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CR No.1431 of 2020 (OM)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.1431 of 2020 (OM)
Date of Decision: 05.03.2020
Rajesh Arora … Petitioner
Versus
Sonia Arora another … Respondents
CORAM: HON’BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Aalok Jagga, Advocate,
for the petitioner.
Mr. Naveen Sharma, Advocate,
for the caveator respondents.
RAJIV NARAIN RAINA, J.
1. The challenge in this petition filed under Article 227 of the
Constitution is to the order dated 4.10.2019 (Annex P-7) and the order dated
29.11.2019 (Annex P-14) passed by the Additional Principal Judge, Family
Court, Ludhiana alleging them to be unsustainable and contrary to law in Order
XXI, Rule 37 CPC r/w Section 151 of the CPC. The prayer is for quashing
both the orders issuing warrants of imprisonment in execution proceedings for
recovery of maintenance.
2. During the course of hearing Mr. Aalok Jagga for the petitioner
and Mr. Naveen Sharma for the caveator at length, on reading the impugned
orders and connected orders passed in the execution proceedings [photocopies
of which have been produced by Mr. Jagga and are taken on record with no
objection from opposite side being judicial orders] and upon perusal of the
papers on file, this Court is called upon to critically review; Firstly, the short
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order dated 4.10.2019 and Secondly, the long order dated 29.11.2019, which
both are in my opinion not only patently illegal and improper but are also
perverse in the draconian exercise of power to imprison the petitioner which is
not vested in the Family Court at Ludhiana without following the due
procedure in the facts and circumstances of this case. The orders have resulted
in evil consequences to the petitioner by the imminent threat extended of being
sent to judicial custody/ imprisonment in execution proceedings filed by the
first respondent (presently his ex-wife) and her daughter, from her marriage
with the petitioner, for payment of arrears of maintenance under an order dated
5.4.2016. The impugned orders have led to a grave miscarriage of justice. This
order is passed without expressing any opinion on the merits of the case as to
the right to arrears of maintenance or its quantification as claimed, as it is tied
to pending execution proceedings and, therefore, deserve not to suffer any
comment from this Court in the present revision petition, except to say in a
limited way that the petitioner has placed on record certain documents
depicting that Rs.3 lakhs has already been paid towards maintenance pendente
lite, as ordered by the trial court, which issue will fall to the work of the
execution court on remand, if ordered. Petitioner admits that the amount has
been paid under Section 125 of the Cr.PC, but says that it is to be adjusted
against the maintenance awarded under the collateral provisions of the Hindu
Marriage Act, 1955 (for short the ‘HMA’).
3. A few broad but narrow facts are retold. Two execution
applications bearing No.1625 of 2019 and 1626 of 2019 were filed before the
Additional Principal Judge, Family Court, Ludhiana on 2.8.2019 to implement
an order passed by the court in the then pending divorce petition issued under
Sections 24 and 26 of the HMA in favour of the respondent granting her the
arrears of maintenance [before the marriage was dissolved by a decree of
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divorce granted on 15.11.2019 by the predecessor Additional Family Court at
Ludhiana in a divorce petition filed by the wife] and in execution of the orders
passed in maintenance proceedings under Section 125 Cr.PC. Two execution
applications were filed by the wife claiming different amounts in them. In
execution proceeding case No.1626/2019 taken out by the respondent, the first
zimni order in the case passed on 2.8.2019 reads:
“Present: Sh. Sunil Dutt, Adv for Applicant.
***
Execution has been filed. It be registered. Let
notice of the execution be served upon JD for 04.10.2019.”
4. The case on being adjourned to 4.10.2019, on which day the
following impugned order was passed, which has brought the petitioner to this
Court challenging it as contrary to Order XXI, Rule 37 CPC r/w Section 151
CPC and complaining that the order was issued despite improper service of
summons on the petitioner leading to the drastic measure of warrants of civil
imprisonment disregarding the principles of natural justice and the law. Despite
no notice to petitioner, fresh warrants of imprisonment were issued for
7.2.2020 while in the same breath ordering issuance of process for execution of
fresh warrants of imprisonment, again without effecting service. That
impugned order reads: –
“Present: Sh. Sunil Dutt, Adv for Applicant.
***
Notice issued to respondent reportedly received
back unserved with the report that respondent has left the
supplied address. This is an execution application where the
arrears of maintenance fixed under Section 24 of HMA are
payable. Therefore, Civil imprisonment for one month is
ordered on deposit of one month charges. After deposit of one
month charges by the petitioner, warrants of imprisonment be
issued for accordingly, for 04.11.2019.”
5. Warrants of imprisonment (civil) have been issued against the
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petitioner several times as borne by the record even though the first notice
issued on 2.8.2019 was received back ‘unserved’ with the process serving
agency reporting that the respondent has left the “supplied address”. The two
orders have been reproduced above. On 4.11.2019 fresh warrants of
imprisonment were issued on deposit of civil imprisonment charges as
summons were not received back. The subsequent two orders dated 18.11.2019
and the impugned order dated 29.11.2019 have been dealt with in detail in the
course of the order. Thereafter, two orders dated 2.12.2019 and 4.1.2020 were
passed identical to the ones dated 4.11.2019 when warrants were not received
back served. The case was adjourned to 15.2.2020. On 14.2.2020 the file was
taken up by the Additional Family Court and the following order was passed
recording that counsel for the parties be informed, but respondent (petitioner)
was not even served leave alone engaging counsel, then who was expected to
be informed on his behalf:-
“File taken up today as I would be on leave for 15.02.2020.
Case is adjourned to 27.3.2020 for the purpose already fixed.
Counsel for the parties be informed accordingly.”
6. Aggrieved by the impugned orders, the present petition was filed
on 20.2.2020 and came up for hearing on 5.3.2020 in the presence of the
caveator respondent. They were heard and the petition was allowed with orders
partly dictated in Court and took some time to finalize and release and
uploading on Mozilla. The petitioner has placed sufficient prima facie evidence
on the file to prove the fact of want of service of summons on the correct
correspondence address, those being the report of the Process Server and the
addresses given in various applications, pleadings etc and the cause title
describing the address differently from the one he was attempted to be served
with the summons, so as to make proper service of court notice. Accordingly,
personal service was deflected to the wrong quarters and justice was denied to
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the petitioner by the Additional Family Court.
7. Another striking feature of impropriety committed by the
Additional Family Court in the matter of service on the petitioner is, as pleaded
by Mr. Jagga in the petition, that there is already a civil suit pending in the
Ludhiana Courts between the parties, with the petitioner claiming that property
in the name of the wife was actually purchased by him from his own funds.
The petitioner is the plaintiff in the suit which is being contested by the
respondents. No comment is made in this behalf as the matter is sub judice in
the trial court at Ludhiana. Mr. Jagga says that the moment the petitioner
appeared at the hearing in the civil suit on 18.11.2019 [three days after the
marriage was dissolved] respondent taking advantage of the warrants of
imprisonment already issued by the Additional Family Court, aided by the
petitioner’s presence in the court, got the petitioner arrested by the police with
the warrants in hand ready for service to send the petitioner to civil prison
which is also the Jail. He was produced on the same day by the police [while
the case stood adjourned to 7.2.2020 before the roster Additional Family Court
(name withheld) and was taken up by the Court of Shri Ajaib Singh another
Additional Principal Judge, Family Court, Ludhiana on duty as the former was
not holding court on that day. An order was made on the request of the
respondent ex-wife pressing for arrest by execution of the warrants of
imprisonment [by calling for the file from the office, as the case was not listed
before any of the Family Courts at Ludhiana] and the following order was
passed, which order is, to my mind, an order sound in law and perfectly
justified in the situation it was passed in restoring the path of justice and saving
the day from the virulent attack of the impugned order dated 4.10.2019. That
perfectly good order dated 18.11.2019 by the Court of Shri Ajaib Singh,
Additional Principal Judge, Family Court, Ludhiana, deserves to be paid a
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tribute while subjugating a slight transgression of jurisdiction as the Judge was
on “work duty”, but which departure is not fatal to the validity of the order as it
ultimately does justice according to law defanging the order dated 4.10.2019
and removing its sting, by releasing the petitioner to arrange payment. The
order dated 18.11.2019 is reproduced for ready reference as it has a material
bearing on the conduct of the Judge whose name is withheld: –
“Present: Applicant with Shri Sunil Dutt, Advocate
Respondent Rajesh Arora in person.
***
The application for execution fixed for
07.02.2020 before the court of Shri xxx (name withheld),
Additional, Principal Judge, Family Court, Ludhiana is
put up today before me, because the respondent is
produced before me by the police authority in pursuance
of the warrant of imprisonment issued as per previous
order. The respondent has suffered a separate statement
that he has paid about more than Rs.2,00,000/- to the
applicants and he shall clear the arrear of maintenance in
installments to the applicants and he may kindly be given
some time for the same. The applicant No.2 Mridul has
suffered a separate statement for withdrawal of the
present application for execution on his behalf filed by
his mother against respondent at this stage of the same
because he has received the entire payment of his part of
the order passed in his favour against the respondent.
