Telangana High Court
Mrs. Swathi Srivatsav vs Mr. Rohit Kumar on 21 June, 2024
*THE HON'BLE SRI JUSTICE SUJOY PAUL
+CIVIL REVISION PETITION No.1609 of 2024
% 21-06-2024
#Swathi Srivatsav
...Petitioner
vs.
$Rohit Kumar.
... Respondent
!Counsel for the Petitioner: Sri R.A.Achuthanand.
^Counsel for Respondent: -
<Gist :
>Head Note :
? Cases referred
1. 2005 SCC OnLine AP 447.
2. 2018 (5) ALD 461.
3. 2015 ALD 4 757.
4. AIR 1955 SC 425.
5. (1975) 1 SCC 774.
6. (1976) 1 SCC 719.
7. (1984) 3 SCC 46.
8. (2005) 4 SCC 480.
9. (2013) 11 SCC 122.
2
SP, J
CRP_1609_2024
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
CIVIL REVISION PETITION No.1609 of 2024
Between:
Swathi Srivatsav.
...Petitioner
vs.
Rohit Kumar.
... Respondent
JUDGMENT PRONOUNCED ON: 21.06.2024
THE HON'BLE SRI JUSTICE SUJOY PAUL
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? :
3. Whether His Lordship wishes to
see the fair copy of the Judgment? :
___________________
SUJOY PAUL, J
3
SP, J
CRP_1609_2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
CIVIL REVISION PETITION No.1609 of 2024
ORDER:
The petitioner-wife filed an anti suit perpetual injunction for
restraining the respondent-husband from proceeding with the
dissolution of marriage before the Family Court at Wellington, New
Zealand. The petitioner-wife executed a Special Power of Attorney
dated 23.03.2022 authorizing her father to file plaint under Order
VII Rule 1 read with Section 26 of the Civil Procedure Code, 1905
(CPC). The said Original Suit (O.S) was not numbered and
registered by the Office of the Court below, but the same was
taken up as SR No.682 of 2024 pregnant with number of office
objections. The petitioner in order to satisfy the Court about the
objections argued the matter on office objections, but the Court
below by docket order dated 09.05.2024 decided to return the said
suit. This docket order is subject matter of challenge in the
present Civil Revision Petition before this Court under Article 227
of the Constitution.
2. Shorn of unnecessary details, as pleaded the relevant facts
are that the petitioner and respondent solemnized their marriage
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as per Hindu rites and customs on 19.11.2019 at Gaya (Bihar).
The marriage was registered under provisions of Special Marriage
Act, 1954, at Hyderabad, Telangana, on 24.04.2019. The
respondent resided at New Zealand and due to matrimonial
discord between the petitioner and respondent, the petitioner
returned to India on 07.06.2020. The petitioner later got
admission in London in MBA International course and presently,
she is pursuing her education in London.
3. The petitioner filed application in M.C.No.348 of 2022 on the
file of the II Additional Family Court, Hyderabad under Section
125 of the Criminal Procedure Code, 1973 and DVC Act. In
addition, she also filed O.P.No.480 of 2024 under Section 9 of the
Hindu Marriage Act, 1955, on the file of Principal Family Judge,
Hyderabad, seeking restitution of conjugal rights. The other
proceedings were also filed by the petitioner under Sections 498-A,
307 and 406 of the Indian Penal Code, 1860 and Sections 4 and 6
of the Dowry Prohibition Act, 1961. The said complaint was taken
on record by XVIII Additional Chief Metropolitan Magistrate at
Nampally, Hyderabad and accordingly, numbered as Crime
No.381 of 2020 and the same has been registered in C.C.No.7321
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CRP_1609_2024
of 2021 on the file XIII Additional Chief Metropolitan Magistrate,
Hyderabad. The respondent has also been contesting the said
proceedings.
4. The Office of the Court below raised the following objections
in Sr.No.682 of 2024: 1. SPA to be filed in "Original" as mentioned
in OP and the same has to be validated. 2. Suit to be filed in OP
format. 3. Address proof of description to be filed and jurisdiction
to be noted as per Sec.19 of HM Act, Jurisdiction para to be
mentioned correctly and form 8 to be filed. 4. Main OP, Vakalath,
Sec.13 petition and Rule 33 Affidavit to be signed by the petitioner
only and the same are to be duly affixed by the concerned
embassy seal. 5. Latest photograph of the petitioner and the GPA
holder are to be affixed on OP and duly attested by the petitioner.
6. ID proof of petitioner to be filed. 7. Explain how this Court is
having jurisdiction for the so called relief prayed by the petitioner.
