Allowed

Krishan Kumar Saini v. Poonam

Punjab & Haryana HC11 Jul 2013FAO-M/44/2012

Case brief

AI extract

What is this about?

The Vishada High Court allowed this appeal against the dismissal of a divorce petition due to lack of evidence. The Court found the petitioner did not receive full opportunities to lead evidence and remanded the matter for proceeding with proper notice and witness summoning assistance.

What did the court decide?

The impugned judgment and decree are set aside. The matter is remanded to the trial court for granting more time, listing witnesses, and providing at least three effective opportunities for evidence.

Krishan Kumar Saini Vs Poonam — Matrimonial and Divorce | Punjab & Haryana HC (2013)

¶1

FAO No.M-44 of 2012 (O & M)

¶2

-1-

¶3

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

¶4

FAO No.M-44 of 2012 (O & M) Date of decision: 11.07.2013

Krishan Kumar Saini

.....Appellant

versus

Poonam

.... Respondent

CORAM : HON’BLE MR. JUSTICE S.S.SARON HON’BLE MR. JUSTICE S.P.BANGARH

¶11

Present: Mr.Manoj Makkar, Advocate for the appellant.

¶12

None for the respondent.

¶13

S.S. SARON, J.

¶14

Heard learned counsel for the appellant.

¶15

This appeal has been filed by the appellant against the judgment and decree dated 26.11.2011 passed by the learned Additional District Judge, Panipat whereby the petition of the appellant seeking dissolution of the marriage between the parties by a decree of divorce has been dismissed for failure of the appellant to lead evidence despite last opportunity having been granted.

¶16

Notice of the appeal was issued to the respondent.

¶17

Mr. Nishant Raj, Advocate had put in appearance for the respondent. The matter was referred to the Mediation and Conciliation Centre by this Court vide order dated 08.05.2012. The parties were directed to appear before the Mediation and Conciliation Centre on 09.07.2012. The appellant was present. However, the respondent did not appear. Accordingly, a fresh notice was issued to

¶18

FAO No.M-44 of 2012 (O & M)

¶19

-2-

¶20

her for 27.07.2012. On 27.07.2012, both the parties were present for mediation proceedings and the case was adjourned to 13.08.2012. It was then taken up on 13.08.2012 and on request of the parties, it was adjourned to 07.09.2012. On the said date again on the request of the parties, it was adjourned to 05.10.2012. On 05.10.2012 counsel for the respondent informed the Mediation Centre that the respondent was not in a position to attend the mediation proceedings and, therefore, he requested for an adjournment of the case. The case was adjourned to 30.10.2012. On 30.10.2012 none appeared for the respondent and the case was referred back to this Court for further proceedings as it appeared that the parties were not interested in mediation.

¶21

The case was taken up by this Court on 08.01.2013 and the Registry was asked to inform both the learned counsel and also requisitioned the trial Court records. The case was adjourned to 12.02.2013. As per office report both the counsel had been informed and the letter issued to them had been received back duly served. Mr. Manoj Makkar, Advocate appeared for the appellant. To wait for the respondent, the case was adjourned to 12.03.2013. On 12.03.2013, counsel for the appellant was present. However, none appeared for the respondent. The case was adjourned to 15.05.2013. It was ordered that intimation be sent to Mr.Nishant Raj, Advocate for the respondent and also to the respondentPoonam for the adjourned date. As per office report letter issued to Mr. Nishant Raj, Advocate as well as notice issued to the

¶22

FAO No.M-44 of 2012 (O & M)

¶23

-3-

¶24

respondent-Poonam for 15.05.2013 had been received back duly served. The case was not taken up on 15.05.2013 and it was adjourned for today. Today neither counsel for the respondent nor the respondent is present. The trial Court record has been received and we have perused the same.