Therefore, the present application for execution is
dismissed as withdrawn on the part of the applicant No.2
against the respondent. The applicant Nos.1 and 3 could
not show any provision of law under which the
respondent can be sent to undergo civil imprisonment on
default of remaining payments of maintenance granted
under Section 24 and 26 of Hindu Marriage Act and
resulting of which the respondent is ordered to be
released and is given time to the respondent to arrange
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the remaining payment of maintenance for clearing the
arrear of maintenance to the applicants on 23.11.2019
before the said court to proceed as per law.”
8. Since I have dwelt in some detail on the order of the learned
Additional Principal Judge Shri Ajaib Singh in the Family Courts at Ludhiana
and praised the officer for passing a fair and reasonable order and doing the
correct thing in balancing out the competing interests by recording the
statement of the petitioner and being not unmindful of the slight transgression
of jurisdiction therein while performing duty work, but, the power was resorted
to, to save the petitioner from being sent to jail there and then from his Court in
execution of warrants of imprisonment. Had the officer been holding court on
18.11.2019, the petitioner would have been serving civil sentence in jail
without recourse to legal remedy.
9. Nevertheless, the aggressive reaction that order met with the angry
Judge on 29.11.2019 to whom the file returned, whose conduct is under the
lens, is not praiseworthy. He may never have imagined the trouble he could get
into in the High Court in revision proceedings on the reckless orders he passed
relentlessly with his mind inclined towards a chosen end to act in a particular
way to create a fiat accompli by imprisonment before an effective remedy
could be sought by the respondent before him. I cannot help saying that a
Judge must always remain calm, neutral, impartial and dispassionate even in
the midst of provocation. I find no cause for provocation here to be so upset
with the orders of the coordinate bench releasing the petitioner from the
warrants of imprisonment and letting him off, an expression used in the
impugned order. In an order a Court must choose its words guardedly so as not
to reveal any disquiet or bad faith. And to use words in an order which are
appropriate to the decision and to the cause it represents. At all times
displaying the large heartedness to acknowledge his errors with the spirit of
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enquiry and the capacity to learn, by “discarding all mere pride of opinion” and
to be always a gentleman to his colleagues in his remarks in a judicial order or
judgment. He should not play into the hands of a party and cut his feet in a
superior Court while reviewing his order. He must tread his ground carefully
as there are many thorns in the way.
10. None of these virtues can I see in his impugned orders more so the
second one. I am sufficiently moved to pen down my thoughts to say that the
order dated 29.11.2019 is so intemperate in its language, so unworthy of
respect, so full of injustice and so dishearteningly bad, that it deserves to be
placed and read forever on the files of the Court of Record. That is why I have
reproduced it at length, not to humiliate him in public for the pride in the
fraternity of justice delivery and the way it is to be administered is such that
everyone says with approval: “Here stands an upright Judge”. I say so only to
awaken and sensitize him. That is why I have withheld his name in the order,
which reads, with all its flaws of language, grammar, spelling and punctuation
mistakes. He did not proof read the order to sort out errors in use of upper and
lower case and left one sentence incomplete while the first name of the
predecessor learned Additional District Judge-cum-Family Court is misspelled
“Bisham” for Shri Bishan Saroop and yet he signed the order; [and I wish I
could proof read the order if the Judge himself didn’t do so]. The order
surprisingly imputes knowledge on the petitioner of the proceedings but
disregards the factum of service of notice when on his own showing in the
order in execution remaining unsuccessful, and still holds the petitioner to
“ransom” threatening him with jail on pain of not paying the balance amount of
the arrears of maintenance to the applicants. After all he was executing the
decree but not the petitioner, which he was trying to do.
11. It appears to me that for him issuing notice was enough to
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imprison the petitioner by invoking his “inherent powers”, while peppering the
order with three precedents to lend credibility to his order. It is a rudimentary
principle that there exist no inherent powers contrary to the provisions of the
Statute, therefore, the Judge could not have bypassed the mandatory procedure
u/s 51 r/w Order XXI Rule 37 40 by invoking his “inherent powers” to order
civil imprisonment. Even so, Court has never said, nor can say, that service of
summons can ever be presumed duly effected for sending a man to civil
imprisonment and judicial custody except in accordance with the relevant
provisions of Order V read with Order XXI, Rule 37 (2) of the Code of Civil
Procedure, 1908, the High Court Rules Orders and the provisions of the
Family Courts Act, 1984. That order of 29.11.2019 under serious challenge in
this petition reads in verbatim as follows:
“Present: Applicant with Sh. Sunil Dutt, Adv.
None for respondent/JD.
***
Rajesh Arora is not present. The execution application
was filed in this court for issuance of warrants to show cause
why the JD should not be sent to civil imprisonment with
regard to order dated 5.04.2016 by virtue of which the
maintenance u/s 24, 26 of HMA was fixed by the court of Sh.
Bisham Saroop, Addl. District and Sessions Judge, Ludhiana.
The said court was pleased to fix maintenance to the tune of
Rs.3000/- per month to minor children and Rs.8000/- per
month to the wife and in the execution application, it was
requested that civil imprisonment warrants be issued.
On receipt of the same, notice was ordered to be issued
and the house was lying locked and this court had directed to
issue civil imprisonment warrants for one month on deposit of
one month charges. Thereafter, he was produced in the court
of Sh. Ajaib Singh, on dated 18.11.2019 and it was ordered
that the applicants could not show any provision of law under
which the respondent can be sent to undergo civil
imprisonment on default of remaining payment of
maintenance granted u/s 24 and 26 of HMA and the
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respondent was released by giving time to arrange the
remaining amount. Although, the said court was not
competent to pass any order while, holding a duty work but in
his wisdom, he had gone on to decide that my order for
issuance of warrants for civil imprisonment u/o 21 rule 37
CPC was invalid. It was not proper for a parallel court to
pass any order in the file which is only received by the said
court for a duty purpose. If the said court was of the opinion
he was not under obligation to decide the case of this court on
merit. I had already made a reference for transfer of the case
because of propriety demanded that I should not re-decide on
a issue on account of this situation.
This has compelled me to explain the law on the
subject. First of all, from my orders it is clear that show
cause notice was issued and on being satisfied that the
respondent has the knowledge and intentionally not making
the payment this court had ordered issuance of civil
imprisonment.
The Ld. Counsel for DH has contended that the family
court has got inherent jurisdiction to pass any order to
advance justice. However, as far as, the law is concerned, our
on Hon’ble Punjab and Haryana High Court in a case titled as
“Suman vs. Ajit Singh, 2011 (1) HLR 291 (PH)” Civil
Procedure Code, 1908, Order 21 Rule 37 Sub-rule (2),
Rule 40 and Section 51 Proviso – Warrants for arrest –
Jurisdiction – Non-appearance in the Court in response to
the notice to show cause – Court was well within its
jurisdiction to issue warrants for his arrest in pursuance
of sub-rule (2) of rule 37 – Purpose of issuance of
warrants for his arrest – is to secure his presence before
Executing Court so that proceedings consistent with Rule
40 could be taken was pleased to hold that order 21 rule 37
of CPC is applicable. Further, in another pronouncement case
titled as “Baljit Kaur vs. Jasvir Singh, 2011 (1) HLR 508”
Hindu Marriage Act, 1955, Sections 13 and 24. The
Hon’ble High Court has pleased to pass that Husband has
not paid the maintenance pendente lite and litigation
expenses as ordered by High Court more than a year ago
– Wife can file a petition under Order 21 Rule 37 Civil
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Procedure Code for the recovery of this amount –
Husband can also be hauled up under the Contempt of
Courts Act for disobedience of Court’s order – Defence of
husband liable to be stuck off. Further mode under the
family court act 1984, the family court has got the inherent
power and can formulate any procedure to advance justice.
And also u/s 28 A of HMA any order passed under the HMA
is liable to be enforced by exercising the civil jurisdiction and
it is deemed to be decree.
The Hon’ble Punjab and Haryana High Court had
again reiterated that order 21 rule 37 of CPC is applicable. In
case titled as “Ved Prakash vs. Sneh Lata, 1989 (1) PLR
161 (PH) Civil Procedure Code, 1908, Order 21 Rule 37
Sub-rule (2), Rule 40 and Section 51 Proviso – Warrants
for arrest – Jurisdiction – Non-appearance in the Court in
response to the notice to show cause – Court was well
within its jurisdiction to issue warrants for his arrest in
pursuance of sub-rule (2) of rule 37 – Purpose of issuance
of warrants for his arrest – is to secure his presence before
Executing Court so that proceedings consistent with Rule
40 could be taken. Our own Hon’ble Punjab and Haryana
High court had categorically held that non-appearance in
court in response to show cause the court was well within its
jurisdiction to issue warrants for his arrest in pursuance to sub
rule to 2 of Rule 37 of order 21. Therefore, the court of Ajaib
Singh was not justified in saying that there is no provision of
law for execution of any order passed by family court or any
other court under HMA fixing the maintenance. Since, the
respondent is already let of and he is deemed to have full
show cause notice and despite the same has not made any
payment. Therefore, fresh civil imprisonment warrants be
issued for 12.12.2019 on deposit of one month charges. He
be produced before this court, if he fails to make the payment
of the amount mentioned in the warrants of arrest.”
