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Sampati vs Dilip Choudhary on 30 March, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5555 / 2016
Sampati W/o Dilip Choudhary, D/o Sh. Maniram Godara, aged 33
years, B/c Jat (Choudhary), R/o-1-D-5, Jahawar Nagar, Shri
Ganganagar (Raj.) at present R/o -Village-Beenjbhayla, Distt. Shri
Ganganagar(Raj.)

—-Petitioner
Versus
Dilip Choudhary S/o Sh. Prehlad Ram Choudhary, B/c Jat, R/o
Village-Jeerthi (Subhash Nagar), Teh. Distt. Sikar (Raj.)

—-Respondent
_____________________________________________________
For Petitioner(s) : Mr.P.C.Solanki
For Respondent(s) : Mr.B.L.Choudhary
_____________________________________________________
HON’BLE MR. JUSTICE SANGEET LODHA
Order
30/03/2017

1. This petition is directed against order dated 4.4.16 of Judge,

Family Court, Sri Ganganagar, whereby an application preferred by

the petitioner raising objection against the certain documents

produced by the respondent alongwith an additional affidavit

without prior permission of the court being taken on record,

stands rejected.

2. The relevant facts are that petitioner and respondent entered

into marriage on 16.2.10. The respondent filed a petition seeking

divorce under Section 13 of Hindu Marriage Act, 1955 (for short

“the Act of 1955”) before the Family Court, Sikar on 17.5.14. The

respondent filed his own affidavit on 22.12.14. In the meantime,
(2 of 6)
[CW-5555/2016]

the petitioner filed an application under Section 9 of the Act of

1955 before the Family Court, Sri Ganganagar on 22.9.14. The

petitioner preferred a transfer petition seeking transfer of the

Divorce Petition preferred by the respondent as aforesaid from the

Family Court, Sikar to Family Court, Sri Ganganagar, which was

allowed by Jaipur Bench of this court vide order dated 3.2.15

passed in S.B.C.Transfer Petition No.86/14.

3. After the transfer of the Divorce Petition as aforesaid, the

petitioner filed a reply to the Divorce Petition on 18.8.15. The

respondent filed yet another affidavit on 19.12.15. The respondent

also filed a reply to the petition under Section 9 of the Act of 1955

preferred by the petitioner. The petitioner preferred an application

for consolidation of the proceedings under Section 9 and Section

13 of the Act of 1955, which was allowed by the Family Court, Sri

Ganganagar vide order dated 11.1.16 and the proceedings of both

the petitions were consolidated. After consolidation of both the

petitions, on 25.1.16 the respondent sought time to file affidavit in

support of consolidated petitions, which was allowed . On the next

date of hearing i.e. 6.2.16, the respondent filed his own affidavit

and the affidavits of two witnesses as also certain documents,

which were taken on record. In view of the consolidation of the

petition, the respondent also filed an application under Order XIV

Rule 5 for framing the issues afresh. On 10.2.16 while allowing the

application preferred by the respondent as aforesaid, the Family

Court framed the issues. On 5.3.16, the petitioner was granted an

opportunity to cross examine the respondent on the cost of

Rs.3,000/-. On the next date of hearing, the petitioner preferred
(3 of 6)
[CW-5555/2016]

three applications before the Family Court including an application

under Section 151 CPC objecting the documents produced by the

respondent on 6.2.16 being taken on record. The application

preferred stands rejected by the Family Court by the order

impugned. Hence, this petition.

4. Learned counsel appearing for the petitioner contended that

as per Order VII Rule 14 (3) CPC, a document which ought to be

produced in the Court by the plaintiff when the plaint is presented,

or to be entered in the list to be added or annexed to the plaint

but is not produced or entered accordingly shall not be without the

leave of the Court be received in evidence on his behalf at the

hearing of the suit and therefore, the Family Court has seriously

erred in taking the documents on record in defiance of the

mandate of provisions of Order VII Rule 14(3) CPC. Learned

counsel submitted that the documents produced are not even

mentioned in the petition filed and thus, the same could not have

been permitted to be taken on record. Learned counsel urged that

documents produced beyond the pleadings cannot be admitted in

evidence and thus, the order impugned passed by the Family

Court is ex facie erroneous and deserves to be set aside.

5. On the other hand, the counsel appearing for the respondent

submitted that throughout the proceedings, the petitioner is

adopting delaying tactics which is apparent from bare perusal of

the order sheets placed on record. Learned counsel submitted that

after consolidation of the petitions, the respondent was well within

his right to file the fresh affidavit alongwith documents and thus,

the Family Court was absolutely justified in taking the documents
(4 of 6)
[CW-5555/2016]

produced on record. Learned counsel submitted that the Family

Court is empowered to receive as evidence any document which

may in its opinion assist it to deal effectually with the dispute

whether or not such documents are otherwise relevant or

admissible under the Indian Evidence Act, 1872 and thus, the

order impugned passed by the Family Court cannot be faulted

with. Learned counsel urged that in any case, it is always open for

the petitioner to question the admissibility of the documents in

evidence before the Family Court and thus, the objection raised by

the petitioner against the documents being taken on record, was

devoid of any merit and the same has rightly been rejected by the

Family Court.

6. I have considered the submissions of the learned counsels

for the parties and perused the material on record.

7. It is to be noticed that subsequent to the affidavit earlier

filed by the respondent, the proceedings of both the petitions; one

preferred by the petitioner under Section 9 of the Act of 1955 and

another by the respondent under Section 13 of the Act of 1955

were consolidated and therefore, the time sought by the petitioner

for filing the affidavit afresh was allowed by the Family Court on

25.1.16 and accordingly, the affidavits and the documents filed by

the petitioner on the next date of hearing were taken on record. It

is true that as per mandate of Order VII Rule 14(3) CPC, if any

document or copy thereof could not be filed with the plaint, it

could be taken on record subsequently only with the leave of the

Court. But then, as per provisions of sub-section (1) of Section 9

of the Family Courts Act of 1984 (for short “the Act of 1984”), the
(5 of 6)
[CW-5555/2016]

provisions of CPC are applicable to the proceedings before the

Family Court subject to other provisions of the Act of 1984 and the

rules made thereunder. It is to be noticed as per provisions of

Section 14 of the Act of 1984, the Family Court may receive as

evidence any report, statement, documents, information or the

matter that may in its opinion assist it to deal with effectually with

a dispute, whether or not the same would be otherwise relevant or

admissible under the Evidence Act. That apart, by virtue of

provisions of sub-section (3) of Section 9, nothing contained in

sub-section (1) or sub-section (2) of Section 9 prevents 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 one party and

denied by other. In this view of the matter, in the considered

opinion of this court, taking into consideration the facts and

circumstances of the case, where both the petitions preferred by

the rival parties have been consolidated on the request made by

the petitioner herein, the discretion exercised by the Family Court

in taking the affidavits and certain documents produced by the

respondent on record does not warrant interference by this court

in exercise of its supervisory jurisdiction. Needless to say that the

documents produced by the respondent having been taken on

record, the petitioner cannot be denied an opportunity to produce

the evidence in rebuttal. Further, the petitioner is not precluded

from raising the objection regarding admissibility of the

documents produced in evidence on account of the same being

beyond the pleadings or otherwise inadmissible in evidence.

(6 of 6)
[CW-5555/2016]

8. For the aforementioned reasons, the writ petition is

dismissed with the observations as above. No order as to costs.

(SANGEET LODHA)J.

Aditya/

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