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CASE NO.:

Appeal (civil) 2660 of 2002

PETITIONER:

VIKAS AGGARWAL

Vs.

RESPONDENT:

ANUBHA

DATE OF JUDGMENT: 12/04/2002

BENCH:

D.P. Mohapatra & Brijesh Kumar

JUDGMENT:

BRIJESH KUMAR, J.

Leave granted.

Heard learned counsel for the parties. This appeal has

been preferred against the judgment and order dated

18.10.2000 passed by Delhi High Court dismissing the appeal

challenging the order by which appellant's defence was struck

of in the proceeding, suit No.1966 of 1999 pending in Delhi

High Court on the Original side.

The appellant and the respondent were married on

11.05.1999. Thereafter they went to USA. They do not seem

to have pulled on well so much so that the appellant filed a

divorce petition in America as early as on 22.7.1999. The

notice of the said proceedings was served on the respondent.

She however, left America and somehow managed to come

back to India. She filed a suit on 6.9.1999 in Delhi High Court

being Suit No.1966 of 1999 impleading the appellant Shri

Vikas Agarwal as defendant and praying that a decree be

passed declaring that the plaintiff is entitled to live separately,

for maintenance amounting to 1500 dollars (Rs.65,250/-)

expenses pendantalite etc. and for such other, further orders,

directions as the Court would deem fit and proper in the

circumstances of the case, so as to meet the ends of justice.

The learned Single Judge of Delhi High Court passed an

interim order on 5.11.1999 in the following terms:-

"For the present in the interest of justice, and

since no permanent prejudice is likely to be caused to

the Defendants if the hearing in divorce case pending in

the Superior Court, State of Connecticut, U.S.A. is

deferred for a short period, I restrain the Defendant

from proceeding further in the Superior Court, State at

Connecticut, U.S.A. for a period of thirty days from

today."

The appellant however, moved an application on

12.11.1999 for recall of the order dated 5.11.1999. The Court

was later on informed on 16.12.1999 that decree for divorce

had been passed at Connecticut U.S.A. The learned Single

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Judge, on 9.3.2000 passed an order, directing the defendant to

appear in person, under order 10 C.P.C. The defendant

preferred an appeal against the Order dated 9.3.2000 before the

Division Bench which was withdrawn with a statement that an

application will be moved before the learned Single Judge for

recall of the order. It will not be necessary to mention about

many other applications, which have been moved in that

connection from time to time. The fact remains that ultimately

by order dated 24.8.2000, the Court struck of the defence of

the appellant: The operative part of the order reads as under:-

"It is quite clear that despite several

opportunities granted to the defendant to appear

before this Court he has resolutely refused to do

so. The defence of defendant is therefore, struck

of."

An appeal preferred against the said order before the

Division Bench of the High Court has also been dismissed

which order has been impugned in the present appeal.

It appears that need to seek clarification from the

defendant-appellant arose when it came to the notice of the

learned Single Judge of Delhi High Court that on 23rd

November, 1999 the Court in America passed decree of

divorce despite the order of restraint against the defendant

passed on 5.11.1999. The Court seems to have doubts if the

order passed by it was truly communicated to the American

Court since there was no mention at all about that fact in the

order passed by the American Court. The appellant also moved

an application for seeking exemption from appearing in the

Court in Delhi, as he apprehended that on coming to India he

may be arrested in pursuance of the proceedings initiated

against him under Section 498-A of the Indian Penal Code. By

order dated July 3, 2000 the learned Single Judge took care of

the same and provided that the defendant would not be arrested

in pursuance to any complaint or pending FIR filed by the

plaintiff. The defendant was required to appear on August 24,

2000. He again failed to appear in the Court, instead an

affidavit of the Attorney of the appellant in America was filed

stating that he had brought the injunction order to the notice of

the American Court, but the Court had refused to enforce any

restraint order, as Indian Court had no jurisdiction over the

U.S. Court's proceedings. Such information, it is submitted on

behalf of Respondent, as furnished through affidavit also leads

to the inference that the interim order dated November 5, 1999

was not correctly placed at all before the American Court as

the Delhi High Court had not passed any order putting any

restraint on the American Court to proceed with the matter.

The restraint order was against the defendant, namely the

appellant before us. It is submitted on behalf of the Respondent

that the defendant-appellant should also have moved

appropriate application along with interim order before the

court in America. In this back ground, the learned Single Judge

ordered for presence of the defendant in Court under Order 10

CPC. On non-compliance of the said order, ultimately the

defence was struck of.

