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Smt. Chandra Kala Vs. Padam Chand @ Padam Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 403/81
Judge
Reported in1982WLN(UC)18
AppellantSmt. Chandra Kala
RespondentPadam Chand @ Padam Singh
DispositionPetition dismissed
Cases ReferredKhanna v. Brig. F.J. Dhillon
Excerpt:
.....'case decided'--prayer for deciding application under section 24 without filing written statement--held, it does not amount to 'case decided' and order is not revisable under section 115.;the impugned order by which prayer, to decide the application under section 24 of the act first without filing of the written statement was refused and the direction of the learned district judge to the petitioner to file the written statement on september 19, 1981, does not amount to a 'case decided' within the meaning of section 115 cpc. in fact, no rights of the parties have been adjudicated by the impugned order.;i am of opinion that the order dated september 17, 1981 is not revisable under section 115 cpc.;revision dismissed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care..........the interlocutory order dated september 17, 1981 of the district judge, udaipur, by which the learned district judge, dismissed the petitioner's application dated september 17, 1981, in which it was prayed by her that her application under section 24 of the hindu marriage act (no. xxv of 1955) (for short 'the act' hereinafter) be disposed of first. the ground stated in the application was that without obtaining the litigation expenses, it is not possible to get the written statement prepared, for, fee has to be paid to the counsel for the purpose. the learned district judge by the impugned order while dismissing the application directed that the petitioner should file the written statement on september 19, 1981. the non-petitioner filed a petition under section 13 of the act in the.....
Judgment:

S.K. Mal Lodha, J.

1. This revision petition is directed against the interlocutory order dated September 17, 1981 of the District Judge, Udaipur, by which the learned District Judge, dismissed the petitioner's application dated September 17, 1981, in which it was prayed by her that her application under Section 24 of the Hindu Marriage Act (No. XXV of 1955) (for short 'the Act' hereinafter) be disposed of first. The ground stated in the application was that without obtaining the litigation expenses, it is not possible to get the written statement prepared, for, fee has to be paid to the counsel for the purpose. The learned District Judge by the impugned order while dismissing the application directed that the petitioner should file the written statement on September 19, 1981. The non-petitioner filed a petition under Section 13 of the Act in the Court of District Judge, Udaipur on February 9, 1981. After service of summons, on behalf of the non-petitioner, Shri J.L. Mehta, Advocate, filed power and took time for filing written statement. The next date fixed in the case was July 8, 1981. On that date, learned Counsel for the petitioner took time for filing a reply. Last adjournment was given for filing it. The case was adjourned to August 13, 1981. On August 13, 1981, learned Counsel for the petitioner stated that the petitioner has not been able to come to and therefore, time may be granted. Learned Counsel for the petitioner had no objection and, therefore, time was allowed. On September 17, 1981, the application as stated above, was moved. Aggrieved by the order dismissing the application and directing the petitioner to tile written statement on September 19, 1981, the petitioner has filed this revision.

2. Show cause notice was issued to the non-petitioner. In pursuance of it, Mr. K.C. Samdaria has appeared.

3. Learned Counsel for the non-petitioner has raised a preliminary objection regarding the maintainability of the revision. He contended that the impugned order does not amount to a 'case decided', within Section 115(1) CPC and, therefore, the order cannot be revised in exercise of the revisional powers of this Court. In support of his contention, learned Counsel for the non petitioner has invited my attention to Baldevdas v. Filmistan Distributors (India) Pvt. Ltd. : [1970]1SCR435 and Sada Ram v. Delhi Development Authority : AIR1974Delhi35 .

4. The objection regarding maintainability of the revision is resisted by Mr. N.P. Gupta, learned Counsel for the petitioner of the basis of Latika Gosh v. Nirmal Kumar : AIR1968Cal68 . He submits that the petitioner's right to get the application under Section 24 of the Act decided first before filing of the written statement has been denied and by the dismissal of the application dated 17th September, 1981, there has been adjudication of the rights and that, contends the learned Counsel, amounts to a 'case decided' under Section 115(1) CPC.

