, I Additional Family Court at Hyderabad

dated 20.02.2023 directing the respondent to pay

the costs of Rs.2,000/- each and also pay travelling,

SK, J C.R.P.Nos.893 and 894 of 2023

lodging and boarding expenses of P.W.1 and P.W.2

up to the completion of their cross-examination. The

Court below is directed not to insist the petitioner to

appear before the Court on each and every date of

adjournment unless her presence is required. No

order as to costs.

13. Miscellaneous Petitioners, if any pending in

these revisions shall stand closed.

_____________

K. SARATH, J

Date: 19.09.2023

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