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tortured_aathma (none)     17 September 2010

delaying tactics by wife - fined DELHI HC

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: September 08, 2008

Date of Order : October 16, 2008

CM(M) 1146/2007 16.10.2008

Sujata Aggarwal ...Petitioner

Through: Mr. Manu Nayar with

Mr. Hameed S. Shaikh, Advs.

Versus

Ravi Shankar Agarwal ...Respondent Through: Mr. Sunil Mittal and

Mr. V.S. Pandey, Adv.

JUSTICE SHIV NARAYAN DHINGRA

 

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not ? Yes.

3. Whether judgment should be reported in Digest ? Yes.

 

JUDGMENT:

1. By this order, I shall dispose of this petition preferred by the wife against the orders dated 3rd March, 2007 and 23rd March, 2007 passed by learned ADJ.

2. The case was at the stage of wife's evidence. Wife had to file an affidavit in her examination-in-chief, as per directions of the Court, within 3 days of 21st November, 2006. She did not file the affidavit. Thereafter, again directions were given on 3.3.07 to the wife to file her affidavit within one week. The affidavit was still not filed. On 23rd March, 2007 when the case was fixed for evidence, a proxy counsel appeared and moved an application for adjournment and Court noticed the conduct of petitioner in not filing affidavit and not appearing in the Court. When objection was raised by the husband's counsel, proxy counsel for the wife told the Court that affidavit shall  be filed within half an hour and after half an hour an affidavit was produced, but copy of the same was still not given to the husband's side saying that the same was not ready. The wife was not there for her cross examination. Looking at the entire conduct of the wife that she was not appearing in the Court and even the previous cost imposed by the Court was not paid, the husband's counsel opposed the application for adjournment. The adjournment was sought by the proxy counsel on the ground that regular counsel could not come as his father was ill.The Court observed that it was the respondent who was to appear in the Court for her cross examination and she had been repeatedly avoiding to appear in the Court. Since there were no grounds given for her non-appearance, her defence was struck off by the Court.

3. The order dated 3rd March, 2007 is in respect of disposal of the application moved on behalf of the wife under Order 16 Rule 1 CPC, Order 18 Rule 3(a) CPC and Order 17 Rule 2 CPC whereby she wanted to summon the records of other Courts and to summon the witnesses who had made statements in other Courts and she wanted that parents of the husband, the Chartered Accountant of the husband should also be summoned in the Court as defence witnesses.

4. The Trial Court found that the case was fixed for respondent's evidence on 29th December, 2005. Thereafter, no respondent witness was ever present in the Court. Respondent did not examine even herself in her defence and only moved different applications. When the Court gave directions for wife to appear and examine her witnesses on 14th November, 2006, instead of examining herself she moved 4 applications. Those applications were dismissed with costs vide order dated 21st November, 2006. On next date when the matter was fixed for respondent's evidence and directions were given to file affidavit within 3 days, instead of appearing, she got moved 2 more applications.

5. On next date of hearing, the costs was not paid and the respondent/wife also did not appear. Another application under Section 151 CPC was moved for her exemption from cross examination. The Court found that the respondent/wife was only indulging in dilatory tactics. It was also observed that only 3 adjournments can be granted to a party for evidence and respondent was not entitled to any further adjournment. But the Court still gave one more opportunity.

6. The respondent/wife in her application had taken a plea that she was suffering from tuberculosis of Urinal track  and related gynecological problems due to which she was unable to bear any kind of stress and was unable to stand and move out of the house as her blood pressure shoots up and because of these health conditions she was not able to come to the Court. She should therefore be allowed to examine her other witnesses and she should be exempted from examining herself first. The husband denied that she was suffering from any disease as stated by her and stated that she had been seen moving around in shopping centres. The medical certificate filed by her only showed that she was under treatment since 25th May, 2006. The Trial Court found that although the respondent did not file her affidavit by way of evidence in the Court, but she filed several affidavits supporting various applications moved by her. That showed that she had been coming to the Court and executing other affidavits.Even her plea that she was not able to hold urine for more than 10 minutes, was not supported by her medical certificate. The medical certificate filed showed that she was undergoing treatment of Pyrexia of unknown origin.

