Gauri Chanana vs Rajiv Chanana

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 17.1.2011, Annexure P15, passed by learned Additional District Judge, Panchkula, vide which evidence of petitioner has been closed.

I have heard learned Counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Additional District Judge.

It has been contended by learned Counsel for the petitioner that though some opportunities were taken by the petitioner to lead evidence and, however, the evidence could not be concluded as respondent-husband was not regular in making payment of maintenance pendente lite. It has also been contended that the case was fixed for evidence of petitioner-respondent for 10.1.2011, when two applications, Annexures P9 and P10 were moved on behalf of the petitioner and the case was adjourned for filing reply to the said applications as well as for evidence of the respondent-petitioner and, however, on 17.1.2011, evidence of petitioner was closed by learned trial Court without deciding the said applications. It has further been contended that if the said applications are allowed, then there may not be any need for the petitioner to lead evidence.

The fact that applications, Annexures P9 and P10 are pending has not been disputed by counsel for the respondent. He has also stated that he has already filed reply to the said applications on 17.1.2011. However, the same were not decided by learned trial Court before passing the impugned order closing evidence of the petitioner. It has further been contended that respondent is having no objection if petitioner is granted liberty to lead evidence by setting aside the impugned order and, however, as the main petition is pending since the year 2007, learned trial Court be directed to dispose of the same in a time bound manner.

Order dated 10.1.2011 passed by learned trial Court reads as under:

No respondent''s evidence is present despite availing several opportunities including last opportunity by the respondent. Learned Counsel for the petitioner prayed that the respondent''s evidence be closed by court order as today neither the respondent nor any evidence on behalf of the respondent is present. At this stage, learned Counsel for the respondent placed on record two applications, one application to allow the respondent to drop the preliminary objections No. 3 to 6 taken in the reply regarding impotency of the petitioner and another application to allow the prayer of the petitioner in the divorce petition without admission of any of the ground as alleged by the petitioner. Learned Counsel for the petitioner sought time for filing reply to the aforesaid applications. Now to come up on 17.1.2011 for filing replies to the aforesaid applications by the petitioner. Also learned Counsel for the respondent is directed to produce the respondent''s evidence on the date fixed.

Impugned order is dated 17.1.2011, operative part of which reads as under:

Keeping in view the averments made by respondent/applicant in the application moved on 10.1.2011, seeking permission to drop the preliminary objections no.3 to 6 taken in the reply/written statement regarding impotency of the petitioner and also the prayer made by respondent/applicant to allow the prayer of the petitioner in the divorce petition without admission of any of the ground as alleged by the petitioner and the prayer made by the respondent; applicant in the aforesaid second application dated 10.1.2011 that the marriage between the petitioner and the respondent be dissolved and that the permanent alimony for the petitioner and the children be awarded to the respondent, though in reply to the aforesaid application filed by the petitioner. It is contended that in view of the admission made by applicant/respondent in the aforesaid application, she is giving consent for divorce but at this stage, in my considered opinion, the only inference which can be drawn from the aforesaid applications moved by respondent is that the applicant/respondent is not interested to lead any further evidence. Further since as per the petitioner at this stage, the pleading as taken by respondent in the reply cannot be withdrawn when the case is at final stage. In view of the observations made earlier, I deem it appropriate only to close the respondent''s evidence by court order and to adjourn the case for final arguments. Also since the respondent''s evidence has been closed by court order, the application moved today by applicant/respondent for calling her to lead evidence after decision of applications filed on 10.1.2011 is not maintainable and in view of the application moved today by applicant/respondent for dismissal of the divorce petition on the ground of non-payment of maintenance, the petitioner is directed to file reply to the same on the next date of hearing, i.e., 22.1.2011 and arguments on the application shall also be heard alongwith arguments on the main case.

Admitted facts are that impugned order has been passed by learned trial Court without deciding applications, Annexures P9 and P10 filed on behalf of the petitioner-wife.

Hence, in view of these facts, the present revision petition is accepted. Impugned order is set aside. Learned trial Court is directed to decide applications Annexures P9 and P10, filed by petitioner, at the earliest, after hearing arguments on the same on the next date of hearing, which is stated to be 24.3.2011. Learned trial Court is also directed to grant two more opportunities to petitioner to lead and conclude her evidence and efforts be made to conclude the case within two months from the next date of hearing.

Disposed of accordingly.