Shri Vikas Singh learned counsel appearing for the

appellant has vehemently urged that Order X CPC would not

be applicable at all and the order of the Delhi High Court in

that respect is invalid. Our attention has been brought to Order

X CPC which reads as under:-

Examination of parties by the Court.

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1. Ascertainment whether allegations in

pleadings are admitted or deniedAt the

first hearing of the suit the court shall

ascertain from each party or his pleader

whether he admits or denies such allegations

of fact as are made in the plaint or written

statement (if any) of the opposite party, and as

are not expressly or by necessary implication

admitted or denied by the party against whom

they are made. The court shall record such

admission and denials.

2. Oral examination of party, or companion

of party.-- (1) At the first hearing of the suit,

the court

(a) shall, with a view to elucidating matters in

controversy in the suit examine orally such

of the parties to the suit appearing in person

or present in the court, as it deems fit; and

(b) may orally examine any person, able to

answer any material question relating to the

suit, by whom any party appearing in

person or present in court or his pleader is

accompanied.

(2) At any subsequent hearing the court may

orally examine any party appearing in

person or present in court, or any person,

able to answer any material question relating

to the suit, by whom such party or his

pleader is accompanied.

(3) The court may, if it thinks fit, put in the

course of an examination under this rule

questions suggested by either party.}

3. Substance of examination to be written.

the substance of the examination shall be

reduced to writing by the Judge, and shall

form part of the record.

4. Consequence of refusal or inability of

pleader to answer.(1) Where the pleader

of any party who appears by a pleader or any

such person accompanying a pleader as is

referred to in Rule 2, refuses or is unable to

answer any material question relating to the

suit which the court is of opinion that the

party whom he represents ought to answer,

and is likely to be able to answer if

interrogated in person, the court may

postpone the hearing of the suit to a future

day and direct that such party shall appear in

person on such day.

(2) If such party fails without lawful excuse to

appear in person on the day so appointed, the

court may pronounce judgment against him, or

make such order in relation to the suit as it

thinks fit."

On the basis of the above provision, it is submitted that

a party can be examined under Order X CPC on the first

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hearing of the suit, but that stage has not yet reached in the

present case. It is submitted that first hearing of the suit would

not be any date before a date fixed for settlement of issues. In

that connection, he has placed reliance upon certain decisions

in which first date of hearing has been indicated in reference to

rent control disputes between landlord and tenant. The next

contention is that under Rule 4 of Order X a party may be

required to appear where the counsel or the person

accompanying the pleader refuses to or is unable to answer any

material question relating to the suit. In the present case, it is

submitted that the information sought was furnished to the

Court. There was no refusal on the part of the counsel or the

person accompanying the counsel, namely father of the

defendant appellant to answer the questions. Therefore, it was

not necessary to order for personal attendance of the defendant.

Yet another submission is that question in relation to which a

party is required to be present to be examined should be an

important or material question relating to the suit. It is

submitted that the defendant was not required to give

clarification to any such important or material question. It is

submitted that for the above three reasons the order is bad. Yet

another submission which has been made is that no order of

injunction could be passed against a foreign court in view of

the provisions contained under Section 41(a) & (b) of the

Specific Relief Act.

Shri Shanti Bhushan, learned Senior Counsel appearing

for the respondent submitted that the questions raised by the

learned counsel for the appellant are not relevant, since

undisputedly there is non-compliance of the order passed by

the Court requiring the defendant to be personally present in

the Court. It is submitted that the Section 41 (a) & (b) of the

Specific Relief Act would not bar passing of an order as passed

on 5.11.1999 by the learned Single Judge of Delhi High Court

since such a bar is in relation to the superior Courts i.e. to say

the Courts in India, it would not apply to Courts out side India

and next that the restraint order is against the party namely, the

defendant, who was restrained from proceedings in the matter

for a period of one month. (reliance has been placed on

1987(1) SCC 496 Oil and Natural Gas Commission Vs.

Western Company of North America). It has been held in

an appropriate case, it is open to pass a restraint order against a

party in proceedings pending in foreign courts. It is further

submitted that the learned Single Judge had passed the

injunction order on 5.11.1999 for a period of one month, but

the decree was granted on 23.11.1999. The defendant was

bound by the order and should not have taken any steps in

furtherance of the proceedings pending in American Court. On

the other hand, the decree of divorce shows that the decree was

sought and passed on agreement (no fault divorce) between the

parties which is described as fair and equitable. The

agreement is also stated to be attached with the decree. It is

also to be seen that columns meant for alimony etc. were left

blank. The defendant was restrained by the learned Single

Judge of Delhi High Court, at the instance of the wife, the

respondent, from further proceeding in the divorce case. It is

submitted that this itself shows that the divorce was far from

one on the basis of agreement. In this view of the matter,

learned counsel for the respondent submits that the Court

rightly felt need for personal appearance of the defendant for

clarification. The defendant failed to appear on one ground or

the other and lastly on the ground of apprehension of loosing

job in America.

