SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Rajni Gupta vs Vikas Gupta on 14 November, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 31.10.2019
Date of Decision : 14.11.2019

+ CM(M) 1361/2019 CM No. 41114/2019

RAJNI GUPTA ….. Petitioner
Through: Mr.Ashish Aggarwal, Ms.Reena
Jain, Mr.Vineet Malhotra and
Ms.Shefali Kishore, Advs.

versus

VIKAS GUPTA ….. Respondent
Through: Ms.Geeta Luthra, Sr. Adv.with
Mr.Altmish Siddiki and
Ms.Kamakshi Gupta, Advs.
CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA

1. By the present petition the petitioner challenges the order dated
21.08.2019 passed by the learned Judge Family Court, District Shahdara,
Karkardooma, Delhi in HMA No.166/2017, titled Dr.Vikas Gupta v.
Dr.Rajni Gupta. The Impugned Order dismisses the application filed by
the petitioner seeking to produce additional documents as also examine
various witnesses. The Impugned Order also appoints a Local
Commissioner to record the evidence of the petitioner.

2. The learned senior counsel for the respondent has raised a
preliminary objection on the maintainability of the present petition. She
contends that against the Impugned order an appeal under Section 19(1)

CM(M) 1361/2019 Page 1
of the Family Courts Act, 1984 (hereinafter referred to as the ‘Act’) is
maintainable. This is disputed by the learned counsel for the petitioner.

3. Section 19 of the Act is reproduced hereinbelow:

“19. Appeal.-

(1) Save as provided in sub-section (2) and notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5
of 1908) or in the Code of Criminal Procedure, 1973 (2 of
1974) or in any other law, an appeal shall lie from every
judgment or order, not being an interlocutory order, of a
Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the
Family Court with the consent of the parties or from an order
passed under Chapter IX of the Code of Criminal Procedure,
1973 (2 of 1974):

Provided that nothing in this sub-section shall apply to
any appeal pending before a High Court or any order passed
under Chapter IX of the Code of Criminal Procedure 1973 (2
of 1974) before the commencement of the Family Courts
(Amendment) Act, 1991.

(3) Every appeal under this section shall be preferred within
a period of thirty days from the date of the judgment or order
of a Family Court.

(4) The High Court may, of its own motion or otherwise, call
for and examine the record of any proceeding in which the
Family Court situate within its jurisdiction passed an order
under Chapter IX of the Code of Criminal Procedure, 1973
(2 of 1974) for the purpose of satisfying itself as to the
correctness, legality or propriety of the order, not being an
interlocutory order, and, as to the regularity of such
proceeding.

(5) Except as aforesaid, no appeal or revision shall lie to any
court from any judgment, order or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard
by a Bench consisting of two or more Judges.”

CM(M) 1361/2019 Page 2

4. Sub-Section 1 of Section 19 of the Act provides that an appeal
shall lie from every judgment or order, not being an interlocutory order,
passed by a Family Court to the High Court, both on facts and law.

Therefore, what is to be determined is whether the Impugned Order
challenged in the present petition can be termed as an interlocutory order
within the meaning of Section 19(1) of the Act.

5. A Division Bench of this Court in its judgment dated 13.09.2012
passed in FAO 388/2012, titled Manish Aggarwal v. Seema Aggarwal
Ors., has considered the scope and ambit of Section 19 of the Act and has
held as under:

“26. We, thus, conclude as under:

i. In respect of orders passed under Sections 24 to 27 of the
HM Act appeals would lie under Section 19 (1) of the said Act
to the Division Bench of this Court in view of the provisions of
sub-section (6) of Section 19 of the said Act, such orders being
in the nature of intermediate orders. It must be noted that sub-
section (6) of Section 19 of the said Act is applicable only in
respect of sub-section (1) and not sub-section (4) of Section 19
of the said Act.

ii. No appeal would lie under Section 19 (1) of the said Act
qua proceedings under Chapter 9 of the Cr.P.C. (Sections 125
to 128) in view of the mandate of sub-section (2) of Section 19
of the said Act.

iii. The remedy of criminal revision would be available qua
both the interim and final order under Sections 125 to 128 of
the Cr.P.C. under sub-section (4) of Section 19 of the said Act.
iv. As a measure of abundant caution we clarify that all orders
as may be passed by the Family Court in exercise of its
jurisdiction under Section 7 of the said Act, which have a
character of an intermediate order, and are not merely
interlocutory orders, would be amenable to the appellate
jurisdiction under sub-section (1) of Section 19 of the said
Act.”

