Banani Majumdar vs Chanchal Majumdar

Anil K. Sen, J

This Rule issued by a learned single Judge of this Court on a revisional application has been referred to the Division Bench at the stage of final hearing because of an objection that such an application could not be heard and disposed of by a learned single Judge in view of the Rule of this Court The two orders challenged In the revisional application are dated April 24, 1979 and May 16 1979 passed by the learned District Judge, 24 Parganas In Matrimonial Suit No. 13 of 1979 Instituted en a petition u/s 13 of the Hindu Marriage Act. Since the suit Itself was incapable of valuation the revisional application too has been declared to be Incapable of valuation. Under the Rules of this Court a learned single Judge can entertain revisional applications against orders of judges other than Munsifs upto value of Rs. 5.000/- and as such this revisional application could not have been moved before a learned single Judge. Unfortunately the attention of the learned single Judge was obviously not drawn to this fact when the Rule was obtained. An application which is Incapable of valuation cannot be said to be of the value upto Rs 5,000/ so as to make it entertainable by a learned single Judge. Such an application Is obviously entertainable by a Division Bench under the Rule of this Court.

Such being the technical defect we have treated the revisional application as a contested one since presented before us by condoning the delay In the matter of such presentation, The apposite party is already appearing and we propose to dispose of the same on its merits.

Of the two orders challenged, by the first one the learned District Judge entertained an application under Order 23 Rule 1 (3) of the CPC filed by the plaintiff husband and recorded a direction to the effect following "The learned Advocate for the respondent submits that he has no objection to such withdrawal provided his client Is paid before such withdrawal a sum of Rs. 500/- as costs. This la agreed to by the learned Advocate for the petioner. The petitioner is therefore directed to pay the respondent a sum of Rs. 500/- as costs by the 30th May, 1979."

The respondent wife, who was not present In Court when the above order was passed, filed an application u/s 151 of the Code on March 30, 1979. In this application she raised an objection to the effect that the consent on her part that was recorded In the order dated April 24, 1979 was not on her authority but that it was so given by her father upon a misapprehension of facts. In substance and particularly in view of the background of the litigation she proposed to oppose the prayer made on behalf of the plaintiff bus-band on merits. By the second order the learned District Judge had dismissed this application of the respondent wife. In doing so the learned District Judge appears to have taken the view that the lawyer for the respondent being himself authorised on the vakalatnama to enter into compromise on her behalf, the consent given by the lawyer cannot be treated as unauthorised. The learned District Judge further held that when the respondent wife had deputed her father to act on her behalf she must be taken to have authorised her father to give the consent as given by him on April 24,1979. The learned District Judge, in rejecting the application filed on behalf of the respondent wife, expressed himself In such terms that he is going to allow the plaintiff''s application under Order 23 Rule 1 (3) though the formal order in that regard was yet to be recorded. A sum of Rs. 500/- having already been deposited by the plaintiff husband an order under Order 23 Rule 1(3) of the Cede would now follow as a matter of course in view of the orders Impugned In the present revisional application.

These ere the orders now being challenged before us In this revisional application. Having heard the learned Advocates we ere, however, unable to sustain the orders pasted by the learned District Judge. Had the learned District Judge considered the facts In the background end had he exercised his own discretion we are sure would never have allowed an application under Order 23 Rule 1 (3) of the Code as presented by the plaintiff husband in the present case.

In our view, the two conditions which are required to be fulfilled before an application under Order 23 Rule 1 (3) can be allowed? namely 1) that the application Itself should be bonafide and 2) that either of the two grounds specified in clauses (a) and (b) to sub-rule (3) of Rule 1 of Order 23 has been made out in support of the prayer. Consent or concession on the part of the defendant may relieve the Court of the strict obligation of recording the grounds en which the leave is being granted. But nonetheless only on fulfilment of conditions as aforesaid the exercise of judicial discretion in the matter of disposal of an application under order 23 Rule 1 (3) of the Code can be made, So that In a given case where such conditions are lacking even if the defendant has given her consent at one stage, It cannot be said that the said defendant cannot withdraw the consent so given before the application is finally disposed of. It is not necessary for us to consider on merits the contention of the learned Advocate for the respondent wife that there was no real consent given on her behalf. Even if we assume that such a consent was given at one stage, it Is evident on her subsequent application that she wanted to withdrew the consent and oppose the application on Its merits In the particular facts and circumstances of this case we do not thing that there Is either any legal bar to allow her to do so or allowing such a prayer would constitute any Improper exercise of jurisdiction by the Court.

