Uttarakhand High Court
AO/201/2021 on 9 November, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE NARAYAN SINGH DHANIK
APPEAL FROM ORDER NO. 201 OF 2021
09TH NOVEMBER, 2021
BETWEEN:
Yogesh Singh .....Appellant.
And
Sangeeta Chauhan ....Respondent.
Counsel for the Appellant : Mr. Aditya Singh.
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)
The appellant has challenged the legality of the
order, dated 19.12.2020, passed by the learned Family Court,
Haridwar, whereby the learned Family Court has dismissed
the appellant's application for restoring the divorce suit.
2. Briefly, the facts of the case are that on
17.09.2015, the appellant-husband, Mr. Yogesh Singh, had
filed a divorce suit under Section 13 of the Hindu Marriage Act
against the respondent-wife, Ms. Sangeeta Chauhan. By
order dated 18.09.2018, the issues were framed by the
learned Family Court. On 18.09.2017, the appellant had
submitted his affidavit which was treated as examination-in-
chief. Therefore, he was directed to appear for cross-
examination on 06.10.2017. However, the appellant did not
appear for cross-examination on two occasions, namely on
19.01.2018 and 24.04.2018. On 30.05.2018, the matter was
adjourned for 13.07.2018. On 13.07.2018, since the
appellant did not appear before the Court, the learned Family
Court dismissed the case for non-prosecution.
3. Aggrieved by the said order dated 13.07.2018,
initially, the appellant filed an appeal before this Court.
However, by order dated 03.12.2020, a learned Coordinate
Bench directed the appellant to file a restoration application
before the learned Family Court. Consequently, the said
application was filed. However, by the impugned order dated
19.12.2020, the said application has been dismissed by the
learned Family Court. Hence, this appeal against the order
dated 19.12.2020.
4. Mr. Aditya Singh, the learned counsel for the
appellant has raised the following contentions before this
Court:-
Firstly, the learned Family Court is unjustified in
claiming that the appellant has sought numerous
adjournments. In fact, the appellant has sought adjournment
only on four occasions, namely on 28.06.2017, 27.07.2017,
19.01.2018, and 24.04.2018.
Secondly, on 13.07.2018, there were two cases of
the appellant pending before the learned Family Court: (i)
The case filed by the respondent under Section 125 of the
Code of Criminal Procedure; (ii) the divorce suit filed by the
appellant. While the former case was taken up in the morning
session, the latter case was taken up in the afternoon
session. According to the learned counsel, the appellant was
present before the learned Family Court in the morning
session. However, while he was in the Court he was informed
that his mother fell ill. Therefore, he could not attend the
divorce suit in the afternoon session.
Thirdly, the reasoning given by the learned Family
Court that the appellant has not paid the amount under
Section 24 of the Hindu Marriage Act, and since he has not
even bothered to pay the cost imposed by the Court in the
divorce suit, the appellant is not entitled to have his divorce
suit restored to its original number. According to the learned
counsel, merely because the amount of expenses has not
been paid by the appellant, he cannot be non-suited.
Moreover, according to the learned counsel, the appellant has
been paying the amount of expenses to the respondent.
Therefore, according to the learned counsel, the impugned
order dated 19.12.2020 deserves to be set-aside by this
Court.
5. Heard the learned counsel for the appellant,
examined the order-sheets of the learned Family Court, as
submitted by the appellant, and perused the impugned order.
6. Admittedly, the divorce suit was filed on
17.09.2015. After framing of the issues on 11.08.2017, and
after the submission of the affidavit by the appellant, on
18.09.2017, the case was listed repeatedly for cross-
examination of the appellant. Admittedly, on 19.01.2018,
since the appellant was absent, he was imposed with the cost
of Rs.250/- and the last opportunity to the appellant to
subject himself for cross-examination was given by the
learned Family Court on the said date. Despite the fact that
the last opportunity was given, inspite of the fact that the
cost had been imposed, again on 24.04.2018, the appellant
was absent from the Court. Moreover, the cost imposed was
not even paid by him before the Court.
7. Although, the learned counsel for the appellant,
submits that the appellant has paid the amount of expenses
to the respondent from 2015 to December, 2017, but no
evidence on this point has been submitted by the appellant
before the learned Family Court, or even before this Court so
far.
8. The appellant has taken a curious stand which is
self-contradictory. For, in his application for restoration, he
claims that on 13.07.2018 when he left his house, he was
informed that his mother has suddenly fallen ill. He returned
to his home, and took his mother to a Doctor. On the other
hand, the learned counsel for the appellant has argued that,
indeed, the appellant was available in the Court in the
morning session, and it is only prior to the afternoon session
that he was informed, in the Court, that his mother has fallen
ill. Therefore, he was unable to attend the proceedings in the
divorce suit in the afternoon session. These two facts cannot
stand together. For, in the first statement, the appellant
claims that he could not even reach the Court, yet in the
second statement, it has been argued that the appellant
reached the Court, and appeared in the proceedings under
Section 125 of Cr.P.C. in the morning session. Both these
statements are self-contradictory.
9. Furthermore, according to the impugned order
dated 19.12.2020, the appellant had not filed any medical
certificate to establish the fact that his mother had, indeed,
fallen ill on 13.07.2018. Therefore, the learned Family Court
is justified in concluding that in absence of any medical
certificate establishing the fact that appellant's mother had
fallen ill on 13.07.2018, the said defence cannot be accepted.
10. A bare perusal of the impugned order dated
19.12.2020 clearly reveals that the learned Family Court has
relied on the fact that even the amount of expenses has not
been paid, and even the cost has not been paid, in order to
draw two conclusions: firstly, the divorce suit was filed in the
year 2015, and continued to be dragged for three years, and
the fact that the appellant refused to comply with the orders
of the Court clearly reveals the divorce proceeding is nothing
but a means of harassing the respondent-wife. Secondly,
such a person who does not comply with the orders of the
Court certainly does not deserve any sympathy from the
Courts. A person who shows no respect to the orders of the
Court cannot expect the Court to show patience with him as a
litigant. It is, indeed, an old saying that "those who take to
the sword shall perish by the sword".
11. The conduct of the appellant clearly shows that he
tends to make statements, such as that his mother had fallen
ill on 13.07.2018 without any evidentiary basis. Moreover,
although a statement has been made by the learned counsel
for the appellant that the appellant has paid the amount of
expenses, no evidence on this point has been submitted
before this Court. Thus, the appellant seems to be in the
habit of making such statements without any evidentiary
basis. A litigant who tries to take the Court out for a ride by
making such baseless statements does not deserve any
mercy from the Court.
12. For the reasons stated above, this Court does not
find any merit in this appeal. It is, hereby, dismissed.
(RAGHVENDRA SINGH CHAUHAN, C.J.)
(N.S. DHANIK, J.)
Dated: 09th November, 2021
NISHANT