¶25

As already noticed the petition had been dismissed for failure of the appellant to lead evidence. The petition seeking dissolution of the marriage was filed in the Court of learned District Judge, Rohtak on 26.09.2009. It was assigned to the Court of learned Additional District Judge, Rohtak. On the same date, notice of the petition was issued to the respondent for 07.10.2009. On 07.10.2009, Advocate for the respondent put in appearance and filed his power of attorney. For reconciliation proceedings, the case was adjourned to 27.10.2009. On the said date, learned counsel for the parties stated that there was no possibility of compromise between the parties and they had not turned up. The case was then adjourned to 25.11.2009 for filing the written statement. The written statement was not filed on the said date and the case was adjourned to 10.12.2009. Again written statement was not filed and the case was adjourned to 06.01.2010. On 06.01.2010 written statement and reply to the application under Section 26 of the Hindu Marriage Act, 1955 (Act-for short) was filed. An application under Section 24 of the Act was filed by the respondent. The case was adjourned to 04.02.2010 for filing reply to the application under Section 24 of the Act by the petitioner and for consideration. On 04.02.2010 on

¶26

FAO No.M-44 of 2012 (O & M)

¶27

-4-

¶28

request of the learned counsel for the petitioner, the case adjourned to 13.02.2010 for filing reply to the application under Section 24 of the Act and for consideration. On 13.02.2010 reply to the application under Section 24 of the Act was not filed and the case was adjourned to 23.02.2010 for filing reply and consideration of application under Section 24 of the Act. On the said date reply was not filed and the case was adjourned to 11.03.2010 for filing reply and for consideration of application under Section 24 of the Act. On the said date, reply to the application under Section 24 of the Act was filed. On request of the learned counsel for the petitioner the case was adjourned to 08.04.2010 for consideration on the said application. The case was taken up on 03.04.2010 as it was stated that the presiding officer would not be holding Court on 08.04.2010 so as to reach National Judicial Academy at Bhopal for training programme from 09.04.2010 to 16.04.2010. Accordingly, the case was adjourned to 01.05.2010 for the purpose already fixed. On 01.05.2010 learned counsel for the petitioner requested for an adjournment on the ground that he could not prepare the case and on his request the case was adjourned to 24.05.2010 for arguments on the applications under Sections 24 and 26 of the Act. On the said date on the joint request of counsel for the parties, the case was adjourned to 11.06.2010 for arguments. On 11.06.2010 arguments were heard on the applications under Sections 24 and 26 of the Act and both the applications were disposed of and the case was adjourned to 24.07.2010 for filing replication and for framing issues. On

¶29

FAO No.M-44 of 2012 (O & M)

¶30

-5-

¶31

24.07.2010 an application for exemption from producing the children on that day had been moved. The case was adjourned to 31.07.2010. On which date issues were framed; besides, the respondent had brought the children to the Court and the case was adjourned to 28.08.2010 for evidence of the appellant-petitioner. However, the case was taken up on 27.08.2010 as the Presiding Officer was availing casual leave on 28.08.2010 and it was adjourned to 21.09.2010 for the purpose already fixed. On the said date counsel for the respondent stated that the High Court had stayed proceedings in this case on a transfer petition filed by the respondent. Accordingly, the case was adjourned to 10.12.2010 for awaiting the outcome of the High Court order. On 10.12.2010 the case was adjourned to 06.01.2011 and then to 24.01.2011 for awaiting orders. Then the case was taken up on 20.01.2011 as the Presiding Officer was to go for special casual leave in lieu of training programme and the case was adjourned to 12.03.2011. On 12.03.2011, to await the order of the High Court, the case was adjourned to 16.03.2011. On 16.03.2011, it was adjourned to 29.03.2011 and then to 09.04.2011. The case was taken up on 05.04.2011 by the learned Additional District Judge, Rohtak and in view of the order passed by this Court on 28.02.2011, the case was withdrawn from the Court of learned Additional District Judge, Rohtak and transferred to the Court of learned Incharge District Judge, Panipat. The parties were directed to appear before transferee Court on 28.03.2011.

