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Sarbjit Kaur Johal & Another vs Gurmit Singh Johal on 15 May, 2019

CR No. 4878 of 2018 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CR No. 4878 of 2018 (OM)
Date of Decision: 15.05.2019

Sarabjit Kaur Johal and another
……Petitioners

versus
Gurmit Singh Johal
………Respondent

CORAM: HON’BLE MR. JUSTICE AMOL RATTAN SINGH

Present: Mr. Parveen K. Kataria, Advocate,
for the petitioners.

*****

AMOL RATTAN SINGH, J. (ORAL)

By this petition, the petitioners challenge the order passed by the

learned Additional Civil Judge (Senior Division), Moga, dated 15.09.2015, as

also the order passed by the learned Additional District Judge, Moga, dated

26.02.2018, by which the application filed by them under Order 39 Rules 1

and 2, has been dismissed.

2. The petition had been filed by two petitioners, i.e. petitioner no.1

Sarabjit Kaur Johal and her daughter, Tajinder Kaur Johal (petitioner no.2).

However, as recorded in the order dated 07.03.2019, Mr. Kataria,

learned counsel appearing for the petitioners, had submitted that the suit in

which the impugned orders have been passed, had been dismissed in default

by the trial court, with only petitioner no.2, i.e. Tajinder Kaur Johal, having

filed an application before that court seeking restoration of the suit.

He had further stated on that date that the mother of petitioner

no.2 no longer wanted to pursue the suit.

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That being so, obviously this petition qua the first petitioner,

Sarabjit Kaur Johal, had been rendered infructuous, though it is not

specifically observed to that effect in the said order.

Consequently, it is formally stated now to the effect that the suit

in which the order impugned in this petition has been passed, not being

pursued by petitioner no.1, this petition has been rendered infructuous qua her

and is disposed of as such (qua her).

3. As regards the remaining petitioner, i.e. Tajinder Kaur Johal, the

impugned orders have been passed in a petition before the learned trial Court,

filed under the provisions of the Hindu Adoption and SectionMaintenance Act, 1956,

with the petitioner seeking maintenance from the respondent, who is stated to

be her father and the husband of her mother.

Vide the application under Order 39 Rules 1 and 2, the

respondent was sought to be restrained from selling any property belonging to

him, during the pendency of the petition.

In the reply filed by the respondent herein to that petition, it was

stated that the petitioners had concealed fundamental facts, including that a

petition bearing no. F-14358 had been instituted by the present petitioners’

mother, Sarabjit Kaur, against the respondent herein, in a court in British

Columbia, Canada, with eventually a divorce granted to the parties to that

petition by the Supreme Court of British Columbia.

While dissolving the marriage, it was held by that Court that the

respondent herein would pay C$ 300/- to Sarabjit Kaur as maintenance for the

present petitioner, i.e. his daughter.

The respondent had further contended that it had also been kept

concealed that the present petitioners’ mother also owned a house in Surrey,

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Canada, worth C$ 8,79,000.

Hence, it was contended by the respondent herein (before the

learned courts below), that the present petitioner and her mother were affluent

people and had simply filed the application and the petition to extort money

from him.

4. Having considered the aforesaid pleadings in the application, the

learned trial Court (in the present lis), observed that though the applicant-

petitioners were claiming to be in financial distress to the extent that they

were unable to even affix the court fee, that contention made by them in an

application filed under Order 33 of the CPC (seeking to be declared as

indigent persons), was rejected, on the ground that in fact eventually the

mother of the present petitioner had to concede that she did own the

aforementioned house in Surrey. (That application was dismissed also on the

ground that no enquiry as to the financial status of the petitioner and her

mother could be conducted, they being residents of Canada).

She had however qualified that acknowledgment by stating that

she had taken a huge loan in the year 2006 to purchase the house, which still

stood mortgaged. However, on that contention in fact, the learned trial Court

observed that it was simply an attempt of the applicants to ‘wriggle out of an

embarrassing situation’.

It was further recorded by the trial Court that even in terms of a

Special Power of Attorney executed by the present petitioner and her mother

on 04.01.2012, it was admitted that they had landed property in village

Charik, Tehsil and District, Moga, as also in Village Saner, Tehsil Zira,

District Ferozepur, with deposits made with finance companies at Zira, and in

banks in Moga as also in Charik.

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5. After recording the aforesaid, the learned trial Court, in the

impugned order, has further recorded that even the decree of divorce passed

on 12.02.1999 by the Supreme Court of British Columbia, Canada, had never

been challenged by the mother of the present petitioner and therefore in any

case she could not claim to be the wife of the respondent (so as to claim any

maintenance from him).

It was again noticed that in any case C$300 had earlier been

ordered to be paid to the present petitioner, i.e. the daughter of the respondent,

by the courts in British Columbia.

Hence, the application of the petitioner and her mother was

dismissed.

6. The appellate court, after referring to the respective stands of the

parties, enumerated the following facts which it recorded that the plaintiff-

applicants had withheld from the court:-

“(1) Applicant Sarabjit Kaur Johal had already been married to
Jaspal Singh Dhillon but she divorced him on 17.03.1989
to solemnize her second marriage with the defendant but
she concealed this essential fact;

(2) Although, she pleaded as if she is not aware of divorce
granted by the Canadian Court but it is a fact that their
marriage was dissolved by a decree of divorce on
14.12.1996 by a competent court of British Columbia.
(3) As admitted by the plaintiff/applicant no.1 in her cross
examination she had not challenged the said decree till date
which calls her bluff when she alleges that the said decree
is illegal and not binding upon her rights especially when
she admits that her marriage with Jaspal Singh Dhillon was
dissolved through the Canadian Court as per Canadian law.
(4) Her father Sadhu Singh Brar died in the year 2014. Upon
his death she as well as her brother inherited Sadhu Singh

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Brar and although she tried to conceal her bank accounts
by replying that she maintains only one bank account with
HDFC bank wherein she has deposited Rs.7000/- but on
being subjected to a tactful cross examination she had to
admit that her father Sadhu Singh Brar was operating an
account maintained with Satluj Gramin Bank Langiana
Nawan in which Sadhu Singh appointed her as his nominee
and that from the said account she withdrew Rs.7 lacs to
transfer the said money in his HDFC bank account
maintained at Baghapurana.