This Court also gave time to the learned counsel for the

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appellant to find out in case it would be possible for him to

appear before the learned Single Judge of Delhi High Court.

The learned counsel has placed before the Court a letter

received from the appellant addressed to his counsel dated

March 7,2002 expressing his inability to visit India for another

6 to 9 months due to financial and job constraints. He further

informs that he is involved in many mission- critical projects.

Therefore, granting of leave, would also not be possible, to

him. It is also indicated that he has no property, no house, no

bank account, no job and no place to live in India. These facts

are hardly relevant for the purposes of present matter. We need

not go into the other facts and circumstances, which have been

placed by the learned counsel for the respondent to show the

manner in which, within two months of the marriage, the

appellant had filed "no fault divorce" in American Court and

obtained decree on agreement in the teeth of injunction order

dated 5.11.1999 passed by Delhi High Court and the appellant

having abandoned the plaintiff-respondent in America and the

difficulties with which she managed to return to India.

Shri Shanti Bhushan, learned senior counsel

appearing on behalf of the respondent submits that in the facts

and circumstances of the case as indicated above, the learned

Single Judge of the Delhi High Court was quite justified in

requiring the defendant-appellant to personally appear before

the Court for his clarification. It is further submitted that the

affidavit of the counsel for the appellant in America annexed

with the affidavit filed in the trial court was not enough to

clarify the position and the father of the appellant, as found by

the trial court, could not throw further light in the matter,

having not been present during the proceedings in America.

So far the question regarding first date of hearing is concerned,

it is too technical a ground to consider the matter like one in

hand. The decisions which have been relied upon relate to the

disputes between tenant and landlord and while interpreting the

term "first date", the provisions of the Rent Control Statutes

have also been taken into account. It is submitted that inherent

powers of the Court under Section 151 C.P.C. can always be

exercised to advance interests of justice and the technicalities

will have no place in such matters. In this connection a

reference has been made to a decision of this Court reported in

(1966) 3 S.C.R. 856 - M/s. Ram Chand and Sons Sugar

Mills Pvt. Ltd. Versus Kanhaya Lal Bhargava and others.

In this case also the defendant was required to attend the Court

to answer certain questions but flouted the order and did not

appear. Ultimately the defence was struck of. The contention

that inherent powers under Section 151 CPC could not be

exercised was repelled and it was held that there was nothing

in Order XXXIX of the Code which expressly or by necessary

implication precluded the exercise of inherent power of Court

under Section 151 CPC and it was open for the Court to pass a

suitable consequential order under Section 151 CPC as may be

necessary for ends of justice or to prevent the abuse of

process of Court. A reference has also been made to a decision

reported in 1962 Supp. (1) S.C.R. 450 - Manohar Lal

Chopra versus Rai Bahadur Rao Raja Seth Hiralal so as to

indicate the wide scope of Section 151 CPC where as per the

majority view, in the facts and circumstances of the case, it

was open to pass an injunction order under Section 151 CPC

where it may not be in conflict with any provision of Order

XXXIX of the Code or other provision of law. The submission

which has been advanced by the learned counsel for the

respondent is that in the present case the learned trial court was

totally justified in requiring the presence of the defendant and

on his failure to comply with that order the trial court rightly

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struck of defence which order would be perfectly justified in

view of inherent powers of the Court under Section 151 CPC

besides other powers vested in it.

We would like to observe that Order X CPC in an

enabling provision providing that the court at the first hearing

of the suit shall ascertain from each party about their

pleadings. It does not in any manner place any bar on the

powers of the court to seek clarification from any party in an

appropriate case, at any date earlier than one fixed for framing

of issues so as to advance the interest of justice. It would not

be in violation of Order X CPC or in conflict thereof.

Considering the facts and circumstances of the case we agree

with the submission made on behalf of the respondent and find

that the appeal lacks merit so as to call for any interference by

us under Article 136 of the Constitution.

In the result the appeal is dismissed with costs.

.J

(D.P. Mohapatra)

..J

(Brijesh Kumar)

April 12, 2002