(emphasis by under-scoring supplied. Mistakes in the
order are those of the maker. The bold parts of the three
cases-the catch words – are as per the attested copy, the first
sentence of paragraph 3, I highlighted in bold text)
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12. The fatal flaw of improper service of the execution proceedings on
the petitioner; learned counsel for the respondent as a fact is unable to deny
from the record that notice issued to the petitioner was not at the correct
address of the targeted recipient and was thus misdirected. The Family Court,
thus, fell in grave error by introducing the concept of deemed service of notice
fallaciously reasoning, in the words of the order, that “Since, the respondent is
already let of (sic, ‘off’) and he is deemed to have full show cause notice and
despite the same has not made any payment”.
13. If this is the conceded position, then the present respondent cannot
wriggle out of her misadventure. Mr. Aalok Jagga says the petitioner had
shifted base to Delhi from Ludhiana long ago and the respondent knew of this
fact. She also knew it from the pleadings in the civil suit filed by the petitioner
with his new address in Delhi described in the pleadings and affidavits, but the
execution application papers presented by the wife still contained the address
in Ludhiana, where he could never be served even by a long shot. The address
where the petitioner was earlier staying was ‘11091, Street No.3 4, backside
Sangeet Cinema, Ludhiana’ which property was mortgaged with the Central
Bank of India for obtaining a business loan. The Bank had taken physical
possession of the property on 14.10.2016 and sold it off in a public auction to
recover default money and the sale certificate was issued on 10.8.2017 to the
purchaser. The respondent was fully aware of the said sale because the Bank
alleges that she had given a statement to it to proceed against the asset for
recovery of outstanding amount owed to the Bank. The first respondent knew
the petitioner was not staying at the address, where he was earlier staying, and
therefore, despite being aware of the fresh address together with knowledge
from his regular appearances in the civil court in the pending suit, she did not
bring it to the notice of the Family Court and gave an impression to it as if the
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summons could be served at the defunct Ludhiana address and, therefore, in
failing to appear, he is evading service. The Additional Family Court
swallowed this falsity readily imputing deemed service of the petitioner
without applying his mind to the facts of the case and the law, controlled in the
matter of arrest and detention by the over-arching and fundamental principles
of Article 21 of the Constitution while blindly applying the provisions of
Section 51 and Order XXI, Rule 37 of the Code to bring the petitioner
hurriedly to book.
14. The Family Court has referred to two judgments which have
considered Section 51 of the Code, namely, Suman vs. Ajit and Ved Prakash vs.
Sneh Lata but has failed to consider the difference between warrants of arrest
and warrants of imprisonment. The first is to secure presence and on failure to
pay the money decreed to consider the next step of detention in prison. These
two stages are delineated in the Proviso to Section 51 r/w Order XXI Rule 37
Rule 40 of the Code which guarantees offender being put to show cause
[presupposing party served at the correct address] and hearing him on why he
should not be committed to prison and if he fails to show cause to the
satisfaction of the Court, then court has to record reasons in writing justifying
civil imprisonment that one or more of the four conditions in sub-sections (a)
(i) and (ii) and (b) of the Proviso are shown to exist by the decree-holder. It has
thus become necessary to visit Section 51 and its Proviso along with Rules 37
40 of Order XXI. The provisions are reproduced:
“51. Powers of Court to enforce execution.–Subject to
such conditions and limitations as may be prescribed, the
Court may, on the application of the decree-holder, order
execution of the decree–
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment
of any property;
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(c) by arrest and detention in prison [for such period not
exceeding the period specified in section 58,
where arrest and detention is permissible under that section];
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted
may require :
Provided that, where the decree is for the payment of
money, execution by detention in prison shall not be
ordered unless, after giving the judgment-debtor an
opportunity of showing cause why he should not be
committed to prison, the Court, for reasons recorded in
writing, is satisfied–
(a) that the judgment-debtor, with the object or effect of
obstructing or delaying the execution of the decree,–
(i) is likely to abscond or leave the local limits of the
jurisdiction of the Court, or
(ii) has, after the institution of the suit in which the decree
was passed, dishonestly transferred, concealed, or removed
any part of his property, or committed any other act of bad
faith in relation to his property, or
(b) that the judgment-debtor has, or has had since the date of
the decree the means to pay the amount of the decree or some
substantial part thereof and refuses or neglects or has refused
or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor
was bound in a fiduciary capacity to account.
Explanation — In the calculation of the means of the
judgment-debtor for the purposes of clause (b), there shall be
left out of account any property which, by or under any law or
custom having the force of law for the time being in force, is
exempt from attachment in execution of the decree.]”
Order XXI Rule 37
“Discretionary power to permit judgment debtor to show
cause against detention in prison:
(1) Notwithstanding, anything in these rules, where an
application is for the execution of a decree for the payment of
money by the arrest and detention in the civil prison of a
judgment debtor who is liable to be arrested in pursuance of
the application, the Court [shall], instead of issuing a warrant
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for his arrest, issue a notice calling upon him to appear before
the Court on a day to be specified in the notice and show
cause why he should not be committed to the civil prison:
[Provided that such notice shall not be necessary if the Court
is satisfied, by affidavit, or otherwise, that, with object or
effort of delaying the execution of the decree, the judgment-
debtor is likely to abscond or leave the local limits of the
jurisdiction of the Court.]
(2) Where appearance is not made in obedience to the
notice, the Court shall, if the decree-holder so requires, issue
a warrant for the arrest of the judgment-debtor.”
Order XXI, Rule 40
“Proceedings on appearance of the judgment-debtor in
obedience to notice after arrest
(1) When a judgment-debtor appears before the Court in
obedience to a notice issued under Rule 37, or is brought
before the Court after being arrested in execution of a decree
for payment of money, the Court shall proceed to hear the
decree-holder and take all such evidence as maybe produced
by him in support of his application for execution, and shall
then give the judgment-debtor an opportunity of showing
cause why he should not be committed to the civil prison.
(2) Pending the conclusion of the inquiry under sub-rule
(1) the Court may, in its discretion, order the judgment-debtor
to be detained in the custody of an officer of the Court or
release him on his furnishing security to the satisfaction of the
Court for his appearance when required.
(3) Upon the conclusion of the inquiry under sub-rule(1)
the Court may, subject to the provisions of Section 51 and to
the other provisions of this Code, make an order for the
detention of the judgment-debtor in the civil prison and shall
in that event cause him to be arrested if he is not already
under arrest:
Provided that in order to give the judgment-debtor an
opportunity of satisfying the decree, the Court may, before
making the order of detention, leave the judgment-debtor in
the custody of an officer of the Court for a specified period
not exceeding fifteen days or release him on his furnishing
security to the satisfaction of the Court for his appearance at
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the expiration of the specified period if the decree be not
sooner satisfied.
(4) A judgment-debtor released under this rule may be re-
arrested.
(5) When the Court does not make an order of detention
under sub-rule (3), it shall disallow the application and, if the
judgment-debtor is under arrest, direct his release.”
15. A bare reading of these provisions makes the procedure for
detaining a defaulting judgment-debtor amply clear:
(i) On the application of decree-holder under Order XXI Rule 37 for
execution of a money decree by the arrest and detention of the
judgment-debtor, the Court “shall” issue a show cause notice
instead of issuing warrant for his arrest. This mandatory provision
ensures the preservation of an individual’s right to liberty,
enshrined in Article 21 of our Constitution, by following the
principle of natural justice; audi alteram partem.
The only exception to issuing a show cause notice before issuing
warrant for arrest is if on an affidavit by the decree-holder or
otherwise, the Court is satisfied that the judgment-debtor is likely
to abscond or leave the Court’s jurisdiction with an object or
effect of delaying the execution. In which case, it is necessary for
the Court to record its reasons, for a non-speaking order is as good
as an arbitrary and draconian action against a person depriving
him of his fundamental right to liberty contrary to the due process
of law.
(ii) Where the judgment-debtor fails to make appearance in obedience
of the show-cause notice, the Court is empowered to issue a
warrant of arrest on the decree-holder’s application under Order
XXI Rule 37(2). However, this power of the Court is limited by
Order XXI Rule 40, which requires the arrested judgment-debtor
to be produced before the Court and for the Court to hear the
decree-holder and take all such evidence which is produced by
him in support of his application. After which the Court is
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mandated to give an opportunity to the judgment-debtor for
showing cause why he should not be committed to civil prison.
Meaning thereby, that the warrants issued under Rule 37(2) are for
arrest to ensure appearance, the judgment-debtor’s detention in
civil prison follows only after the requirements of Rule 40 are
satisfied.