8. Neat copy of OP to be filed by correcting objection No.1 and 2.
9. CF to be affixed on CC copies. 10. IA to be corrected as
petitioners and respondents respectively and neat copies to be
filed. 11. Rule 33 affidavit to be filed and computer cop to be filed.
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5. The plaint filed by the petitioner under Order VII Rule 1 read
with Section 26 of the CPC, shows that it is filed along with
Special Power of Attorney (SPA) dated 23.02.2022. The plaint is
signed by the counsel for the petitioner as well.
6. The petitioner was heard by the learned Court below on the
question of aforesaid defects pointed out by the Office of the Court
below. In turn, the impugned docket order dated 09.05.2024
came to be passed, whereby, the copy of petition and Vakalath
were returned to the petitioner by upholding certain objections.
Contentions of the petitioner:-
7. Sri R.A. Achuthanand, learned counsel for the petitioner
submits that the Court below has erred in holding that the suit
can be numbered as Original Petition (O.P.) only and it cannot be
registered as Original Suit (O.S.). Criticizing this finding, it is
contended that the Court below has failed to see the nature of the
suit i.e., the suit for anti suit perpetual injunction. As per Section
7 (1) (d) of the Family Courts Act, 1984, a suit/proceedings of this
nature arising out of marital relationship needs to be registered as
O.S. and not O.P. The Court below has erroneously relied upon
the judgment in the case of V. Pranav Kumar vs. V. Sulekha @
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Payal 1 and also erred in relying on the Circular issued by High
Court in ROC.No.1643/SO/1995 dated 16.06.2004. The said
circular is general in nature cannot override the specific
provisions of the Family Courts Act, 1984.
8. Furthermore, it is urged that O.P. can only be filed under the
provisions of the Hindu Marriage Act, 1955. The said Act deals
with dissolution of marriage on different grounds, restitution and
maintenance. As per the Hindu Marriage Act, 1955, there is no
provision for filing suit under the said Act. By placing reliance on
the judgment in the case of V. Pranav Kumar (cited supra), it was
argued that para 8 clearly lays down that the applications filed
before the Family Courts are not be treated as suit. The said
judgment cannot be made applicable for the present dispute in
view of Section 7 (1) (d) of the Family Courts Act, 1984, which has
not been considered and hence, the said judgment is
distinguishable.
9. It is further urged that the procedural technicalities should
not come in the way of dispensation of justice. The Court below
has taken a hyper technical view and did not consider Rules 32
2005 SCC OnLine AP 447
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and 33 of the Andhra Pradesh Civil Rules of Practice, in proper
perspective. The view taken by the Court below runs contrary to
the principles laid down by this Court in the case of Ruhina Khan
vs. Abdur Rahman Khan 2.
10. The petitioner in this petition in great detail dealt with each
of the objection raised by the Office of the Court below.
11. Heard at length.
12. Since the petitioner's suit is returned without putting the
other side to notice, this Court deems it proper to hear the
petitioner and decide the matter at this stage only.
Findings:-
13. The Court below has decided to return the brief mainly for
twin reasons namely: (1) the petitioner filed petition in F.C.O.S
and Section people returned the petition by stating that it must be
filed as O.P. and not as O.S, in view of judgment in the case of V.
Pranav Kumar (cited supra) and the Circular issued by High
Court in ROC.No.1643/SO/1995 dated 16.06.2004. The petition
deserves to be returned because the Court cannot go beyond the
2018 (5) ALD 461
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circular issued by the High Court. (2) the judgment of this Court
in the case of Ruhina Khan (cited supra) is relating to property
whereas, the instant suit is relating to matrimonial dispute and it
is personal in nature. Therefore, the petitioner has to file petitions
under Rules 32 and 33 of the Civil Rules of Practice and since
there is no endorsement of the counsel on the record on re-
submission of the petitioner, the petition deserves to be returned.