¶32

FAO No.M-44 of 2012 (O & M)

¶33

-6-

¶34

The case was then taken up by the learned Additional District Judge, Panipat on 15.04.2011 in pursuance of the order of transfer passed by this Court. No one appeared and notice was issued to the parties for 25.07.2011. On 25.07.2011 none appeared for the appellant-petitioner. However, counsel for the respondentPoonam was present. A Court notice was issued to the petitioner through his counsel at Rohtak and another notice to the petitioner was issued for 04.08.2011. On 04.08.2011, petitioner appeared in person with his counsel and power of attorney was filed. Service was accordingly complete and the case was adjourned for further proceedings to 29.08.2011. On 29.08.2011, it was observed that the presence had been completed and the case was adjourned to 08.11.2011 for evidence of the petitioner at his own responsibility. It was observed that since the matter was very old, it was being made clear that two opportunities each would be granted to each side. The parties were, therefore, advised to remain present with their respective evidence. The copies of the affidavits of the witnesses were ordered to be supplied to the opposite party well in advance so that cross-examination may be done on the same day. On 08.11.2011, no evidence of the petitioner was present. As per order dated 29.08.2011, it was observed that two opportunities were allowed to the petitioner to conclude evidence. The case was adjourned to 26.11.2011 for the entire evidence of the petitioner and last opportunity was granted. On 26.11.2011, no evidence of the petitioner was present despite last opportunity. Accordingly, the

¶35

FAO No.M-44 of 2012 (O & M)

¶36

-7-

¶37

evidence of the petitioner was closed by order and by separate judgment of even date, the petition was dismissed for want of evidence in terms of Order 17 Rule 3 of the Code of Civil Procedure (CPC-for short).

¶38

A perusal of the above records of the proceedings shows that the two opportunities were granted to the parties to conclude their evidence and the case has been dismissed holding it to be an old case. It may, however, be noticed that the proceedings in the case were initially being adjourned for filing reply and consideration of application under Section 24 of the Act. Thereafter it was being adjourned on account of the transfer application filed by the respondent in which proceedings of the trial Court had been stayed. After transfer of the case, the appellant had only been given two opportunities for the evidence of the petitioner in the Court at Panipat and the evidence was closed and the judgment pronounced in terms of Order 17 Rule 3 CPC.

¶39

In the facts and circumstances we feel that no effective opportunity was granted to the petitioner-appellant to lead his evidence and more time was liable to be granted to the appellantpetitioner to lead evidence. The petitioner has not been granted full opportunity to lead his evidence. He was not granted assistance of the Court to summon witnesses. Besides, now the respondent is not appearing to contest the proceedings.

¶40

Therefore, the appeal is allowed and the impugned judgment and decree dated 26.11.2011 are set aside and the matter

¶41

FAO No.M-44 of 2012 (O & M)

¶42

-8-

¶43

is remanded back to the Court of learned Additional District Judge, Panipat for granting more time to the parties to lead their evidence.

¶44

The case shall be restored at its original number. Both the parties shall be granted at least three effective opportunities for producing evidence. They shall furnish a list of witnesses, diet money and process fee for summoning the witnesses through the agency of the Court.

¶45

The parties shall appear before the learned trial Court on

¶46

29.08.2013. In case, respondent does not appear she be served.

¶47

The trial Court record be also returned.

¶48

(S.S. SARON) JUDGE

¶49

(S.P. Bangarh) JUDGE

¶50

11.07.2013 A.Kaundal

Krishan Kumar Saini v. Poonam

Case brief

What is this about?

What did the court decide?

Krishan Kumar Saini v. Poonam

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Tejinder Singh Vs Jasbir Kaur

Tarsem Singh Vs State of Punjab

State of Punjab Vs Satish Kumar

State of Punjab Vs Jasvir Singh

Lakhvinder Singh Vs Sukhvinder Kaur

Ram Krishan Vs Geeta Rani