(iii) The inquiry as envisaged in Rule 40(1) is mandatory, pending
which the Court is only authorised as far as to detain the
judgment-debtor in the custody of an officer of the Court or take
security from him for his appearance.
(iv) Sub-rule 3 of Rule 40 subjects the Court’s power of detaining the
judgment-debtor in civil prison to the provisions of Section 51.
Therefore, the Court cannot order detention unless it is satisfied
that any of the three conditions, in the Proviso to Section 51, exist.
16. It is to be borne in mind that the satisfaction of these conditions
does not mandate civil imprisonment, the Court has the discretion to decide
against detention in civil imprisonment and order either; the judgment-debtors
detention in custody of an Officer of the Court for maximum fifteen days, or
release him on furnishing security for appearance on a specified date if the
decree is not sooner satisfied. Thus, it is evident that there exist sufficient
safeguards at each stage against the detention of the judgment-debtor, which
the Court cannot circumvent.
17. I fail to find any of these statutory reasons recorded in the ex-parte
orders dated 4.10.2019 and 29.11.2019 which may justify execution of
warrants of imprisonment without effective show cause and hearing; not only
are these orders pronounced in defiance of the principle of audi alteram
partem, but they also fail to show any mala-fides in the conduct of the
petitioner. On the other hand, Shri Ajaib Singh passed a reasonable order
without compelling himself to explain the law on the subject. This work was
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left to be analysed by the court in question.
18. The interplay of the values in the Constitution and the relevant
provisions of the Code on the question whether under such circumstances
personal freedom of the judgment-debtor can be held to “ransom” [the word
used in the judgment which is referred to next] until payment of the debt,
Justice V.R. Krishna Iyer sitting with Justice R.S. Pathak in the Supreme Court
in the precedent ‘Jolly George Varghese v. The Bank of Cochin’, AIR 1980 SC
470 went back to the judgment he delivered as Judge in the Kerala High Court,
quoting from it the following extract which makes the position clear to the
mind. In that case, on facts, a judgment-debtor was sought to be detained under
Order XXI 21, Rule 37 CPC although he was seventy and had spent away on
his illness the means he once had to pay off the decree. The observations there
made are apposite and may profitably bear reproduction in answer to the
question posed by the Supreme Court for determination: “The question is
whether under such circumstances the personal freedom of the judgment-
debtors can be held in ransom until repayment of the debt, and if s. 51 read
with O 21, R 37, C.P.C. does warrant such a step, whether the provision of law
is constitutional, tested on the touchstone of fair procedure under Art. 21 and in
conformity with the inherent dignity of the human person in the light of Art. 11
of the International Covenant on Civil and Political Rights”. The Court held:
“The last argument which consumed most of the time of the
long arguments of learned counsel for the appellant is that the
International Covenants on Civil and Political Rights are part
of the law of the land and have to be respected by the
Municipal Courts. Article 11, which I have extracted earlier,
grants immunity from imprisonment to indigent but honest
judgment-debtors.
The march of civilization has been a story of progressive
subordination of property rights to personal freedom; and a
by-product of this subordination finds noble expression in the
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declaration that “No one shall be imprisoned merely on the
ground of inability to fulfil a contractual obligation.” This
revolutionary change in the regard for the human person is
spanned by the possible shock that a resuscitated Shylock
would suffer if a modern Daniel were to come to judgment
when the former asks the pound of flesh from Antonio’s
bosom according to the tenor of the bond, by flatly refusing
the mayhem on the debtor, because the inability of an
impecunious obligee shall not imperil his liberty or person
under the new dispensation proclaimed by the Universal
Declaration of Human Rights. Viewed in this progressive
perspective we may examine whether there is any conflict
between s. 51 CPC and Article 11 of the International
Covenants quoted above. As already indicated by me, this
latter provision only interdicts imprisonment if that is sought
solely on the ground of inability to fulfil the obligation.
Section 51 also declares that if the debtor has no means to pay
he cannot be arrested and detained. If he has and still refuses
or neglects to honour his obligation or if he commits acts of
bad faith, he incurs the liability to imprisonment under s. 51 of
the Code, but this does not violate the mandate of Article 21.
However, if he once had the means but now has not or if he
has money now on which there are other pressing claims, it is
violative of the spirit of Article 11 to arrest and confine him in
jail so as to coerce him into payment…”
19. Further in the judgment in Jolly George the Supreme Court
observed on the place of Article 21 in cases of arrest and imprisonment of
debtor under Section 51 and Order XXI, Rule 37 CPC as follows:
“Equally meaningful is the import of Art.21 of the
Constitution in the context of imprisonment for non-payment
of debts. The high value of human dignity and the worth of
the human person enshrined in Art.21, read with Arts. 14 and
19, obligates the State not to incarcerate except under law
which is fair, just and reasonable in its procedural essence.
Maneka Gandhi’s case as developed further in Sunil Batra v.
Delhi Administration, Sita Ram Ors. v. State of U.P. and
Sunil Batra v. Delhi Administration lays down the
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proposition. It is too obvious to need elaboration that to cast a
person in prison because of his poverty and consequent
inability to meet his contractual liability is appalling. To be
poor, in this land of Daridra Narayana, is no crime and to
‘recover’ debts by the procedure of putting one in prison is too
flagrantly violative of Art.21 unless there is proof of the
minimal fairness of his wilful failure to pay in spite of his
sufficient means and absence of more terribly pressing claims
on his means such as medical bills to treat cancer or other
grave illness. Unreasonableness and unfairness in such a
procedure is inferable from Art. 11 of the Covenant. But this
is precisely the interpretation we have put on the Proviso to s.
51 C.P.C. and the lethal blow of Art. 21 cannot strike down
the provision, as now interpreted.”
20. Accordingly, parties have to be put back to the status quo ante
where they stood before the order dated 4.10.2019 was passed with suitable
course correction made by the applicant-respondent in the cause title by
supplying the proper address for purposes of service of summons. Merely
because the petitioner was produced in the Court of Shri Ajaib Singh on
18.11.2019 or has been forced to approach this court in what is an essentially
civil dispute for recovery of arrears of maintenance challenging the illegal
orders dated 4.10.2019 and 29.11.2019 and has thereby disclosed his
whereabouts in those Courts is, in my view, not sufficient to deem service upon
him to save the impugned orders by creating a fiction of service of the
proceedings upon the petitioner. The argument of the respondent to this
purported effect is not tenable and is rejected. Legal fictions cannot be created
extensively to infringe on the liberty of a citizen and then pack him off to
prison based on a presumption of service without following the due process of
the law. By following the procedure as established by law in procedural
safeguards, the courts are the guardians of life and liberty of the people, which
they are bound to honour and obey, before and after issuing processes of the
court. The Family Court acting under the Hindu Marriage Act is not exercising
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the powers of the Magistrate under Section 125 (3) of the Code of Criminal
Procedure, 1973 who can order imprisonment for a month in default of
payment of maintenance determined under that provision on failure of a
warrant of arrest for levying the amount due, which presupposes due service of
the order in the proceeding. Section 125 (3) provides that: “If any person so
ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order; issue a warrant for levying the
amount due in the manner provided for levying fines, and may sentence such
person, for the whole, or any part of each month’s allowance [allowance for the
maintenance or the interim maintenance and expenses of proceeding, as the
case may be,] remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one month or until payment if
sooner made:…” However, the question of putting the defaulter in prison, to be
sent in the proverbial hand-cuffs, does not arise in the present proceedings in
enforcement of arrears of maintenance by the ex-wife. This is not to say that
the presence of the husband cannot be secured by the Family Court to enforce
his attendance by suitable process as deemed fit to answer the prayers in the
two execution applications. But it is unheard of to straightaway issue a warrant
of imprisonment without first enforcing attendance. Family Court must avoid
an identity crisis sitting as Family Court (Civil) and Magistrate (Criminal) and
alternating between the two different jurisdictions from the same dais to
achieve different results. The judge appears to have mixed up the two elements
by a concoction and that too by following an illegal procedure in terrorem with
an inherent defect to start with resulting from non-service of notice upon the
husband.
21. In Taraknath Mukherjee v. Sandhya Mukherjee, 2018 SCC
OnLine Cal 6154, the Calcutta High Court held: “It is unheard of that an order
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passed under Section 24 of the Hindu Marriage Act, 1955 would be executed
by taking resort to the provisions of the Criminal Procedure Code.”
22. In the present petition, the petitioner has rightly prayed that
warrants of imprisonment be recalled forthwith by setting aside the order dated
4.10.2019. There was no occasion to issue them whatsoever without securing
legal attendance and calling for reply. In my considered view, also as in
Taraknath (supra), the petitioner cannot be sent to civil imprisonment in
violation of the due process of the law without giving him a fair opportunity of
hearing on his explanation, if any, that he has to offer and that too after proper
service of the execution application is duly effected on him personally by
adhering to the principles of natural justice and following the steps in Order
XXI, Rule 37 of the Code. This would have guaranteed to him the valuable
right to defend himself and to contest the execution applications, whatever may
be the result on merits finally determined by the court. It would be a travesty of
justice if the impugned order is allowed to stand when it ex facie deserves to be
annulled and the petitioner set at liberty for the time being, not so much from
the action in due execution of the decree but from imprisonment without
justification.