14. Before dealing with the contentions of the petitioner, it is
apposite to reproduce Rules 32 and 33 of the Civil Rules of
Practice, which are as under:
Rule 32:- Rule 33:-
Party appearing by Agent: Signing or verification by Agent:
(1) When a party appears by any agent, If any proceeding, which under any
other than an advocate, the agent shall, provision of law or these rules, is
before making of or doing any required to be signed or verified by a
appearance, application, or act, in or to party, is signed or verified by any person
the court, file in court the power of on his behalf, a written authority in this
attorney, or written authority, thereunto behalf signed by the party shall be filed in
authorising him or a properly court, together with an affidavit verifying
authenticated copy thereof together with the signature of the party, and stating the
an affidavit that the said authority still reason of his inability to sign or verify the
subsisting, or, in the case of an agent proceeding, and stating the means of
carrying on a trade or business on behalf knowledge or the facts set out in the
of a party, without a written authority, proceeding of the person signing or
an affidavit stating the residence of his verifying the same and that such person
principal, the trade or business carried is a recognised agent of the party as
on by the agent on his behalf and the defined by Order III, Rule 2 of the Code
connection of the same with the subject- and is duly authorised and competent so
matter of the suit, and that no other to do.
agent is expressly authorised to make or
do such appearance, application, or act.
(2) The Judge may thereupon record in
writing that the agent is permitted to
appear and act on behalf of the party;
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and unless and until the said permission
is granted, no appearance, application,
or act, of the agent shall be recognised
by the Court.
[Emphasis Supplied]
15. At the cost of repetition, it is noteworthy that the wife has
signed Special Power of Attorney in favour of her father and plaint
is signed by an advocate. Rules 32 and 33 became subject matter
of consideration in various matters. After taking stock of series of
cases decided on this aspect, in the case of Ruhina Khan (cited
supra), it was held as under:
"Rule 32 deals with an agent other than an Advocate
appearing for a party while Rule 33 deals only with signing or
verification of proceedings by an agent. Rule 32 (1) makes it
clear that it has application to a situation where a party
appears by an agent other than an Advocate. Therefore, the
said agent would appear for the party in all respects and not
merely for the purpose of signing and verifying pleadings.
When the party appears through an agent other than an
Advocate, the agent is required, before he appears or acts in
the Court or makes an application thereto, to file the power of
attorney or written authority or a property authenticated copy
thereof along with an affidavit that the said authority, whereby
he is empowered to do so, is still subsisting.
Rule 33 deals with an agent signing and verifying on behalf of
his principal and states that if any proceeding, which under
any provision of law or the Civil Rules of Practice, is required
to be signed or verified by a party but is signed or verified by
the agent, a written authority in his behalf signed by the
party shall be filed in Court, together with an affidavit
verifying the signature of the party and stating the reason of
his inability to sign or verify the proceeding and stating the
means of knowledge of the facts set out in the proceeding of
the person signing or verifying the same and that such person
is a recognized agent of the party, as defined by Order 3 Rule
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2 C.P.C., and is duly authorized and competent to do so. [Para
12]
Para No.30:-
30. In effect, the Division Bench held that where the GPA
holder merely signs the pleadings in a case where the
principal is represented by a legal practitioner it is sufficient if
Court satisfies itself that he has the authority to sign such
pleadings and the filing of an affidavit is not mandatory. Any
defect in this regard can also be cured at a later stage by
convincing the Court that such GPA holder was duly
authorized by the principal to represent him in the matter.
However, in a case where the GPA holder not only signs the
pleadings but also adduces evidence and advances arguments
on behalf of the principal, he would necessarily have to file an
affidavit of the principal affirming that he authorized the GPA
holder to do so."
[Emphasis Supplied]
16. A plain reading of the aforesaid findings makes it clear that
the point involved is no more res integra, Justice P. V. Sanjay
Kumar (as his Lordship then was) poignantly held that Rule 32
deals with agent other than advocate appearing for party,
whereas, Rule 33 operates regarding signing or verification of
proceedings by an Agent. The impugned order of Court below in
this regard is reproduced hereunder in toto for ready reference:
"SR No.682/2024 Dt:09-5-2024
The petitioner filed the petition under FCOS and the Section
people returned the petition that the petition shall be filed
under OP, but not under OS and the petitioner vehemently
argued before the Court that the suit is filed for anti-suit
injunction and he relied upon Padmini Hindupur Vs.,
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Abhijit S Bellur, it was held that the petitioner herein filed
the petition before Maryland Avenue, USA that her husband
residing in that place and she filed anti-suit injunction in
favour of her and restrain the defendant and his agents not to
move any divorce petition, but in the present case, the petition
is filed for anti-suit injunction to be granted against the
defendant restraining the defendant from proceeding and
further participating in the proceedings in appeal FAM-2023-
095-005695 initiated by him in the Hon'ble Family Court,
Wellington, New Zealand.
