THANKAPPAN NAIR Vs. OMANAYAMMA
LAWS(KER)-1967-12-6
HIGH COURT OF KERALA
Decided on December 22,1967

THANKAPPAN NAIR Appellant
VERSUS
OMANAYAMMA Respondents

JUDGEMENT

- (1.) A Nair wife filed an application under S. 5 of the travancore Nair Act 2 of 1100, praying for the dissolution of her marriage with her Nair husband, the ground being habitual cruelty and incompatibility of temperament. The wife also claimed Rs. 3000/-as compensation under S. 7 (3) (b)of the Act. The learned Munsiff passed an order declaring the marriage dissolved and awarding the wife Rs. 2000/-towards compensation. The appeal is filed by the husband against the decision of the learned Munsiff. In the enquiry the Munsiff was aided by delegates chosen in accordance with the rules prescribed. The rules which are relevant for the purpose of this appeal are the following: Rule 35. "after the whole evidence on either side has been taken and the parties have been heard as required by the law relating to the procedure of Civil Courts for the time being in force, the Munsiff shall proceed to charge the delegates summing up the evidence, specifying the points on which their verdict is required and laying down the law by which the delegates are to to be guided. " Rule 36. "the Munsiff shall record accurate notes of such charge and keep them along with the records of the case and the parties shall be entitled to get copies of the same at their cost. " Rule 40. "after the Munsiff has finished his charge the delegates may retire to consider their verdict; and, except with the leave of the Court, no person other than a delegate for that trial shall speak to or bold any communication with any delegate. " Rule. 41. "when the delegates have considered their verdict, the foreman shall inform the Munsiff what is their verdict, or what is the verdict of a majority. " Rule 42. "the Munsiff shall record the verdict in bis own hand. " The scope of interference by the High Court in appeals filed against the decision passed under S. 7 (2) (b) is stated in R. 46 and 47. They are: Rule 46. "if the verdict of the delegates or the majority of the delegates in any enquiry is contrary to law or any Rules having the force of law, is vitiated by fraud or material defect or mistake or is unsupported by any evidence, the High Court may set aside their verdict and order a fresh trial. " Rule 47. "except in cases mentioned in R. 46, no verdict of the delegates or of a majority of the delegates in any enquiry shall be set aside for any irregularity, error or omission, in the course of the enquiry except when such irregularity, error or omission has, in the opinion of the High Court, materially prejudiced the party or parties and occasioned a failure of justice. " The contention raised on behalf of the appellant was that the learned Munsiff has not recorded accurate notes of charge enjoined by R. 36 copies of which the appellant is entitled to get and this is a material defect sufficient to set aside the order. We are satisfied that the contention of the appellant's counsel has to succeed. By the failure of the Munsiff to conform to the requirements of R. 36 this Court is deprived of the opportunity to examine whether the enquiry is in any way vitiated and whether the summing up by the learned Munsiff has brought home to the delegates all the aspects of the matter on which they were expected to take a decision. What is found in the case is some questions framed by the learned Munsiff for which answers were supplied by the delegates. This is not the purport of R. 36 framed under the Act. The charge under R. 35 for which a record has to be kept under R. 36 is not merely heads of charges but includes the evidence analysed and collected by the Munsiff and placed before the delegates under each of the charges. The parties are entitled to get copies of the same under R. 36, to satisfy themselves whether there has been any defect or material irregularity in the summing up by the Munsiff. We are therefore satisfied that the order of the learned Munsiff cannot be sustained. We therefore set aside the same and remand the petition to the trial court for fresh trial and disposal. We make no order as to costs. The court fee paid for the appeal will be refunded to the appellant's advocate. Allowed.;


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