Uttarakhand High Court
Between vs Smt. Bharti Agrawal" And on 27 December, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 27TH DAY OF DECEMBER, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
APPEAL FROM ORDER No. 276 of 2021
BETWEEN:
Smt. Bharti Agrawal. ..........Appellant
(By Mr. Piyush Garg, Advocate)
AND:
Vishal Agrawal. ...Respondent
(By Mr. Vikas Bahuguna, Advocate)
JUDGMENT
Appellant and respondent were married as
per Hindu Rites on 26.06.2004. On 10.11.2004,
learned Family Court passed a decree of divorce
based on a compromise entered into between them.
2. On 02.08.2021, respondent (Husband) filed
a Money Recovery Suit against the appellant,
contending that a sum of ` 20,00,000/- was advanced
by him to the appellant during subsistence of the
marriage, with the understanding that same will be
returned by the appellant after 15 years; since the
amount has not been returned upon expiry of 15
years, therefore, a decree be passed directing the
appellant to return the amount with 9% interest. The
said suit was registered as Misc. Case No. 375 of
2021 "Vishal Agrawal Vs. Smt. Bharti Agrawal" and,
without notice to the appellant, plaint of the suit was
rejected by learned Civil Judge (Senior Division),
Dehradun vide order dated 01.09.2021 by holding
that suit is not maintainable before a Civil Court and
only the Family Court has jurisdiction to try such case
under Section 7 (c) of Family Courts Act, 1984.
3. Respondent, thereafter, filed an application,
seeking review of the order dated 01.09.2021, and
learned Civil Judge (Senior Division), Dehradun has
reviewed his earlier order and directed for return of
the plaint, vide order dated 04.10.2021. This Appeal
is directed against the order dated 04.10.2021 passed
in respondent's review application.
4. Learned counsel for the appellant submits
that the order dated 04.10.2021, whereby learned
trial Court has reviewed its earlier order dated
01.09.2021, was passed without notice to the
appellant.
5. Per contra, learned counsel for the
respondent submits that earlier order dated
01.09.2021, which was subsequently reviewed, was
also passed without notice to the appellant, therefore,
there is no infirmity in the order impugned in this
Appeal.
6. This Court is not convinced by the
submission made on behalf of respondent. Upon
rejection of plaint vide order dated 01.09.2021, a
right was created in favour of appellant, who was
defendant in the suit, and such right could not have
been taken away from her without notice or
opportunity of hearing to her.
7. Even otherwise also, Order 47 Rule 4(2) of
Code of Civil Procedure, 1908 ordains that no
application, seeking review of an order shall be
granted without notice to the other side. In the
present case, the review application filed by the
plaintiff (respondent herein) was allowed without
notice to the defendant (appellant herein), therefore,
there has been a violation of express provision
contained in Order 47 Rule 4(2) of Code of Civil
Procedure, 1908, and the order impugned in this
Appeal is liable to be set aside.
8. On this short point alone, the Appeal from
Order is allowed and the impugned order dated
04.10.2021 passed by learned trial Court is set aside.
Misc. Case No. 98 of 2021 (Vishal Agrawal Vs. Smt.
Bharti Agrawal) shall stand restored to the file of
learned Civil Judge (Senior Division), who shall decide
the review application, in accordance with law, after
hearing the defendant in the suit.
9. Learned counsel for the appellant submits
that his client will enter appearance before the
learned Court below through her counsel, on or before
07.01.2022. This Court hopes & expects that learned
Court below shall decide the review application
expeditiously.
10. It shall be open to the parties to raise all
their contentions before learned Court below.
(MANOJ KUMAR TIWARI, J.)
Arpan