The Court relied upon V. Pranav Kumar Vs., V. Sulekha @
Payal and others, it was held that any family matters should
be numbered as OP, but not suits and the Hon'ble High Court
issued a circular in ROC.No.1643/SO/1995 dated 16.06.2004
directing the Family Court to number all the cases filed before
them as OP and collect fixed Court fee of Rs.10/-, under such
circumstances this petition is returned. This Court cannot go
beyond the Hon'ble High Court circular.
In Dasam Vijay Rama Rao Vs., M. Sai Sri, held that "The
term power "power of attorney" indicates a power or authority
under seal. A "power of attorney" is an instrument in writing
by which one person, as principal, appoints another as his
agent and confers upon him the authority to perform certain
specified acts or kinds of acts on behalf of the principal. "Power
of attorney" is not contract, but is merely document evidencing
to third parties existence of agency relationship and powers of
agent. In Corpus Juris Secondum it is stated as; Authority may
be conferred on an agent by a written appointment, and if the
writing is formal the authority is said to be conferred by letter of
attorney and the agent is, an attorney in fact."
The counsel for the petitioner also argued that there is no
necessity to file Rule 33 petition in GPA and the petitioner
relied upon Ruhina Khan and another Vs., Abdur Rahman
Khan (died) per LRs and others, it was held Rule 32 and
Rule 33 requirements of the nature of the procedure
prescribed by discussed in Order 3 Rule 1, 2, 6, 14 and 15 of
CPC in the said citation the facts are that it was relied to
property whereas the present petition is filed before Family
Court and it is a personal. Therefore, the petitioner has to file
Rule 33 petition along with Rule 32 petition and there is no
endorsement of the counsel on the record on re-submission of
the petition. The petition copy, vakalath and Section 13 of
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Family Court Act not signed by the principal petitioner. From
the above reasons, this petition is returned."
[Emphasis Supplied]
17. The aforesaid order shows that the Court below has not
taken pains to deal with the contention of the petitioner based on
Section 7 (1) (d) of the Family Courts Act, 1984, the said provision
reads as under:
"Section 7:- Jurisdiction.--
(1) Subject to the other provisions of this Act, a Family Court
shall--
(a) have and exercise all the jurisdiction exercisable by any
district court or any subordinate civil court under any law for
the time being in force in respect of suits and proceedings of
the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction
under such law, to be a district court or, as the case may be,
such subordinate civil court for the area to which the
jurisdiction of the Family Court extends.
Explanation.-- The suits and proceedings referred to in this
sub-section are suits and proceedings of the following nature,
namely:--
(a)...
(b)...
(c)...
(d) a suit or proceeding for an order or injunction in
circumstance arising out of a marital relationship;
..." [Emphasis Supplied]
18. This Court finds substance in the argument of the learned
counsel for the petitioner that no administrative
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instruction/circular issued by the High Court can override or
supersede the provisions of the Family Courts Act, 1984. Even
otherwise, the Circular dated 16.06.2004, in my opinion, cannot
be pressed into service in a suit of this nature, which is covered
under Section 7 (1) (d) of the Family Courts Act, 1984.
19. This Court is constrained to observe that the impugned
docket order dated 09.05.2024 is too sketchy, too short and too
cryptic in nature. In 2nd para of the said order, reliance is placed
on the judgment in the case of Dasam Vijay Rama Rao vs. M. Sai
Sri 3, but no finding is given as to how that judgment is applicable
and can be utilized for returning the plaint of the petitioner.
Further, in the last para of the impugned order, the Court below
relied on the judgment of Ruhina Khan (cited supra) and tried to
distinguish it for twin reasons. Firstly, in case of Ruhina Khan
(cited supra), the matter was relating to property, whereas in the
instant, the suit is relating to matrimonial dispute, which is
personal. Pertinently, the subject matter of interpretation before
this Court in Ruhina Khan (cited supra) was about interpretation
of Rules 32 and 33 of the Civil Rules of Practice. A conjoint
2015 ALD 4 757
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reading of both Rules makes it clear that they are not confined to
property dispute only. The Court below has failed to take note of
the word "OR" (highlighted hereinabove) in Rule 32 aforesaid.
The Rule 32 is in two parts. The first part before the use of word
"OR" cannot be confined to property disputes only. The Court
below has miserably failed to see aforesaid aspect and
mechanically came to hold that the judgment in the case of
Ruhina Khan (cited supra) cannot be pressed into service because
in that case it was a property dispute, whereas, the present case is
relating to matrimonial dispute. The view taken by the Court
below runs contrary to Rule 32. The opening sentence of Rule 33
has not been minutely considered by the Court below while
passing the impugned order. The words "if any proceeding" and
"under any provision of law" are significant and makes the
provision very wide. Thus, by no stretch of imagination, Rules 32
and 33 can be said to be confined to land or property dispute only.