CM(M) 1361/2019 Page 3

6. The above view was affirmed by another Division Bench of this
Court in its judgment dated 01.10.2019 passed in MAT. APP.(FC)
211/2017, titled Colonel Ramesh Pal Singh v. Sughandhi Aggarwal.

7. In view of the above dicta, it would have to be considered if the
Impugned Order can be termed as an ‘intermediate’ or as an
‘interlocutory’ order.

8. In Shah Babulal Khimji (supra), the Supreme Court even while
considering the scope of ‘judgment’ under the Letters Patent Act, held as
under:

“In the course of the trial, the Trial Judge may pass a
number of Orders whereby some of the various steps to be
taken by the parties in prosecution of the suit may be of a
routine nature while other orders may cause some
inconvenience to one party or the other, e.g., an order
refusing an adjournment, an order refusing to summon an
additional witness or documents, an order refusing to
condone delay in filing documents, after the first date of
hearing an order of costs to one of the parties for its default
or an order exercising discretion in respect of a procedural
matter against one party or the other. Such orders are
purely interlocutory and cannot constitute judgments
because it will always be open to the aggrieved party to
make a grievance of the order passed against the party
concerned in the appeal against the final judgment passed
by the Trial Judge.” (Emphasis added)

9. Therefore, the Supreme Court held that an order refusing
permission to file an additional document on record or to summon
additional witnesses would be an interlocutory order. There is no reason
not to follow the same view for considering the scope of exclusion in

CM(M) 1361/2019 Page 4
Section 19(1) of the Act. Clearly, the Impugned Order would, therefore,
not be appealable under Section 19 of the Act. I find no merit in the
preliminary objection raised by the learned senior counsel for the
respondent.

10. As far as the merit of the petition is concerned, few dates would
first require specific mention: The marriage between the parties was
solemnized on 22.02.1992. They have been blessed with two children.
The divorce petition was filed by the respondent on 28.11.2014. While
the issues were framed on 06.04.2018, the written statement filed by the
petitioner formally came on record only on 15.05.2018. In the meantime,
by an order dated 23.12.2016 passed by this Court in CM (M) 1379/2016,
the learned Trial Court had been directed to expedite the trial of the
petition.

11. By an order dated 13.07.2018, the learned Trial Court rejected the
respondent’s application to take on record additional documents. This
was challenged by the respondent before this Court by way of MAT
APPL. (F.C) 273/2018, titled Mr. Vikas Gupta vs. Rajni Gupta. The
said appeal was disposed of by a consent order, directing as under:-

“It is agreed that the wherever the stand taken in the
replication is inconsistent with the stand taken in the
divorce petition, the same would be considered by the
Family Court at the time of final hearing. As far as the
documents are concerned, the documents will not be
exhibited unless the same are proved as per law. Liberty, as
prayed, granted to the appellant to summon witnesses to
prove such documents sought to be relied in accordance
with law.”

CM(M) 1361/2019 Page 5

12. It is of some relevance to note that in the meantime, respondent’s
evidence had continued and was recorded between May 2018 to
17.08.2019, with the respondent examining himself and ten additional
witnesses.

13. It is at that stage that the petitioner filed an application seeking to
bring on record additional documents as also file a list of witnesses.

14. In the application, the ground urged by the petitioner for not
producing these documents at an earlier stage was stated as under:-

“3. That from the last one year the Respondent was also
under great pressure for cross examining the Petitioner
and during the cross examination of the Petitioner, the
Respondent also tried to search all her documents to
disprove the case of the Petitioner and with great
difficulties she could found some of the documents and
provided her counsel to file the same on record.
xxxxxx

6. That now after getting free from the proceedings of the
Ld. L.C. the Respondent got some time to trace all these
documents from different places and is now filing the
same on record and is also exhibiting them in her
evidence by way of affidavit.”