7. The Trial Court also observed that her claim that she was not able to visit the Court stood belied from her repeated visits to the Court for filing affidavits supporting applications. The number of applications moved and number of affidavits filed by her showed that her plea of being not able to come to the Court was false. The Court also found that if she was not in a position to stand or move, as claimed by her, she would not have been able to come to Court even for moving various other applications. She made several applications on various dates running into numerous pages and with each application an affidavit was there. Thus, the Court dismissed the application of the wife under Order 18 Rule 3(a) with costs of Rs.2,500/- However, the Trial Court still gave the adjournment despite finding that the respondent was guilty of delaying the proceedings, imposing further costs of Rs.5,000/-. It was also made clear to the respondent that she would appear on next date of hearing and would also pay the entire costs including costs imposed on 3rd March failing which her defence would be struck off.

8. In order to consider the challenge to these orders, the Court will have to look at the conduct of the petitioner/wife and see whether her prayer had been sincere or she had been taking the Court for a ride because she had enough money power, on the basis of which she has been assailing every order of the lower Court before High Court.

9. The wife herein is facing a Divorce petition filed by the husband. The Divorce petition was filed in 1998 and appearance was put by her counsel on 15th January, 1999. A perusal of record of Trial Court shows that thereafter the effort of the wife had been to see to it that this case does not  proceed further. One leg of the wife had been in the High Court and almost every order passed by the leaned ADJ was challenged before this Court.

10. This Court in an earlier petition no. CM(M) 1742/2004 filed by the wife made following observations:- ?In the meanwhile, it appears that the respondent/husband has been under cross examination for the last three years and as many as 25 days of hearing have taken place. There has to be a finality to the cross examination of the respondent and it cannot be go on interminably. Consequently, other than the cross examination relating to the documents mentioned in Item Nos. 1 to 9 on pages 21 and 22, the cross examination of the respondent must be concluded positively on the next date of hearing, that is,23rd December, 2004?

11. Above order of this Court and the orders passed by Trial Court right from the start of case show the intentions of the respondent.

12. A perusal of the order sheets of the Trial Court would show that every kind of excuse available on the earth had been put forward for seeking adjournments and all tactics had been adopted to delay the proceedings. The issues in the case were framed on 1st June, 2000. The Court could record statement of the husband in examination-in-chief only on 30th January, 2001.Thereafter, the cross examination of husband was concluded on 22.11.2005 only,after this Court passed above stated order. In between respondent or her counsel did not appear in the Court on 27th August, 2001 even to receive the alimony paid by the husband. On 11th February, 2002, counsel for the respondent wanted the proceedings to be stayed on the ground that he had preferred a revision before the High Court, despite the fact that there was no stay granted. The Trial Court still adjourned the case for cross examination of the petitioner. On next date, on 20th March, 2002, none appeared for the respondent/wife neither his counsel appeared. The Court still did not proceed ex parte and re-listed the matter.

13. On 4th April, 2002, an adjournment was sought on the ground of her ailment. Several adjournments were sought on the ground that the matter may be settled. However, whenever the matter was fixed for cross examination of husband, instead of cross examining him the counsel for the wife had moved an application and sought adjournment on one or the other ground. Even when he cross examined, the cross examination was made in prolix manner to make it linger on. The counsel also sought adjournments on his personal grounds, sometime his brother-in-law was ailing, sometime he had to attend the school of his child, sometime on the ground that a relative had expired. The respondent had all along been not appearing in Court on one or the other ground.

14. The petitioner had filed number of petitions and appeals in this Court right from the beginning. Every petition filed in this Court was accompanied by the affidavits of the petitioner. Number of petitions along with affidavits filed by the petitioner as gathered from the record of this case are CM(M)1742/2004, CM(M)14/2007, CM(A)5724/07, CM(A)10747/07, RFA 230/07, CM(M)14428/07, CM(M)997/07 C.R.No.397/01 and CM(M)969/06.

15. It is evidently clear from the entire proceedings that the effort of the petitioner had been to see that divorce petition filed by husband does not proceed. The mandate of the legislature is that proceeding under Hindu Marriage Act should come to an end within six months.

16. The ground on which husband sought divorce is desertion. The petitioner/wife had an option to lead her evidence to show that she had not deserted and the fault lied on the side of the husband. Instead of leading evidence, appearing in the Court she had just seen to it that the case does not proceed.