(5) Admittedly, when she brought the present petition though
she was in India but in order to pursue her petition she
attorned Shri Prem Sharma son of Nand Lal as her
attorney. The copy of said special power of attorney is
contained on the record which makes an interesting reading
as it enlists not only immovable properties owned by her
but also the liquid cash deposited with various finance
companies. In her said special power of attorney she has
mentioned that she has interest in landed property situated
at Village Charik, Tehsil and District Moga, at Village
Saner, Tehsil Zira, District Ferozepur and also in deposits
with Finance Companies at Zira, she has deposits with
Banks at Moga as well as at Village Charik.

In contrast when she brought petition she pleaded
that except for wearing apparels and few articles none of
the applicants own any immovable or immovable
property and none of the applicants possess any article
having value more than Rs.10,000/- each.

6. Not only the above enlisted properties which are situated in
India, she also owns a palatial house at Canada. In her
cross examination she disclosed that she is residing at
14189 72 Avenue, Surry, BC Canada which is owned by
her. Respondent has estimated its worth to be 87,9000/-
dollars which comes to Rs.52,74,000/- in Indian Rupees.

7. In her cross examination she also disclosed that she also

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owns a convertible Mercedes car though she feigned
ignorance regarding its value.

8. Every Canadian citizen is required to furnish an
information of income and expenditure every year to the
Canadian Revenue Agency. On being asked plaintiff
Sarabjit Kaur disclosed that for the past 20 years she was
submitting the said information but on being asked though
she mentioned that her monthly income is 2000 dollars but
she did not produce copy of the said information which
could have been a clincher.”

7. Having recorded the above, the appellate court also found no

reason to differ with the order passed by the learned trial court and

consequently the appeal (in respect of the application filed under Order 39

Rules 1 and 2 CPC), was dismissed with costs throughout.

8. Before this court, learned counsel for the petitioner submits that

as regards the C$ 300 ordered to be paid by the Canadian courts, that was only

till the time that the petitioner attained the age of 25 years, and consequently,

thereafter, the said maintenance has stopped.

Upon query as to whether any petition/application has been filed

by the petitioner before the Canadian courts to continue such maintenance on

any ground (especially any “medical ground”), he submits that no such

application/petition has been filed.

He however further submits that as a matter of fact the properties

referred to by the learned trial Court (in Village Charik, District Moga, and

Village Saner, District Ferozepur), are actually those that belong to the

respondent, with the trial Court having wrongly assumed that they belong to

the petitioner and her mother. (However, he has not been able to refute that

even the appellate court found that she had mentioned those properties in the

instrument appointing one Prem Chand as her attorney).

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Having considered the matter, even if that statement of learned

counsel is to be accepted at face value (as regards the aforesaid property), it is

not in dispute at all that the petitioner and her mother are actually resident of

Canada with, in all probability, them being Canadian citizens (which is a

question that Mr. Kataria is not answering directly, though that was also one

of the contentions of the respondent, as noticed by the learned appellate

court).

In fact, even the contention that the properties in Districts Moga

and Ferozepur actually belong to the respondent, would have to be seen to be

a statement loaded with doubt, because, as already noticed, even the appellate

court, in clause 5 of the ‘number of concealments’ it states that the plaintiffs

made, recorded a finding that in the instrument of power of attorney executed

by the present petitioners’ mother in favour of Prem Sharma, liquid assets with

various financial companies, as also her landed property, in the aforesaid two

Districts, were described.

Hence, in view of the entire situation, including all the

concealments found by the appellate court, to have been made by the present

petitioner and her mother, and further, they definitely not being permanently

resident in India (except perhaps during the pendency of the suit filed), and

they having taken their remedy before Canadian courts, including on the issue

of maintenance, I do not see any infirmity at all in the impugned order passed

by the learned trial Court.

10. Of course, if the petitioner had been residing in India throughout

and had been abandoned by her father, i.e. the respondent herein, who is a

resident of Canada, the matter would have been entirely different; as then she would

be entitled to even interim maintenance by him. That obviously is not the case,

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because if it were so, she and her mother would not have knocked at the doors

of the courts at British Columbia, Canada, seeking maintenance there. Hence,

such maintenance having stopped upon the petitioner attaining 25 years of

age, she, in the opinion of this court, cannot now seek interim maintenance

from the respondent, during the pendency of her suit.

11. Consequently, without making any further comment on the merits

of the case of the petitioner, as is still pending before the trial Court, this

petition is dismissed.

Naturally, if the learned trial court, upon evidence led before it,

comes to the conclusion that the petitioner is in fact entitled to maintenance

on any ground on the basis of such evidence led, all that has been observed by

this court hereinabove in relation to the relief claimed under Order 39 Rules 1

and 2 of the Code of Civil Procedure, shall not be binding on that court to

record a finding to the contrary.

May 15, 2019 (AMOL RATTAN SINGH)
nitin/dinesh JUDGE

Whether speaking/reasoned Yes
Whether Reportable Yes

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