20. Secondly, the Court below in the last para of the impugned
order opined that the petitioner has to file Rule 33 petition along
with petition under Rule 32. This Court in Ruhina Khan (cited
supra) made it crystal clear that the requirement to file petition
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under Rule 33 is not mandatory. Even if there exists a defect in
this regard, the same can be cured at later stage by the petitioner.
The said findings of a binding judgment has escaped notice of the
Court below while passing the impugned order.
21. The procedural law is made to achieve justice and not to
defeat it. In the opinion of this Court, the Court below has not
taken the view to advance the cause of justice and indeed
permitted itself to be strangulated by hyper technicalities. This is
settled law that all the rules of procedure are the handmaid of
justice. The Apex Court in Sangram Singh v. Election Tribunal,
Kotah 4 opined that a code of procedure must be regarded as
such. It is "procedure", something designed to facilitate justice
and further its ends: not a penal enactment for punishment and
penalties; not a thing designed to trip people up. Too technical a
construction of sections that leaves no room for reasonable
elasticity of interpretation should therefore be guarded against.
The Apex Court in Sushil Kumar Sen v. State of Bihar 5 opined
that the mortality of justice at the hands of law troubles a judge's
conscience and points an angry interrogation at the law reformer.
AIR 1955 SC 425
5 (1975) 1 SCC 774
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The processual law so dominates in certain systems as to
overpower substantive rights and substantial justice. The
humanist rule that procedure should be the handmaid, not the
mistress, of legal justice compels consideration of vesting a
residuary power in judges to act ex debito justitiae where the tragic
sequel otherwise would be wholly inequitable. Justice is the goal
of jurisprudence-processual, as much as substantive. In, State of
Punjab v. Shamlal Murari 6, the Apex Court held that processual
law is not to be a tyrant but a servant, not an obstruction but an
aid to justice. Procedural prescriptions are the handmaid and not
the mistress, a lubricant, not a resistant in the administration of
justice. In, Ghanshyam Dass v. Dominion of India 7, the Apex
Court reiterated the need for interpreting a part of the adjective
law dealing with procedure alone in such a manner as to sub-
serve and advance the cause of justice rather than to defeat it as
all the laws of procedure are based on this principle.
In, Kailash v. Nanhku 8, the Apex Court held that the provisions of
Civil Procedure Code or any other procedural enactment ought not to
(1976) 1 SCC 719
7 (1984) 3 SCC 46
8 (2005) 4 SCC 480
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be construed in a manner which would leave the Court helpless to
meet extraordinary situations in the ends of justice.
22. In view of foregoing discussion, it can be safely held that
neither the judgment in the case of V. Pranav Kumar (cited supra)
nor the Circular of High Court in ROC.No.1643/SO/1995 dated
16.06.2004 comes in the way of the Court below to register the
matter as O.S. In, Kailash case (cited supra), it was made crystal
clear by the Supreme Court that the provisions of the Civil
Procedure Code or any other procedural enactment should not be
a barrier to make the Courts helpless to meet extraordinary
situations. As per Section 7 (1) (d) of the Family Courts Act, 1984,
the matter could be certainly registered as O.S. (suit) and there
was no legal impediment before the Court below to do the same.
This is trite that as per the concept of "dominion paramountcy" no
executive instruction like Circular of High Court can prevail over
the statutes or provisions of an Act {see Pradip Kumar Maity v.
Chinmoy Kumar Bhunia 9}.
23. In nutshell, in the opinion of this Court, the plaint was
returned to the petitioner in a mechanical way. Neither his
(2013) 11 SCC 122
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arguments were considered in extenso, nor findings were given in
detail dealing with each of the objections raised by the Office. This
Court hopes that henceforth, the suits will not be returned in
such mechanical way.
24. In view of foregoing discussion, this Court is unable to give
its stamp of approval to the impugned order dated 09.05.2024.
Resultantly, the said order is set aside and the Court below is
directed to register the O.S. and proceed with the matter in
accordance with the law. It is made clear that this Court has not
expressed any opinion on maintainability of suit and on other
objections regarding which no decision was taken by the Court
below while passing the order dated 09.05.2024.
25. In the result, the Civil Revision Petition is allowed to the
extent indicated above. There shall be no order as to costs.
Miscellaneous applications, if any, pending shall stand closed.
_______________________
JUSTICE SUJOY PAUL
Date: 21.06.2024
Note:
LR marked.
B/o-GVR