In the present case neither of the conditions on the fulfilment whereof such an application could be entertained can be said to have been fulfilled by the plaintiff husband. In the first place, it Is quite evident from the records of the suit itself that the application Itself was not a bonafide one. The plaintiff husband instituted the above suit for dissolution of his marriage with the respondent by a decree of divorce on two fold grounds namely, 1) the respondent is guilty of cruelty to her husband and 2) that she was suffering from an incurable disease in the consequence of which a very bad and obnoxious smell comes from her mouth for which nobody could come close to her. In filing this suit the plaintiff, as It now appears, wilfully and maliciously gave the address of the wife respondent as the address of his own native home at Barulpur though it Is nowhere alleged that she was residing there at the husband''s place at the material time. Furthermore in creating jurisdiction at Alipore he pleaded again falsely and maliciously that the marriage had taken place at the very same address, namely his own native house though he has subsequently admitted that they were married within the original jurisdiction of this Court. Obviously an attempt was made on the part of the plaintiff, husband to obtain an exparte decree by fraudulent suppression of summons upon the respondent wife. Unfortunately for the plaintiff the respondent having come to know of the proceeding entered appearance and the entire endeavour on the part of the plaintiff husband misfired.

At this stage on March 6, 197a the plaintiff husband filed an application under Order 23 Rule 1(3) of the Code for permission to withdraw the suit with leave to file a fresh suit on the same cause of action on the plea that due to Inadvertance and oversight some material flaws have been detected In the said petition and It la there-fare necessary at present that the suit should be withdrawn with leave to file fresh suit on the same cause of action. ''The particulars of the flaws were Indicated In the application. It Is too apparent that the whole objection was to back out of the suit since the plaintiff husband failed in his real endeavour to obtain an exparte decree. This application was rejected by the learned District Judge and. In our view, rightly when he observed that no such permission could be granted en the grounds thus pleaded in the application.

In that background the plaintiff husband came with a fresh application under Order 23 Rule 1(3) of the Code out of which the present Rule arises. In this application such leave was sought for in view of certain, alleged specific defects in the plaint originally filed. The defects alleged were 1) incorrect address of the plaintiff and the respondent, 2) incorrect statement as to the place of solemnization of marriage made for invoking the jurisdiction of the Court 3) incorrect statement as to the date of solemnization of marriage 4) failure to over the date of cause of action and 5) omission to invoke the jurisdiction of the Court by pleading the place where the parties last resided together as husband and wife. This is the application which the respondent proposes to oppose. In the background of the facts indicated hereinbefore this application like the previous one is an attempt on the part of the plaintiff to'' back out of the suit only because he had otherwise failed to obtain an exparte decree by fraudulent supression of summons. What is claimed to be inadvertant omission or incorrectness are apparently deliberate misstatement in the plaint originally filed only to assist the plaintiff in getting an exparte decree by suppression of summons. Such being the position there could be no doubt in the mind of the Court that there was no bonafides in the application itself and the application was liable to be thrown out if not on merits certainly on that ground.

Even on merits we are unable to hold that any of the defects specified in this application can be considered to be good ground for obtaining the necessary permission contemplated by Order 23 Rule 1(3) of the Code. Most of the defects pointed out were deliberate misstatements but even then those are wholly inconsequential when judged in the light of requirement of Order 23 Rule 1(3) of the Code. Mr. Biswas appearing on behalf of the plaintiff husband had strongly contended before us that at least on the point of jurisdiction the suit would have failed because the marriage was not solemnized within the jurisdiction of the Court and there is no pleading that the parties last resided within the said jurisdiction. We are, however, unable to accept this contention of Mr. Biswas for the simple reason that could not have been a ground for failure of the suit. At the worst the plaint would have been returned for presentation before the appropriate court if an amendment of the plaint itself in this regard was not made by the plaintiff. Such being the position, even on merits the application fails to make out any ground contemplated by Order 23 Rule 1(3) of the Code on which any permission could have been granted. The mere fact that at one stage the lawyer for the respondent wife upon instruction from the father of the respondent had consented to the grant of such permission we are unable to hold that the respondent must be bound by that consent in the manner suggested by the learned District Judge so that when no order granting permission has yet been made and when the respondent forthwith came an application for leave to withdraw her consent and oppose the application that should have been refused.

In the result, the revisional application succeeds and the Rule is made absolute. The impugned orders are set aside since, in our view, the learned District Judge was acting upon mis apprehension that in law the respondent wife being bound by the consent he has to allow the application and in doing so obviously the learned District Judge was acting in irregular exercise of his jurisdiction. The impugned orders being set aside we dismiss the plaintiffs application under Order 23 Rule 1(3) of the Code.

There will be no order for costs.

B.C. Chakrabarti, J.

I agree