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Court Name : Delhi High Court

Law Point: Delay in leading evidence a delaying tactics used by Wife in Divorce case.She was fined for Rs. 50,000/- and her defense is struck off

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of Reserve: September 08, 2008
Date of Order : October 16, 2008
CM(M) 1146/2007
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.
SHIV NARAYAN DHINGRA J.
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/-.
Sd./-
October 16, 2008 SHIV NARAYAN DHINGRA J.

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