17. The Supreme Court in M.R. Tyagi vs. Sri Devi Sahai Gautam Civil Appeal No. 3241/2006 decided on 2.8.2006 made following observations in respect of grant of repeated adjournments by Courts:

?............ at the same time we must impress upon the Courts that its approach, however liberal, must be in consonance with the interest of justice and fair to both the parties. Misplaced sympathy in favour of any of the parties results in injustice to the other party. The courts have the solemn duty to maintain a judicial balance. We must deprecate such irresponsible approach of Courts granting numerous and unnecessary adjournments in the strongest terms. The frequent grant of unnecessary adjournments has come in for very serious public criticism. It is not surprising that frequent adjournments are unnecessarily sought, but what is surprising is that Courts generously grant such adjournments, regardless of the fact that it results in delayed disposal of cases, involves loss of public time, increases the financial burden of the litigants, and tarnishes the image of the judiciary. It is high time Courts stop granting unnecessary adjournments. The High Courts must take serious note of adjournments freely granted, even if unnecessary, and as a follow up action call upon the judicial officers concerned, in appropriate cases, to justify the numerous and unnecessary adjournments granted.?

18. It is noteworthy that on her ground of illness while she sought adjournments, she did not move an application that she be examined on commission. Her plea that she was not in a position to come to the Court because she had urinary problem had been rightly disbelieved by Trial Court. The Trial Court also rightly struck off her defence on the ground that she was unwilling to appear in Court and unwilling to lead evidence.

19. I find that this petition is a frivolous petition and is liable to be dismissed with exemplary costs. The petition is dismissed with costs of Rs.50,000/-.

 

October 16, 2008

SHIV NARAYAN DHINGRA J.



 1 Replies

Tajobsindia (Senior Partner )     17 September 2010

@ Author


1. In complete posting (knowledge sharing) by you !


2. The judgment has effect on cases only for Delhi and subordinate courts hat also single bench onece and may be used for persuasive pleadings (reasoning point of view of a side) for other STATES in very restricted sense !


3. Your posting is of 2008 (old) and the below one is latest i.e.of 2010 which is still incomplete saga of this lady till date (read brush up in Courts of Law) however helping you as author to join the missing puzzle !


CRL. M.C. 1920/2010                

 IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

CRL. M.C. 1920/2010 
Decided on 15.07.2010

IN THE MATTER OF :
 

SUJATA AGGARWAL                                  ..... Petitioner
Through: Mr. Hameed S. Shaikh, Advocate
 

Versus

RAVI SHANKAR AGGARWAL            ..... Respondent
        Through: Mr. V.S. Pandey, Advocate
 

CORAM 
* HON'BLE MS.JUSTICE HIMA KOHLI

    1.  Whether Reporters of Local papers may be allowed to see the Judgment?  No                  
    2.  To be referred to the Reporter or not?        No
    3.  Whether the judgment should be reported in the Digest?    No        
 

HIMA KOHLI, J. (Oral) 

1.    The present petition is filed by the petitioner praying  inter alia for quashing of orders dated 23.09.2008 and 24.02.2010 passed by the learned Metropolitan Magistrate  in a petition filed by the petitioner under  Section 125 of the Cr.PC for maintenance.
 

2.    Vide order dated 23.09.2008, the application filed by the petitioner in September, 2008 praying inter alia for summoning of witnesses was dismissed, while granting liberty to the petitioner to lead evidence by way of affidavit.   Pertinently,  till date the petitioner has not taken any step to assail the  aforesaid  order  before a superior court.  Instead, trial in  the  matter is stated to have been completed  some months ago and as per the counsel for the respondent, it is listed for orders today. 


3.
    By the second order dated 24.02.2010, the request of the counsel for the petitioner for staying the proceedings pending before the Metropolitan Magistrate on the ground that  proceedings in the  connected case filed by the daughter of the petitioner were stayed by the High Court vide order dated 22.02.2010 passed in Crl.M.C. No.1323/2009, was declined on the ground that there was no stay granted by the High Court in respect of the present proceeding and that the same was the main case.   