23. This Court expresses its displeasure over the passing of the nasty
order dated 4.10.2019 which is not only patently illegal and perverse but is also
contrary to all the well-accepted canons of justice, fair-play and even-handed
dealing by a court of law. The impugned order dated 29.11.2019 is even more
notorious in its unlawful consequences. The petitioner cannot be taken by
surprise for the fault of the Court. For a judge to pass such a wanton order
ignorant of the rudimentary principles of law; which not only is highly
improper for failing to follow the execution procedure provided u/s 51 r/w
Order XXI Rule 37 Rule 40, but is in violation of the fundamental rights
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implicit in a citizen conferred by Article 21 of the Constitution of India to
tenaciously protect his liberty, is showing abject lack of probity, sensitivity,
humanism, understanding, detachment and maintaining judicial discipline, the
last being the uppermost consideration. Article 21 bats for the protection of life
and personal liberty guaranteeing to the citizen that: No person shall be
deprived of his life or personal liberty except according to procedure
established by law. The order has the effect of tarnishing the image of the
institution of justice, which a Judge is bound not to corrode, in the eyes of the
public and bringing it to disrepute. Its impropriety is writ so large that it will
not be enough to just set it aside, but to also order a course correction of the
Judicial Officer [name withheld] to restore him to the sublime path of
venturing to do justice according to law in the future, so that litigants before
him are not imperilled in their cause. The Judge should have first called upon
the first respondent to supply the correct address of the petitioner instead of
being agitated and upon her doing so, could have issued fresh notice to serve
him. He could have also used the electronic media to notify him of the
proceedings in addition to normal process. That would have been the proper
thing to do. Even the excuses of everyday rush and hurry of court business or
an oversight cannot save such a perverse order whose two material parts cannot
coexist. Meaning thereby; notice not served but still the petitioner must go to
jail. Had he not approached this Court, he would have been called an ex
jailbird.
24. No Judge ought to have passed such a terrifying order, the judicial
impropriety of which disturbs the conscience of this court. It brings the judicial
process to infamy in public and the Bar if it were made extensively viral, which
would shake the confidence of the people in the institution which dispenses
justice as the guardian of law and to which they look upon as their saviour. The
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public reposes blind faith and implicit trust in the courts of law that they will
get from them justice according to law and nothing less, despite all odds and
travails they may face before knocking at its door or being called in.
25. The man was not served and still warrants of imprisonment were
issued twice over [even after the curative order dated 18.11.2019 was passed
by his fellow Judge for good and sufficient cause] as though he were a
common criminal. I can only express my deep anguish and disbelief of the
order, which has come as a shock to me, and that too, passed at the level of the
superior judicial service. God have mercy on the litigants that appear in his
court.
26. At the cost of lecturing we all should remain guided. The crux of
which is that a judge should try and develop an aerial vision of the case and not
be lost in the undergrowth, the fronds and the thickets and should not be
grieved when every dead leaf leaves his judgment to fashion it like a sculptor
or artist. Only the eloquent facts placed before him from a thick mass of
printed papers ought to be selected from a hundred and one which are relevant
to the conclusions. Parties plead many facts that they judge are essential but
that may not be always true. Some facts are not necessary while others can’t be
skipped. This requires skill earned by practice, experience and patience. The
skill lies in pruning the case file with deft secateurs in hand using it carefully to
reveal the bare necessities or the essential core issue/s required for the best
possible decision-making process in the facts and circumstances to mature into
a just and proper judgment and order. This effort will yield far greater fruit the
coming season to weather the litigation storms in appeal. There must be an
honest effort on the dais and if they fail there is nothing to fear or fret about. To
err is forgiven but seldom should the judicial work be arbitrary, whimsical or
dishonest or extraneous to the cause, which should never ever be seen done
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consciously. By this dishonesty I do not mean just pelf, but the purpose and the
objectives required to be achieved in the exploration of justice according to
law. The Judge must know how to read precedents from the point of view to
either follow or distinguish them for reasons discussed. There are no reasons in
the impugned order dated 29.11.2019. Therefore, the facts in each case are
supreme governors. Lord Alfred Thompson Denning, J. wrote in his book, ‘The
Discipline of Law’: “Precedent should be followed only so far as it marks the
path of justice, but you must cut the dead wood and trim off the side branches
else you will find yourself lost in thickets and branches. My plea is to keep the
path of justice clear of obstructions which could impede it.” How to read
judgments is itself a study of sorts and much work goes into it over the years
till the reflex becomes intuitive with the deposit of law in the judicial mind
collected over the years. The superior judiciary has to use this tool every day
and hone the skill which this judicial officer shows lack of.
27. To find the shortest plausible cut to the correct decision is every
judge’s dream. The lawyers in the case have to help find that path. This is what
litigants expect in the clarity of a judgment or order from a court that governs
their rights and binds them. They should not be short-changed and left
unconvinced that what the Court did was not right and justice in a court of law
was not obtained but was denied. A Judge’s mind and heart should be larger
than his distant self and much smaller than his ego. The ego of the Judge in the
Family Court in this case should not have been hurt by what his fellow judge
said in his order of release dated 29.11.2019, putting the case back on proper
track, for him to be judicially chided by the uncharitable remarks he made in
his order commenting on the work of his colleague in words he could have
avoided. Learned fellow-Judge rightly queried the wife’s counsel to show him
the law on whether at the stage he was at, the husband “can be sent to undergo
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civil imprisonment on default of remaining payments of maintenance granted
under section 24 and 26 of the Hindu Marriage Act” and then, on the failure of
the wife’s counsel to answer, judiciously granting time to the husband to
arrange payment. Judge Shri Ajaib Singh had intuitively found his way to the
heart of the judgment of the Supreme Court in Jolly George and arrived
judiciously at the same station. But the present Judge in the Family Court did
not learn his lesson well from that sound indication in the order and to the
contrary has revolted against it and as a result, run into rough weather in this
Court. We must understand that, “There is only one corner of the universe you
can be certain of improving, and that’s your own self” said Aldous Huxley. But
the Family Court asserts in his order pretentiously exclaiming he knows the
law by deriding the order dated 18.11.2019 declaring triumphantly that “…This
has compelled me to explain the law on the subject”. With such a large
statement made by the Family Court in the rank of an Additional District
Judge, one would expect a thesis on the subject. The order dated 29.11.2019 is
no thesis. It is only an artless badly written order with many glitches of the
English language such as that any person on the street could have written in or
out of law school. I have learnt nothing from it on the subject by way of
explanation of the law to improve my knowledge. Fools rush in where angels
fear to tread.
28. We need to revisit and analyze the order dated 29.11.2019 more
carefully, its threadbare reasoning and loud declarations made on law
depending on head notes of three cases made by unknown reporters, without
showing any evidence in his order of having read them to their meaning and
how they apply to the case in hand. The Judge in the Family Court is by his
tone and tenor in the impugned order apparently extremely hassled, feeling
insulted by the order dated 18.11.2019 passed by Judge Shri Ajaib Singh of
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coordinate jurisdiction being one of many Family Courts functioning in
Ludhiana. He actually means to say that the other learned Judge had no
business to pass the order as he was on “duty work” when the petitioner was
produced before him by the police on warrants of imprisonment. What a scene
that must have been in humiliation of the petitioner. This is confirmed by his
remarks in the order to the effect that: “… Although, the said court was not
competent to pass any order while, holding a duty work but in his wisdom, he
had gone on to decide that my order for issuance of warrants for civil
imprisonment u/o 21 rule 37 CPC was invalid”. By this observation he attacks
the order dated 18.11.2019 as being “invalid’ and then compounds it with the
logic promoted to achieve a particular end, to anyhow send the petitioner to jail
for non-payment of partial debt by recording the word “invalid” when nothing
of the kind was said in the order of 18.11.2019 as that word was not employed
therein. Or does he mean that an imputation is made against him and his
wisdom by the wisdom of Judge Shri Ajaib Singh or that the invalidity of the
order logically follows by necessary implication and thus it should be reviewed
when he had no such powers which could only be exercised by a superior
court. Judge Shri Ajaib Singh merely asked the wife’s counsel to show him the
legal position in the law if he could order judicial remand straightaway and
send the respondent, the present petitioner, to serve a sentence of civil
imprisonment. If he had not passed the order, the petitioner would most
certainly have been in jail and would have served out his sentence by now
without determination of his rights in execution when certain amounts had
been paid by him to the wife in court in the parallel proceedings under Section
125, Cr.PC claiming adjustment. There was nothing wrong in this
inquisitiveness and enquiry, which is a good quality in a Judge. We all ask
learned counsel to show us the law often enough. Obviously, the present Judge
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feels he does not need to ask for law from anyone as he knows it by heart or
something to that effect in the impugned orders, and his brother Judge is a
lesser mortal.