5. I have given my earnest consideration to the rival contentions of the learned Counsel for the parties.

6. A perusal of the order dated September 17, 1981 shows that the learned District Judge has decided the prayer of the petitioner for deciding the application under Section 24 of the Act first before filing of the written statement. The learned Judge in the impugned order has stated that in view of the proceedings that had t ken place on May 29, 1981, July 8, 1981 and 13th August, 1981, it appears that the petitioner wants to delay the filing of written statement on the ground that the application under Section 24 of the Act may be decided first. On the aforesaid three days, time was taken on behalf of the petitioner for filing of the reply to the main petition under Section 13 of Act. The record that has been received from the court of the learned District Judge does not contain any application under Section 24 of the Act. Mr. Samdaria states that no such application under Section 24 of the Act was filed by the petitioner. Mr. N.P. Gupta, however, showed the carbon copies of the application under Section 24 of the Act and the affidavit in support thereof. The fact remains that there is no application under Section 24 of the Act on the record which has been received by this Court in pursuance of the requisition. Be that as it may, the learned District Judge has permitted the petitioner to file the written statement on September 19, 1981 by the impugned order of refusal her prayer to decide the application under Section 24 of the Act first. After noticing Khanna v. Brig. F.J. Dhillon : [1964]4SCR409 their Lordships of the Supreme Court in Baldev Das's case : [1970]1SCR435 held that every order of the court in the course of a suit does not amount to a 'case decided' and that a case may be said to be decided, if the Court adjudicates for the purpose of the suit some right or obligation of the parties in controversy. It was further held that every order in the suit cannot be regarded as a case decided' within the meaning of Section 115 CPC. The aforesaid Supreme Court decision was referred to in Sada Ram's case : AIR1974Delhi35 . The learned Judge observed as under:

It may, therefore, be said that such an order should be on the merits of the case. The distinction, therefore, is between an order on the merits of the case and an order which does not affect the merits of the case The former can be said to affect the rights and obligations of the parties while the latter may be regarded as not doing so. The difference is, of course, often a difference of degree and may not be a difference of kind For, it could be difficult to imagine an order which does not prejudicially affect either of the parties at all. In an adversary proceeding, the parties are so much pitted against each other that very step, even if it is merely procedural is likely to affect either of the parties prejudicially though the amount of the prejudice may be small or big depending on the circumstances of each case. It cannot be said however, that every order which is passed by the Court during the trial of a suit amounts to a 'case decided' within the meaning of Section 115 Civil Procedure Code. The distinction has, therefore, to be maintained even though it has to be applied to the facts of each particular case and sometimes such application may be a matter of considerable argument.

7. The learned Judge further observed as follows:

In the present case, the impugned order has only allowed the defendant's to file a written statement. It thus does not affect the merits of the case at all.

8. Having considered the impugned order, I am unhesitatingly, of the opinion that the impugned order by which prayer, to decide the application under Section 24 of the Act first without filing of the written statement was refused and the direction of the learned District Judge to the petitioner to file the written statement on 19-9-1981, does not amount to a 'case decided' within the meaning of Section 115 CPC. In fact, no rights of the parties have been adjudicated by the impugned order. So far as Latika Ghosh's case : AIR1968Cal68 is concerned, it is of no avail to the learned Counsel for the petitioner what so ever. In that case two orders were assailed. In the first order, the learned trial judge directed the wife-petitioner to file her written statement before her application under Section 24 of the Hindu Marriage Act for alimony pendente lite would be heard. By the second order, the learned Judge rejected the petitioner's prayer for time to file written statement on the ground that the same could not be filed before the alimony matter was decided, and fixed a particular date for exparte hearing of the suit. While dealing with the aforesaid two orders, it was observed as under:

It is not open to the learned Judge under the statute, as it stands, or, under the relevant law, to impose a condition on an applicant for alimony that her said application will not be heard unless she files her written statement.

It was further observed as under:

The second order seems to be a dependent order and further, on the face of it, it is unjust, when it fixes the suit for exparte hearing after rejection of the petitioner's prayer for time to file the written statement in the circumstances of this case.

In view of Baldevda's case : [1970]1SCR435 and respectfully following Sada Ram's case : AIR1974Delhi35 I am of opinion that the order dated September 17, 1981 is not revisable under Section 115 GPC. The preliminary objection raised by the learned Counsel for the non-petitioner is upheld and the revision has to be dismissed as not maintainable.

9. The revision petition is, accordingly, dismissed summarily. The record be sent to the court of District Judge, Udaipur immediately along with a copy of this order.

10. An after word: Having considered the subsequent order sheets of the trial Court dated September 19, 1981, October 13, 1981 and November 2, 1981, it was noticed that on the last date, i.e., November 2, 1981, the learned District Judge directed the petitioner of file her written statement and the date fixed was December 19, 1981. Thereafter, the record was sent to this Court. After the receipt of the record by the learned District Judge, he will give reasonable time to the petitioner for filing of her written statement.

11. If any application under Section 24 of the Act has been filed as stated by Mr. N.P. Gupta, learned Counsel for the petitioner, the learned District Judge will make all possible endeavour to dispose of that application promptly and expeditiously in accordance with law.


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