4.
    Vide order dated 18.03.2008,  learned Metropolitan Magistrate, while deciding the application of the petitioner seeking interim maintenance under Section 125 of the Cr.PC, had directed the respondent to pay a sum of Rs.20,000/-  per month  to the petitioner from the date of filing of the application till the disposal of the petition.     Aggrieved by the  interim maintenance fixed under the  aforesaid order, the petitioner  sought enhancement of the amount and preferred a revision petition, registered as Crl.M.C. 2725/2008.  The said revision petition was dismissed by this Court vide order dated 21.08.2008, concurring  with  the order of the learned Metropolitan Magistrate.  The aforesaid order  was  taken in appeal by the petitioner to the Supreme Court, by preferring a Petition for Special Leave to Appeal (Crl) No. 2161/2009, which was disposed of  vide order dated 13.04.2009 with the following observations:


“Delay condoned.
Heard learned counsel for the parties. 
The trial Court in an application filed by the wife for
maintenance under Section 125 of the Code of
Criminal Procedure, 1973, by way of interim
measure, had directed the husband to pay
Rs.20,000/- per month.
Petitioner, being dissatisfied with the said interim
order, challenged the said order before the High
Court for enhancement of maintenance. The High
Court by the impugned order has dismissed the same.
We are informed that the said maintenance petition
under Section 125 of the Code is still pending before the concerned court.
In this view of the matter, we are not inclined to
exercise our discretion under Article 136 of the
Constitution of India.  The Special Leave Petition is
dismissed.    However, the concerned court, before
which the petition under Section 125 of the Cr.PC, is
pending, is directed to dispose off the said petition in
accordance with law within a period of three months
from the date of receipt/production of a copy of this
order, after affording an opportunity to both the
parties to lead evidence in the matter.”



5.
    Counsel for the respondent submits that the petitioner is trying to adopt dilatory tactics in the present case and despite the aforesaid specific orders of the Supreme Court,  directing that the petition  under Section 125 Cr.PC be disposed of within a period of three months from the date of receipt of the order after affording an opportunity to both the parties to lead evidence in the matter, the petitioner has chosen to prefer the present petition  and sought  an  adjournment on the last date of hearing before the Metropolitan Magistrate, on the ground of non-availability of her counsel.  Counsel for the petitioner states today that as the Supreme Court had granted liberty to both the parties to lead evidence in the matter, the  5 petitioner is entitled  to be granted the relief  as  sought by her  in  the application filed for producing additional evidence.  


6.
    The records reflect  that on the date  when  the  order of the Supreme Court was passed, i.e., on 13.04.2009, no such application of the petitioner for adducing any additional evidence was pending. Nor did the petitioner file such an application on a later date.  Hence, the question of the Metropolitan Magistrate granting such an opportunity  to her does not arise.  It does not lie in the mouth of the  petitioner to allege today that an application for summoning of additional witnesses filed by her in September, 2008 and rejected vide order dated 23.09.2008 can be  assailed in the present proceedings  after  a lapse of  almost two years.  Even otherwise, counsel for the respondent states that  the stage of evidence is over, arguments have already been addressed in the matter and the same is listed for orders today.


7.
    As far as the order dated 24.02.2010 is concerned, admittedly, the present petition under Section 125 of the Cr.PC was preferred by the petitioner prior in time to a petition filed by her daughter for the same relief of maintenance.  Counsel for the petitioner also concedes that the present case was treated as the main case.   In the light of the order of the Supreme Court, the petitioner cannot be heard to state that the learned Metropolitan Magistrate ought to have waited for Crl.M.C. No. 1323/2009 to be decided first  merely because the proceedings in the said petition filed by the daughter of the petitioner were stayed.  The present petition is nothing but an attempt on the part of the petitioner to try and delay the pending proceedings under Section 125 Cr.PC.  Knowing very well that there is an order of the Supreme Court dated 13.04.2009 calling upon the learned Metropolitan Magistrate to dispose of the pending proceedings within three months, the petitioner has intentionally not mentioned passing of the said order  in the present petition.  It is counsel for the respondent, who has handed over a copy of the said order in the Court.  Leave alone the matter being decided in three months from 13.04.2009, even after over one year, it is stated to be pending and listed for orders today.   For the aforesaid reasons, this Court is not inclined to interfere in the impugned orders dated 23.09.2008 and 24.02.2010. On merits also  the impugned orders do not suffer from any  irregularity, perversity or arbitrariness  to  deserve interference.  The petition is dismissed with costs of Rs.5,000/- payable to the other side within one week.
 


(HIMA KOHLI)                     
JUDGE  

JULY    15, 2010 
rkb


Souce link:
https://lobis.nic.in/dhc/HK/judgement/20-07-2010/HK15072010CRLMM19202010.pdf

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