29. The author of the impugned order then commits a blunder in his
order by presuming due service of the execution proceedings on the petitioner,
and if that were true, then all other things follow sequitur. He remarks rather
angrily “It was not proper for a parallel Court to pass any order on the file
which is only received by the said Court for a duty purpose.” He accuses the
intermediary Court of being a “parallel court” that should not have passed the
order and free his game as if he was on a hunting trip, because it seems that he
was hell bent to do it again and issues fresh warrants of imprisonment and
bring back his quarry already “let of” [off with single “f”], to face the music of
wrath. For one, the Family Court is not a “Court” in the true sense of the word
but a court of limited jurisdiction closer to a Tribunal than a Court of law. All
Tribunals are not Courts though all Courts are Tribunals. The Family Court is a
creature of statute established under Section 3 of the Family Courts Act, 1984.
It is a quasi-judicial forum which has the trappings of the Court with functions
resembling and akin to it but not quite the same, holding which office, this
court is merged with both civil and criminal powers from restitution of
conjugal rights, judicial separation, pendente lite maintenance, permanent
maintenance, alimony, divorce etc etc in civil law and coercive authority for
enforcing maintenance under Section 125 Cr.PC with criminal sanctions to
back it. This power is derived by virtue of Section 7 of Chapter III of The
Family Courts Act, 1984 which provides that this forum shall exercise all the
jurisdiction exercisable by any district court and in this pursuit be deemed, for
the purposes of exercising such jurisdiction under such law, to be a district
court. The Supreme Court in S.D. Joshi vs. High Court of Judicature at
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Bombay, (2011) 1 SCC 252 brought out the stark reality of the status of the
Family Courts and their jurisprudential character in the context of elevation of
judicial officers to the Bench of the Bombay High Court from amongst
aspirants manning Family Courts, the Court holding in conclusion that:-
“For the reasons afore-recorded, we have no hesitation in
holding that the Principal and other Judges of the Family
Court may be `Judges’ presiding over such courts in its
‘generic sense’ but strict sensu are neither Members/integral
part of the `Judicial Services’ of the State of Maharashtra as
defined under Article 236 nor do they hold a `judicial office’
as contemplated under Article 217 of the Constitution of
India. Thus, they do not have any jus legitimum to be
considered for elevation to the High Court.”
30. The “Procedure generally” prescribed for this special court which
is nothing but a Tribunal is contained in Section 10 of the 1984 Act which
notifies the adjective law as follows:-
“10. Procedure generally.–(1) Subject to the other
provisions of this Act and the rules, the provisions of the Code
of Civil Procedure, 1908 (5 of 1908) and of any other law for
the time being in force shall apply to the suits and proceedings
[other than the proceedings under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974)] before a Family Court
and for the purposes of the said provisions of the Code, a
Family Court shall be deemed to be a civil court and shall
have all the powers of such court.
(2) Subject to the other provisions of this Act and the rules,
the provisions of the Code of Criminal Procedure, 1973 (2 of
1974) or the rules made thereunder, shall apply to the
proceedings under Chapter IX of that Code before a Family
Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent
a Family Court from laying down its own procedure with a
view to arrive at a settlement in respect of the subject-matter
of the suit or proceedings or at the truth of the facts alleged by
the one party and denied by the other.”
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31. There is an interpretational gap and visible difference between the
expressions that there is nothing preventing the Family Court “from laying
down its own procedure” in Section 10 of the 1984 Act as an exception to the
Code of Civil procedure, 1908 and the process of adjudication, by analogy,
exercised by the Labour Courts, Tribunals and National Tribunals established
under Section 7, 7A 7B of the Industrial Disputes Act, 1947 respectively,
which are also special tribunals with the trappings of the courts. Section 11
provides for the “Procedure and Power of Conciliation officers, Boards, Courts
and Tribunals:” prescribing in the Section that they “shall follow such
procedure as the arbitrator or other authority concerned may think fit”.
Accordingly, the Family Court cannot follow such procedure that it thinks fit to
do whimsically whatever it likes. The Judge, who passed the impugned order,
did not in the beginning, lay down its own procedure to exclude the Code
under Section 10 (1) of the 1984 Act which brings them to drink from the
waterhole of the Act, under which they function. Without understanding this
fine distinction in law, the Family Court emphatically observed in his blanket
order that it “has got the inherent power and can formulate any procedure to
advance justice.” In this statement he was not advancing justice but subverting
it. To support this submission, he drew strength from Baljit Kaur v. Jasvir
Singh, one of the three judgments he cited without dealing with the facts of the
case and then applying them to the stage of the case in hand so that the
appellate or revising court can assess the reasoning. He failed to cull out the
ratio, which work he thought unfit to do except to cut, copy and paste their
head notes in bold text as seen in the order, a sin considered cardinal in this
Court, to refer to Head Notes of reported judgments made by reporters without
citing from the reasoning within and to see what was indeed held to be binding.
He then emphatically declared in his order that: “Therefore, the Court of Ajaib
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Singh was not justified in saying that there is no provision of law for execution
of any order passed by family court or any other Court under HMA fixing the
maintenance.” Shri Ajaib Singh in his order of 18.10.2019 never said anything
of that sort. Putting words in the mouth of Judge Shri Ajaib Singh’s are of no
consequence and the order cannot be interpreted to mean something other than
what exists therein. He refers to his brother Judge as “Ajaib Singh”. If he was
taught judicial etiquette he would have said politely; “the Court of Shri Ajaib
Singh” or “Mr. Ajaib Singh” for which he may consider apologizing to his
colleague at the lunch table. He appears to be so irked and annoyed with Shri
Ajaib Singh’s order that he made an application to the learned District Judge,
Ludhiana to transfer the case from him writing in his judicial order that; “I had
already made a reference for transfer of the case because of propriety
demanded that I should not re-decide on a issue on account of this situation.”
He wrote an order on 23.11.2019 addressed to the Principal Family Court,
Ludhiana which shows how troubled his mind then and on 29.11.2019. The
relevant order, in which the request for transfer was made, dated 23.11.2019 is
reproduced here:
“Present: Applicant Sonia Arora with Shri Sunil Dutt,
Advocate
Execution application of applicant No.2
dismissed as withdrawn vide order dated
18.11.2019.
***
I have seen the order dated 18.11.2019 passed
by the court of Shri Ajaib Singh, learned Duty/Addl. Principal
Judge, Family Court, Ludhiana. In this case, the execution
application was pending before the undersigned and this court
had ordered for issuance of warrants on deposit of Civil
Imprisonment charges as the matter pertains to execution of
order passed in a civil case. Request for conditional warrants
was declined. After the deposit of civil imprisonment charges,
show cause notice was issued and the respondent was
produced before the learned Duty Judge, who in his own
wisdom, not only varied the order passed by this Court, but
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had given a clear finding as per his own wisdom. Therefore,
it would be more appropriate that the matter should be
disposed off by the same Court or by the learned Principal
District Judge, Family Court, Ludhiana. Under the
circumstances, I do not deem it appropriate to hear the matter
further. As such, the present file is sent to learned Principal
District Judge, Family Court, Ludhiana for 25.11.2019. The
parties are directed to appear before the learned Court of
Principal District Judge, Family Court, Ludhiana at 10.00 am
on 25.11.2019. Ahlmad of this Court is directed to send the
file to the concerned Court, immediately.” (emphasis added)
32. His request was declined by the learned Principal Judge, Family
Court, Ludhiana. The relevant order of the Principal Judge dated 25.11.2019
reads:
“Present: Applicant with Shri Sunil Dutt, Advocate.
Respondent Rajesh Arora in person.
***
Reference perused, which has been made in the
light of the order passed by the court of Shri Ajaib Singh,
learned Additional Principal Judge (Family Court), Ludhiana
on 18.11.2019, when Shri R.K.Sharma, learned Additional
Principal Judge (Family Court), was on leave. Without
expressing anything on the propriety and legality of the order
dated 18.11.2019, the undersigned is of the considered view
that the matter should be decided by the same court, where it
was originally pending. Therefore, the request for transfer of
the case is declined and the case is referred back to the court
of Shri R.K.Sharma, learned Additional Principal Judge
(Family Court), Ludhiana, for disposal in accordance with
law. The parties shall appear before the court of Shri
R.K.Sharma, Additional Principal Judge (Family Court),
Ludhiana on 29.11.2019. Ahlmad is directed to send the file,
complete in all respects, to the court concerned, well before
the date fixed.”
33. If propriety demanded, according to him not to re-decide on an
issue which led to the release of the warrants of imprisonment without law in
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support, he breached that propriety by reviewing that order suo motu holding
resolutely: “Therefore, the Court of Ajaib Singh was not justified in saying that
there is no provision of law for execution of any order passed by family court
or any other Court under HMA fixing the maintenance. Since, the respondent is
already let of and he is deemed to have full show cause notice and despite the
same has not made any payment. Therefore, fresh civil imprisonment warrants
be issued for 12.12.2019” He should have quoted the provisions of law under
which he was acting in the order for this Court to appreciate the order. None of
the three judgments even remotely apply. In none of them warrants of
imprisonment were involved. Two of them dealt with striking off defence for
avoiding filing written statement. Moreover, judgments are not provisions of
law, they reveal the law. In this manner, he concludes that because the
petitioner was let off by Shri Ajaib Singh and appeared before him on
production by the police on warrants, therefore, he is deemed to have notice of
the execution and can be sent to prison even when he was not served at his
address known to the wife.
34. The Judge then makes, at about the end of paragraph 2 of the
impugned order, a rather tall, daunting and pompous statement that the order of
his coordinate Family Court has “compelled” him “to explain the law on the
subject”. Explain the law on the subject? How can a person explain the law
when he does not show any signs of understanding or respecting the law to
review the order dated 18.11.2019 and order warrants of civil imprisonment
without an application before him or an order of a superior court setting it
aside. Or should I issue notice to him to personally appear in my court to
explain his order and ask him a few inconvenient questions on law. That would
be preposterous which I cannot even venture to think. Writing an essay in a
school competition or a paper in a law school examination is not writing a
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judgment or a judicial order which is open to challenge. Explaining the law on
the subject with the help of three judgments without mentioning case facts and
what was ruled therein to be binding law and what those three judgments have
actually held by matching them to the facts of this case, is looking in the
impugned order dated 29.11.2019 for three needles in a haystack. He cites just
the catch words of those three judgments presumably made by hired reporters
of the law journal reproducing them complete with hyphens and telegraphic
words in his order in bold text without any discussion. Those three cases are
titled “Suman vs. Ajit’, “Baljit Kaur vs. Jasvir Singh” and “Ved Prakash vs.
Sneh Lata, which are apparently distinguishable on law and facts. In fact one
can cite any number of judgements of this Court relevant to the issue at hand
which support the view taken by me. Here are some of them, namely, Tehal
Singh vs. Shivji Ram, 1985 (2) PLR 564 and Col. Ajaib Singh vs. PNB,
1991(1) PLR 231. In Tehal Singh, this Court observed:
“7. It is plain from a reading of the above provisions that
an executing Court can order the execution of a decree by
arrest and detention in prison of the judgment-debtor if it is
satisfied (i) that the judgment-debtor, with the object of
delaying the execution of the decree, is likely to abscond or
leave the local limits of the jurisdiction of the Court; or (ii)
has, after the institution of the suit in which the decree was
passed, dishonestly, transferred or concealed any part of his
property or committed any other act of bad faith in relation to
that, or (iii) that the judgment-debtor has had since the date of
the decree the means to pay the amount of the decree or
substantial part thereof and refuses or neglects or has refused
or neglected to pay the same. Unless and until any of these
conditions is satisfied, the executing Court cannot order the
detention of the judgment-debtor even if he fails to satisfy the
decree. In the present case, the learned executing Court has
only mentioned that the judgment-debtor had been trying to
delay and defeat the execution proceedings. He had filed
frivolous objections and had also got filed such objections34 of 43
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CR No.1431 of 2020 (OM)from his relations. He has not given a finding that judgment-
debtor had been guilty of any acts of omission and
commission enumerated above. From the tenor of the
impugned order, it will be seen that the decree-holder has not
pleaded any of the grounds mentioned in (a), (b) or (c) of
proviso to Section 51, enumerated above. This is a condition
precedent for invoking jurisdiction under Order 21 Rule 37
and 40, Civil Procedure Code. The order of detention of the
petitioner to civil prison for 75 days is thus unsustainable in
law. The learned executing Court acted with material
irregularity in exercise of its jurisdiction. The order is,
therefore, liable to be quashed. I order accordingly.”
34A. In Col. Ajaib Singh, a case of recovery, this Court held:
“The warrant of arrest is liable to be quashed, in the
considered view of this court, on the short ground that the
petitioner has not been heard before ordering his arrest. It has
been laid down in Order 21, Rule 37 of the Code of Civil
Procedure that notice should be issued before ordering the
detention of the judgment debtor in civil prison until and
unless a finding is recorded to the effect that the judgment-
debtor, with intent to delay and obstruct the execution of the
decree, is likely to abscond from the local limits of the
jurisdiction of the court. No such finding has been recorded.
In view thereof, the warrant of arrest could not have been
issued by the executing court.”
35. Similarly, in Didar Singh vs. SBI, 2013 (1) PLR 859 this Court
held:
“Application Annexure P/1 was moved on 8.10.2010
and impugned order was passed on the same day without
issuing notice of the application to the JD and without
granting him opportunity of hearing. Section 51 CPC provides
that where the decree is for the payment of money, execution
by detention in prison shall not be ordered unless, after giving
the judgment-debtor an opportunity of showing cause why he
should not be committed to prison, the Court, for reasons to
be recorded in writing, is satisfied as to the conditions35 of 43
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CR No.1431 of 2020 (OM)mentioned in the aforesaid provision. Thus, it was mandatory
for the executing court to have given show cause notice to the
JD against his proposed detention in prison. However,
executing court passed the impugned order without giving
any such opportunity to the JD. The impugned order is thus
completely perverse and illegal and suffers from jurisdictional
error.
In addition to the aforesaid, even Order 21 Rule 37
CPC stipulates that the court shall instead of issuing a warrant
for arrest of judgment debtor issue a notice calling upon him
to appear before the court and to show cause why he should
not be committed to the civil prison. Thus, both under section
51 as well as under Order 21 Rule 27 CPC, it was mandatory
for the executing court to have required the JD to show cause
against his proposed detention but no such opportunity to
show cause was given to the JD. No notice of the application
Annexure P/1 was issued to him.”
36. But I can risk observing even without reading those three
judgments relied on by the Court below in its order dated 29.11.2019, that none
of them could ever say, as no Court would, that without due service of notice
and show cause, no man can be proceeded against and sent to civil jail
straightaway for recovery of debt. The duty to explain those cases has fallen on
this Court to understand the casual approach in relying on them.
37. In Ved Prakash, the petitioner came to court against warrants of
arrest of the judgment debtor in execution for production in court so that on
that date he pays the decretal amount in alimony along with interest to show
cause why he should not be committed to civil prison. JD argued that none of
the conditions in Section 51 of the Code is satisfied nor any such satisfaction
has been recorded by the executing court. This court observed in paragraph 4
as follows:
“4. I have considered the rival contentions of the learned
counsel for the parties. It is evident that the warrants for arrest36 of 43
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CR No.1431 of 2020 (OM)of the petitioner have been issued through the impugned order
on his non-appearance in the Court in response to the notice
to show cause served on him, which was evidently issued
under Order 21 Rule 37 of the Civil Procedure Code. So,
when he did not appear in the Court in obedience to the said
notice, the Court was well within its jurisdiction to issue
warrants for his arrest in pursuance of sub-rule (2) of Rule 37
ibid, the purpose of issuance of warrants for his arrest to
secure his presence before the Executing Court so that
proceedings consistent with Rule 40 ibid could be taken. It is
in the course of such subsequent proceedings that the Court
has to record its satisfaction as regards requirement contained
in proviso to Section 51 of the Civil Procedure Code…”
38. I cannot see my way to apply this case to the present one. It is in
the subsequent stage of the proceedings after warrants of arrest have been
issued that the Court has to record its satisfaction as regards requirements in
proviso to Section 51. The Family Court has breached this law and misapplied
it to the stage he was at. And he was expounding the law but did not record the
elementary satisfaction. Apart from the fact the summons at either of the stages
were not served on the petitioner even assuming he had crossed the stage of
warrants of arrest, which he had not in his tearing hurry.
39. In Suman [2011] the Court was dealing with a case under HMA in
appeal against an order allowing the husband’s divorce petition. In appeal the
wife filed an application for pendente lite maintenance and to strike off the
defence of the respondent for non-payment of arrears and consequently to set
aside the divorce decree. The Family Court skipped the Head Note ‘A’ and fell
on ‘B’ reproduced in his order dated 29.11.2019 to concentrate on an
observation of the Court that a husband can be hauled up for contempt of court
for disobedience of the order of the High Court on maintenance without
applying his mind to the judgment or caring to read it. Husband had not paid
maintenance for years and his defence was struck off resulting in success of the
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appeal and setting aside of the decree. The facts of the case have no connection
with the facts of this case even by remote degree.
40. In Baljit Kaur [2011] the Court again considered a similar
situation as in Suman on striking off defence in a matrimonial matter in
execution of decretal amount of maintenance which had not been paid to the
wife. The judgment has nothing to do with the power of arrest and detention or
any other provision of the Code of Civil Procedure including Order XXI, Rule
37, Sections 51 or 40 and thus the ruling is clearly distinguishable on law and
facts which are not even remotely connected with this case except that a wife
claimed maintenance under a decree. The Additional Family Court cobbled
together these three judgments taken out of the hat and based his order not on
them, in his wisdom, but drawn from the cut copy paste of Head Notes of those
judgments reported in law journals, unlike the “wisdom” of Shri Ajaib Singh,
the learned Additional Principal Judge, Family Court; by failing to use his
mental faculties clouded by a magnificent obsession of sending the petitioner
to civil imprisonment to keep him at bay, as though that were a solution to the
money issue before him in execution. In this he threw the law to the winds
while “explaining” it in his order. And ironically, it was the order of Shri Ajaib
Singh, learned Additional Principal Judge, Family Court, Ludhiana that had
compelled him to explain the law on the subject, a rather tall claim, when he
has not even demonstrated in the order even the rudimentary knowledge of
what he was doing with the law by turning it upside down. He passed orders
behind the back of the petitioner and that is the worst thing a Judge can do.
42. In the circumstances I am left with, however much I would like
not to believe, with a distinct feeling of dismay which has crept in my thinking
of the worst scenario, and that is; was he mixed up with the applicant with his
mind set in the beginning to send the petitioner to prison on considerations
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other than law. The impugned orders are its tell-tale signs.
43. The question is how to read judgments for the law and principle/s
laid down therein in the context of key facts and relevant circumstances of a
case decided and how they are treated by the Judge and what it means to apply
its ratio decidendi [the reason for the legal decision] as a precedent in another
case, while distinguishing its obiter dictum and non-essential facts recorded in
the narration of facts upon which the ratio may not be based. The head-note
made by a reporter in a law journal of reported cases indicates only the broad
outlines of the case or the type it falls in and is the last thing to rely on in a
judgment or order. Determining the true ratio of a case is not as simple as
identifying the reason for the decision in a complex case. There are cases
without ratio but with conclusions. A conclusion does not constitute precedent.
The Additional Principal Judge, Family Court, Ludhiana fell in grave error in
blindly relying on the head-notes. The case law on the subject in hand was not
a complex one presenting difficulty in understanding. The field was covered by
statutory provisions which are well accepted which the court below failed to
read and apply. If he had, he would not have passed the impugned orders. The
principles of reading judgments have been elucidated in several dicta, the most
oft-quoted of which is, per Lord Halsbury in Quinn vs. Leathem, 1901 AC 495,
which was applied by the Constitution Bench in State of Orissa Vs. Sudhansu
Sekhar Misra others, AIR 1968 SC 647, quoting a passage from Leathem,
which reads as follows:
“Now before discussing the case of Allen vs. Flood, (1898)
AC 1 and what was decided therein, there are two
observations of a general character which I wish to make, and
one is to repeat what I have very often said before, that every
judgment must be read as applicable to the particular facts
proved, or assumed to be proved, since the generality of the
expressions, which may be found there are not intended to be39 of 43
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CR No.1431 of 2020 (OM)expositions of the whole law, but governed or qualified by the
particular facts of the case in which such expressions are to be
found. The other is that a case is only an authority for what it
actually decides. I entirely deny that it can be quoted for a
proposition that may seem to follow logically from it. Such a
mode of reasoning assumes that the law is necessarily a
logical Code, whereas every lawyer must acknowledge that
the law is not always logical at all.”
44. In Herrington vs. British Railways Board, [1972 (2) WLR 537]
Lord Morris spoke on the issue of how judgments are to be read:
“There is always peril in treating the words of a speech or
judgment as though they are words in a legislative enactment,
and it is to be remembered that judicial utterances are made in
the setting of the facts of a particular case. Circumstantial
flexibility, one additional or different fact may make a world
of difference between conclusions in two cases. Disposal of
cases by blindly placing reliance on a decision is not proper.”
45. The following words of Lord Denning in the matter of applying
precedents have become locus classicus. The extract is as follows:
“Each case depends on its own facts and a close similarity
between one case and another is not enough because even a
single significant detail may alter the entire aspect, in
deciding such cases, one should avoid the temptation to
decide cases (as said by Cardozo, J.) by matching the colour
of one case against the colour of another. To decide therefore,
on which side of the line a case falls, the broad resemblance
to another case is not at all decisive.”
46. Closer home, our Supreme Court explained the position in
application of precedents to future cases in a bench of three Judges in Union of
India vs. Dhanwanti Devi others, (1996) 6 SCC 44, K. Ramaswamy, J.
observing:
“A decision is only an authority for what it actually decides.
What is of the essence in decision is its ratio and not every
observation found therein not what logically follows from the
various observations made in the judgment. Every judgment
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must be read as applicable to the particular facts proved, since
the generality of the expressions which may be found there is
not intended to be exposition of the whole law, but governed
and qualified by the particular facts of the case in which such
expressions are to be found. It would, therefore, be not
profitable to extract a sentence here and there from the
judgment and to build upon it because the essence of the
decision is its ratio and not every observation found therein.
The enunciation of the reason or principle on which a question
before a court has been decided is alone binding between the
parties to it, but it, is the abstract ratio decidendi, ascertained
on a consideration of the judgment in relation to the subject
matter of the decision, which alone has the force of law and
which, when it is clear what it was, is binding. It is only the
principle laid down in the judgment that is binding law under
Article 141 of the Constitution. A deliberate judicial decision
arrived at after hearing an argument on a question which
arises in the case or is put in issue may constitute a precedent,
no matter for what reason, and the precedent by long
recognition may mature into rule of stare decisis. It is the rule
deductible from the application of law to the facts and
circumstances of the case which constitutes its ratio decidendi.
Therefore, in order to understand and appreciate the
binding force of a decision is always necessary to see what
were the facts in the case in which the decision was given and
what was the point which had to be decided. No judgment can
be read as if it is a statute. A word or a clause or a sentence in
the judgment cannot be regarded as a full exposition of law.
Law cannot afford to be static and therefore, Judges are to
employ an intelligent in the use of precedents.”
47. In the oft-quoted passage in Haryana Financial Corporation vs.
Jagdamba Oil Mills, (2002) 3 SCC 496 on the point of guidance to courts that
the tendency of placing blind reliance on judgments should not be the judicial
reflex, as they have to be applied carefully to the fact situation from case to
case since only the ratio binds and one different material point or relevant fact
can alter the entire aspect. The Supreme Court observing thus:
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“Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed.
Observations of Courts are not to be read as Euclid’s theorems
nor as provisions of the statute. These observations must be
read in the context in which they appear. Judgments of courts
are not to be construed as statutes. To interpret words, phrases
and provisions of a statute, it may become necessary for
judges to embark into lengthy discussions but the discussion
is meant to explain and not to define. Judges interpret statutes,
they do not interpret judgments. They interpret words of
statutes; their words are not to be interpreted as statutes.”
48. As a result of the afore-stated reasons coming from the discussion
that has followed, the petition is accepted. The caveat is discharged. The
impugned orders dated 4.10.2019 and 29.11.2019 with their copies at Annex P-
7 P-14 are quashed. The case is remanded. Fresh service is ordered to be
done by the Family Court on the petitioner at the correct address by following
the due process of the law. I do not propose to bind the parties to a date of
appearance fixed by this Court, as then, the fatal flaw would continue to run its
length on the judicial record of the executing Court, which is presently being
erased from the file of the Court below. After appearance, the petitioner will
have a right to contest the proceedings without fear. The rights of the
respondents shall stand preserved and open to be pressed in their applications.
This order has nothing to do with the successor Family Court to whom the
matter will be put up, who shall remain uninfluenced by anything said in this
order for him to start with a clean slate and an open mind and do whatever that
law dictates.
49. The learned District Judge, Ludhiana shall transfer the matter to
another learned Family Court in Ludhiana [other than the two noticed in this
order to save the other one from any inter-personal embarrassment] as also to
maintain the present judge’s personal wish in his order dated 23.11.2019
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seeking transfer of case, in order to maintain neutrality in decision-making in
the Family Court well versed with the law taking fair and proper steps by the
transferee court in the execution proceeding, after issuing fresh process to the
petitioner at the correct address to be supplied by the present contesting
respondents. It is made clear that whatever is found due according to decree
must be paid in accordance with law.
50. The Learned Registrar General of this Court shall get examined
the conduct of the Judicial Officer, who passed the impugned orders, on the
administrative side as is deemed fit and proper and to take measures including
withdrawal of matrimonial work from him, including never to be posted again
in a Family Court as he appears to lack the judicial temperament and the
desired approach. Or other such steps may be taken as are found desirable.
51. Note: If the officer requests a personal hearing from me through
proper channel, I would have no hesitation in doing so, as I have not heard him
before passing the order and relied only on his work as is apparent on the face
of the record presented before me, to which the caveator raised no objection as
to its authenticity. If he has any plausible written explanation to offer, such that
I could not foresee or the remarks are unjustified, he can always be directed for
a chamber or in camera court room hearing till I hold office. I assure him of a
patient, unprejudiced and unbiased hearing for a fair decision on his
explanation, if worthy of acceptance.
(RAJIV NARAIN RAINA)
JUDGE
05.03.2020
Vimal
Whether speaking/reasoned: Yes
Whether reportable: Yes
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