ARCHANA GARG Vs. VINEET KUMAR JAIN
LAWS(UTN)-2012-11-1
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Decided on November 05,2012

ARCHANA GARG Appellant
VERSUS
Vineet Kumar Jain Respondents

JUDGEMENT

- (1.) Present petition has been filed by the petitioner for the following reliefs: "(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.11.2011 passed by the Principal Judge, Family Court, Dehradun in Suit No.238 of 2011 "Vineet Kumar Jain Vs. Archana Garg" pending before the Court of Principal Judge, Family Court, Dehradun directing the petitioner to serve the summons on witnesses by dasti process. (b) Issue a writ, order or direction, directing to allow application No.161 C of the petitioner and Principal Judge, Family Court, Dehradun be directed to summon witnesses Sri S.K. Nandal & Smt. Kirti Jain through Court, in Suit No.238 of 2008 "Vineet Kumar Jain Vs. Archana Garg". (c) Issue any other order or direction, which this Hon'ble High Court may deem fit and proper in the facts and circumstances of the case. (d) To award cost of the petition to the petitioner."
(2.) Brief facts of the case, as narrated in the writ petition, are that on 21.05.2008 respondent filed petition under Section 13 & 10 of the Hindu Marriage Act before the Principal Judge, Family Court, Dehradun, which was registered as Original Suit No.238 of 2008 "Vineet Kumar Jain Vs. Smt. Archana Garg". Petitioner appeared before the Family Court, Dehradun and filed her written statement and contended that petition filed by the respondent was misuse of process of law. On 06.01.2011, issues were framed in the aforesaid suit and thereafter, case was fixed for respondent's evidence. Thereafter, on 04.03.2011 additional issues were framed in the suit. 09.05.2011 was the first date fixed for petitioner's evidence. List of witness was submitted. It is alleged that two witnesses, namely, Sri S.K. Nandal & Smt. Kirti Jain, apart from other witnesses, are not under the control of the petitioner. Shri S.K. Nandal is working in the same office in which the respondent is working and Smt. Kirti Jain is the sister of the respondent. On 28.03.2011, when the respondent was being cross examined before the Court below, he leveled specific allegation against the petitioner that petitioner-Smt. Archana Jain was having illicit relationship with Shri S.K. Nandal, who is colleague of the respondent. Respondent stated that the petitioner used to misbehave with his sister-Smt. Kirti Jain and she used to abuse his sister. It is alleged that both the above-referred witnesses, namely, Shri S.K Nandal and Smt. Kirti Jain are crucial witnesses and their evidence would have great impact on the matter. Shri S.K. Nandal is presently posted at Assam and Smt. Kirti Jain is residing at Delhi and request was made to issue summons upon aforesaid witnesses at their respective places through Court. On 16.11.2011, the learned Presiding Officer, Principal Judge, Family Court, Dehradun, while fixing the matter for 24.11.2011, ordered the petitioner to serve the summons on witnesses by dasti process. Thereafter, petitioner filed application no.161 C before the Court below praying therein that the summons may be issued to the witnesses, through Court. The purpose for which the witnesses are sought to be summoned was also disclosed in that application and it was also stated in the application that the witnesses are under the control of respondent. On 31.03.2011, similar prayer was made by the respondent at the time of his evidence and the same Court, after recording a finding that since the witnesses are not under the control of respondent, the same be summoned, through Court. The respondent did not file any objections against application no.161 C and endorsed his contention/ objection on the application itself. On 21.11.2011, the Principal Judge, Family Court, Dehradun dismissed the application no.161 C. Aggrieved by the order dated 21.11.2011 passed by the Principal Judge, Family Court, Dehradun in Suit No.238 of 2011 "Vineet Kumar Jain Vs. Archana Garg", present writ petition has been filed by the petitioner.
(3.) Shri Neeraj Garg, learned counsel for the petitioner submitted that the order impugned is totally illegal and without jurisdiction and the Principal Judge, Family Court, Dehradun has exceeded his jurisdiction which was not vested in him under the law. He submitted that while passing the order impugned, the Principal Judge, Family Court, Dehradun completely violated the provisions of Order 16 Rule 1 of C.P.C., which are fully applicable to the proceedings of Family Court in view of Section 10 of the Family Court Act. He submitted that Order 16 Rule 1 (2 & 3) specifically states that a party can obtain summons for attendance of a witness stating the purpose for which he is proposed to be summoned. Sub Rule 3 states that the Court may, for the reasons to be recorded, permit a party to call by summoning through Court or otherwise any witness, whose name does not appear in list referred in Sub-Rule 1. A conjoint reading of the aforesaid provision clearly indicates that the witnesses are to be summoned on the application of a party through Court and not mandatorily by dasti process. He submitted that the Court below committed manifest error of law and jurisdiction in mandatorily directing the petitioner to obtain summon by the dasti process. He submitted that while passing the order impugned, the Court below committed manifest error of law and jurisdiction, inasmuch as, the witnesses are crucial witnesses with respect of allegation of adultery and cruelty against the petitioner and both are under the control of the respondent and are not under the control of petitioner. He submitted that finding of the Principal Judge, Family Court, Dehradun, while passing the order impugned, that if petitioner wants to get deposed the witnesses, she shall take steps only by dasti process is against the legislative intent and prevailing law. He submitted that such observations in a judicial order are not expected in such nature nor the same is intention of Code of Civil Procedure and General Rules Civil. He submitted that rejection of application on the ground that there is direction of this Court to decide the matter expeditiously is against intention and spirit of order of this Court, while expediting the proceedings. He submitted that this Court observed in its order that the case may be decided on merit, in accordance with law, and no such direction was issued by this Court to the Court below to act contrary to law, as such finding based on the order of this Court is absurd. He submitted that while passing the order impugned, learned Court below was obliged to act within its powers and jurisdiction and in exceeding the same, learned Court below committed gross illegality and material irregularity. He submitted that the order impugned is totally arbitrary and discriminatory in nature. Two different modes in the same proceedings are being adopted by the Court below with petitioner and respondent. He submitted that the action of the Court below is direct violation of Article 14 of the Constitution of India. He submitted that the Principal Judge, Family Court, Dehradun have not considered the aspect that petitioner is not having sufficient funds to go Assam and Delhi, as she had also to bear the expenses of the witnesses. She has no independent sources of income. Her children are dependent upon her. He submitted that the impugned order is wholly unjustified, illegal and deserves to be quashed. Learned counsel for the petitioner argued that responsibility cannot be imposed upon the party to keep his witnesses in attendance in Court at his own risk. In support of his submission, he relied upon paragraph no.4 of -Virendra Kumar Vs. Smt. Shanta Sharma, 1981 AIR(MP) 271 and paragraph no.7 of -Smt Dayawanti and others Vs. Kripa Ram, 1981 AIR(HP) 6.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.