15. As far as the relevance is concerned, the petitioner further stated as
under:-

“5. That the documents which the Respondent is filing on
record are related to her education, work experience with
different institutions, Entrance Examinations, Medical
papers of Shivam Surgical Maternity Centre,
conference invitations which she attended, M.A M.B.A
Degree of her father, some marriage photographs. It is
pertinent to mention here that all these documents could
not be filed as all these documents were lying here and
there and the Respondent could not arrange them firstly

CM(M) 1361/2019 Page 6
as she was under deep depression and was rigorously,
day and night was attending the proceedings before the
Ld. L.C. after her office hours even on holidays. The copy
of the documents is being filed herewith as Annexure-A
(Colly), and the original Photographs are filed herewith
as Annexure-B (Colly).”

16. The learned Trial Court, however, dismissed the said application
by way of its Impugned Order inter alia giving the following reason:-

“Respondent also moved an application u/s 151 CPC for filing
additional documents from internal page no. 5 to 28 annexed
with the application. It is alleged that respondent went under
deep depression due to the act of the petitioner as well as due to
pressure of the evidence led by him and could not file the
documents earlier. It is not in dispute that most of the
documents annexed with the present application were already
in the knowledge and possession of the respondent. Even if
some documents were not in her possession, then also she had
not filed any list of reliance to inform the court with whom those
documents were lying which she could not produce before
framing of issues. However, no such list of reliance was filed so
these new documents cannot be taken on record. The grounds
given in the application that due to depression and pressure,
she could not search the documents is not believable because
she admittedly used to attend her office, different seminars,
used to visit outstation etc. and such conduct of the respondent
create doubt about her theory that she was under depression.
No date, time and place is given when she found these
documents after great difficulties through in depth search.
Moreover, it is not disclosed in the application how and in
which manner these document are relevant to the defence of the
respondent. The marriage between the parties is not in dispute
so there is no need to file the photographs of the marriage.

There is nothing in the application to show how the MBA and
MA degree of the father of the respondent is relevant to decide
any controversy regarding the matrimonial dispute of the
parties. How the documents pertaining to education, work
experience, conferences attended by the respondent, her place

CM(M) 1361/2019 Page 7
of posting, leave record etc. are relevant to any disputed fact is
also not disclosed in the application. Similarly, how RTI reply
obtained by some third person regarding non availability of
indoor facilities in some dispensaries is necessary to be proved
in defence is also not explained in the present application. I am
of the opinion that on the basis of the vague and general
averments without any solid ground and explanation itself does
not entitle the respondent to file these new documents which
otherwise also not concerned with the controversy in question.
Hence, this application is liable to be rejected on these
grounds.”

17. As far as the additional witnesses were concerned, the learned
Trial Court held as under:-

“Vide order dated 06.04.2018, the respondent was also given
direction to file the list of witnesses within 10 days but that
order was not compiled with by her. Now she has filed a list of
witnesses mentioning the name of 20 witnesses to be examined
in her defence on the last date of hearing only. The witnesses at
Sr. No. 3 to 20 are the official witnesses who are to prove
record pertaining to service, qualification etc. of the
respondent. If the list of witnesses is compared with the
application u/s 151 CPC, then it reveals that almost all the
official witnesses have to prove the documents which are not
allowed to be taken on record. When the application of the
respondent u/s 151 CPC for filing the additional documents is
already rejected above, then now there arises no question to
summon these officials witnesses. Hence, the request made by
the respondent to examine witnesses from Sr. No. 3 to 20 is
rejected. Witness at Sr. No. 2 is the real brother of the
respondent and he will prove the defence of the respondent so I
am permitting only him to be examined by the respondent
alongwith respondent herself through LC despite the fact that
the list of witness was not filed in time.”

CM(M) 1361/2019 Page 8

18. A reading of the averments in the application as also findings of
the learned Trial Court would show that the petitioner had not given any
cogent reason for not producing these documents at an earlier stage.

Infact, the ground urged by the petitioner in her application was
extremely vague and unbelievable. As far as the additional witnesses
were concerned, the learned Trial Court had allowed one additional
witness to be examined, that is, the brother of the petitioner, while
holding that the other witnesses were only official witnesses who were to
prove the additional documents and as the additional documents
themselves have not been taken on record, these witnesses were not
relevant to be examined.

19. The learned counsel for the petitioner has urged that as the
respondent was allowed to bring on record the additional documents by
the order dated 07.01.2019 passed by this Court in the appeal filed by the
respondent, there was no reason for the petitioner herein to be not given
the same right.

20. I cannot accept the above argument of the petitioner. As noted
hereinabove, the order dated 07.01.2019 was passed with the consent of
the petitioner. It is also brought to my notice that the documents that were
allowed to be placed on record by the said order, had been filed
alongwith replication which was also allowed to be taken on record
subject to the condition that if any averment made therein was
inconsistent with the stand of the respondent in the divorce petition, the
same would be considered by the learned Family Court at the time of
final hearing. Further, the documents were directed not to be exhibited

CM(M) 1361/2019 Page 9
unless the same were proved as per law. In any case, this is not a matter
of claiming parity. The petitioner has to stand on her own legs.

21. Section 10(1) of the Act makes the provisions of the Code of Civil
Procedure, 1908 (CPC) applicable to the Suits and proceedings pending
before a Family Court. Order 8 Rule 1A of the CPC requires the
Defendant to produce in Court any documents that it seeks to rely upon
alongwith the written statement. If the document is not in possession or
power of the Defendant, the Defendant has to state, wherever possible,
person in whose possession or power it is. Order 8 Rule 1A(3) of the
CPC states that where the document is not produced alongwith the
written statement, the same shall not be received in evidence without the
leave of the Court. It is only where the Defendant satisfies the Court that
after exercise of due diligence, the document that is sought to be placed
on record at a later stage was not within his knowledge or could not be
produced at an earlier stage, that the Court may permit the same to be
brought on record.

22. One of the objectives of the Act is to secure speedy settlement of
disputes relating to marriage and family affairs. In the present case, as
noted hereinabove, the petition seeking divorce has been filed in
November 2014 and far back in December 2016, this Court had directed
the learned Trial Court to expedite the disposal of the petition. Not only
this, the respondent has been examined alongwith other witnesses that he
had produced in support of his claim. To allow the petitioner at this stage
to file additional documents would be to reopen the trial of the case and
set it back in time. It is not the case of the petitioner that the documents
that are now sought to be placed on record were not within her power and

CM(M) 1361/2019 Page 10
control or could not have been placed on record by exercise of due
diligence. As noted hereinabove, the main plank of the petitioner is one
of seeking parity as if this is a matter of Article 14 of the Constitution of
India. The petitioner further urged that these documents became
necessary to be produced due to certain answers given by the respondent
in his cross-examination. This cannot be accepted as a sufficient reason
for the petitioner to be allowed to file additional documents on record at
this belated stage.

23. It is also to be noted that this Court has been asked to interfere with
the Impugned Order in exercise of its power under Article 227 of the
Constitution of India. Such power has to be exercised sparingly and can
be exercised only in case of grave dereliction of duty or flagrant violation
of law or an error of jurisdiction or incase where grave injustice would be
done unless the High Court interferes. It is not an appellate or revisional
power and therefore, cannot be exercised to correct an error of fact or of
law, not being one which is apparent on the face of the record. Such
power cannot be used to interfere with the intra vires exercise of a
discretionary power, unless it is arbitrary or capricious. In the present
case, applying the above test, no ground for interference with the
Impugned Order is made out.

24. As far as the additional witnesses are concerned, as noted by the
learned Trial Court, the witnesses were to prove the documents sought to
be produced. Production of such document having been denied, such
witnesses, therefore, become irrelevant to the case.

25. The other challenge of the petitioner is to the appointment of a
Local Commissioner for recording evidence. The learned counsel for the

CM(M) 1361/2019 Page 11
petitioner submits that the petitioner would have no objection if the Local
Commissioner recording the evidence is changed by this Court. I do not
find any ground having been made out in the petition for seeking such
change. The Local Commissioner acts as an officer of the Court and
therefore, cannot be changed at whims and fancies of the parties.

26. In view of the above, I do not find merit in the present petition.
The same is dismissed. The parties shall bear their own cost.

NAVIN CHAWLA, J
NOVEMBER 14, 2019/Arya

CM(M) 1361/2019 Page 12

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation