IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.03.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Appeal Suit No.816 of 2005
T.Subramaniam ... Appellant
vs.
1. Santhamani
2. Minor S.Mohan
rep. by guardian/mother
Santhamani ... Respondents
Prayer: Appeal filed under Section 96 of C.P.C. against the Decree and Judgment made in O.S.No.18 of 2000 dated 24.05.2004 on the file of Family Court, Coimbatore.
For Appellant : Mr.N.Mani
For Respondents : Mr.S.Senthilkumar
JUDGMENT
R.BANUMATHI,J.
Aggrieved by granting maintenance of Rs.500/- per month to each of the Plaintiff from the date of Plaint till the life time of 1st Plaintiff and till attaining majority of 2nd Plaintiff or further orders, husband filed this appeal. For convenience, wife Santhamani is referred as 1st Plaintiff and husband Subramaniam is referred as Defendant in this Judgment.
2. Case of Plaintiffs is that 1st Plaintiff and Defendant got married in the year 1991 and out of their wedlock, 2nd Plaintiff was born on 26.12.1999. While living at Kumaran Nagar, Defendant began to lead a wayward life and often quarreled with the 1st Plaintiff by demanding 20 sovereign of gold and Rs.10,000/- cash. Defendant had also demanded name transfer of the house site purchased in the name of 1st Plaintiff by her father Muthusamy Chettiar. Case of Plaintiffs is that Defendant became very hostile not only towards 1st Plaintiff but also towards his son 2nd Plaintiff and treated them in a very cruel manner not even providing proper food and milk to 2nd Plaintiff. According to Plaintiffs, in order to safeguard the life of Plaintiffs during the year 1992, 1st Plaintiff's sister took both the Plaintiffs to their parental home at Varadharajapuram for time being. Afterwards, the Defendant never visited the Plaintiffs or tried to bring them back to Pollachi for peaceful living. From that date onwards the Defendant deserved the Plaintiffs and Plaintiffs are living separately. It is averred that the efforts taken by the 1st Plaintiff to join with the Defendant ended vein. Further case of Plaintiffs is that 1st Plaintiff had given Police complaint to All Women Police Station, Pollachi for peaceful living and the Police enquired the matter. From the enquiry, it reveal that Defendant has got married with his distant relative who is residing at Kerala as second wife. Now the 1st Plaintiff is residing with her parents at Varatharajapuram with great difficulty. In order to meet out the educational expenses to 2nd Plaintiff and necessities to Plaintiffs, they required minimum Rs.2000/- per month. Case of Plaintiffs is that Defendant is working as Office Assistant in Sub-Registrar's Office at Annamalai and earning Rs.3,500/- per month. Apart from his salary, Defendant also receiving rent of Rs.3000/- per month from the house rented to third parties. Plaintiffs issued legal notice on 04.11.1997 and by setting out false allegation, Defendant issued reply notice on 17.11.1997.
3. Resisting the suit, Defendant filed written statement contending that he never demanded any money from the 1st Plaintiff alleged in the Plaint and that the 1st Plaintiff who went to her parents house on her own and did not return back to the matrimonial home. According to the Defendant, 1st Plaintiff never cared the aged mother of the Defendant. Case of Defendant is that inspite of efforts and panchayat, 1st Plaintiff did not return back to the matrimonial home. Hence, Defendant issued legal notice on 29.6.1993 calling upon the 1st Plaintiff to come and live with the Defendant and 1st Plaintiff replied the said notice on 02.07.2003 and Defendant sent his rejoinder also. Further case of Defendant is that since the 1st Plaintiff refused to live with the Defendant, Defendant filed HMOP.No.121/1995 for restitution of conjugal rights before Sub-Court, Udumalaipet and after the receipt of notice in the said HMOP, 1st Plaintiff appeared in person before Sub-Court, Udumalaipet and endorsed that she is willing to join with the Defendant. Inspite of the decree, 1st Plaintiff never returned back to matrimonial home. Thereafter, Defendant issued notice to the 1st Plaintiff on 17.4.1996, 15.5.1996, 05.7.1996, 16.7.1996, 03.12.1996, 1.10.1997, 17.11.1997 and 12.1.1998 calling upon 1st Plaintiff to come and live with Defendant. Case of Defendant is the since 2nd Plaintiff completed 6 years of age, Defendant filed HMGOP No.52/98 on the file of District Court, Coimbatore seeking custody of 2nd Defendant and also appoint him as guardian and the was later transferred to Sub-Court, Udumalpet and renumbered as GWOP.No.339/2000 and the same is pending. Defendant denied having married his relative girl. Further defence plea is that without prejudice, the claim made by the Defendant is exorbitant, since Defendant earning only meagre amount and Plaintiffs are not entitled to claim any maintenance from the Defendant and prayed for dismissal of the suit.
4. Based upon the pleadings, the following Issues were framed for trial:-
1. Whether the Plaintiffs are entitled to Rs.500/- each as maintenance from the Defendant?
2. To what relief?
5. Before the trial court, both the suit and GWOP were taken up together and common evidence let in. Onbehalf of Plaintiffs, 1st Plaintiff Santhamani was examined as PW1. Exs.A1 to A15 were marked. On the side of Defendant, Defendant himself examined as DW1 and Exs.B1 to B10 were marked.
6. In the trial Court, 1st Plaintiff examined herself as PW1 and she was cross-examined in part. Later, 1st Plaintiff did not appear for further cross-examination and Plaintiffs' evidence was closed by the order of the Court and thereafter Defendant was examined as DW1. Since, 1st Plaintiff did not appear for further cross-examination, her oral evidence ordered to be eschewed. From the documents and from the evidence of Defendant and other circumstances and also the averments made in GWOP.No.399/2000, trial Court found that serious allegations of adulterous conduct was levelled against the wife-1st Plaintiff and 1st Plaintiff is justified in living separately. Finding that 1st Plaintiff has reasonable cause for separate living and that Defendant has got obligation to maintain the Plaintiffs, trial Court ordered maintenance of Rs.500/- each to the Plaintiffs.
7. Challenging the findings of trial Court, Mr.N.Mani, learned counsel for Appellant-husband contended that 1st Plaintiff left on her own accord and while so, she is not entitled for any maintenance. Laying emphasis upon eschewing 1st Plaintiff's evidence, learned counsel for Appellant further submitted that it was a case of no evidence and 1st Plaintiff has not adduced any evidence. Main contention of the Appellant is that when the 1st Plaintiff has not appeared for further cross-examination, trial Court ought not to have proceeded with the suit and dealt with the matter in accordance with Order 9 CPC and while so, trial Court erred in proceeding with the matter and determining on merits. It was further contended that the averments in GWOP.No.339/2000 ought not to have been taken as evidence and the maintenance awarded by the trial Court cannot be sustained.
8. Reiterating the finding of the trial Court, Mr.Senthilkumar, learned counsel for Respondents submitted that in GWOP.No.339/2000, Appellant-husband has levelled serious allegations against the 1st Plaintiff and when the 1st Plaintiff was so treated with cruelty, 1st Plaintiff is living separately and Defendant is under obligation to maintain her. It was further argued that 1st Plaintiff along with her son minor Mohan is living with her parents with great difficulty and unable to meet both ends and trial Court rightly granted maintenance of Rs.500/- each and the same cannot be interfered with.
9. Upon analysis of evidence and judgment of the trial Court and rival contentions, the following points arise for our consideration in this Appeal.
1) Because of non-appearance of 1st Plaintiff for further cross-examination, whether trial Court ought to have proceeded with the matter under Order IX CPC?
2) Notwithstanding non-appearance of 1st Plaintiff whether trial Court was right in referring to the averments in GWOP.No.339/2000 and right in awarding maintenance?
10. Marriage between 1st Plaintiff and Defendant on 21.1.1991 and birth of 2nd Plaintiff on 26.12.1991 are not in dispute. Case of Plaintiffs is that while 1st Plaintiff was living with the Defendant, Defendant was leading wayward life and that he often quarreled with 1st Plaintiff demanding dowry and jewels and also insisted upon transfer of house site property situated in Karuthampatti village, Palladam Taluk which was purchased in the name of 1st Plaintiff by her father Muthuswamy Chettiar. Further case of Plaintiffs is that Defendant became hostile not only towards 1st Plaintiff, but also towards child - 2nd Plaintiff. 1st Plaintiff has also averred that Defendant started beating her and in the middle of 1992, 1st Plaintiff was taken by her parents house at Varadharajapuram and thereafter, Defendant never visited the Plaintiffs nor taken steps to reconcile. Stating that she is unable to maintain herself, 1st Plaintiff claimed maintenance of Rs.500/- for each of them.
11. Defendant resisted the suit contending that he was always ready and willing to live with the 1st Plaintiff and that he has also filed HMOP.No.121/1995 for restitution of conjugal rights and 1st Plaintiff appeared in the said proceedings and made an endorsement that she would live with the Defendant and thereafter, 1st Plaintiff did not reconcile or reunited. 1st Plaintiff has averred that even though HMOP.No.121/1995 was filed for restitution of conjugal rights, Defendant had no intention of living with the 1st Plaintiff and Defendant has filed HMOP.No.121/1995 merely for the sake of filing and he had no real intention of living with the 1st Plaintiff.
12. First Plaintiff examined herself as PW1 and her chief-examination was recorded by way of filing affidavit on 27.11.2003. Thereafter, chief-examination continued on 23.01.2004 and PW1 was cross-examined in part on 10.2.2004. Thereafter, 1st Plaintiff did not appear for further cross-examination and evidence of PW1 was ordered to be closed by the Court. Notwithstanding her non-appearance invoking Order 17, Rule 2 CPC, trial Court proceeded to determine the matter on merits. Referring to serious allegations in GWOP.No.339/2000 wherein the husband has averred that 1st Plaintiff has contacts with other men and claiming custody of 2nd Plaintiff, trial Court took the view that the averments in the Furardian and Wards Petition is sufficient to cause mental cruelty justifying separate living. Pointing out that wild allegations are made by the Defendant in GWOP.No.339/2000 and the earlier reply notices, proceeding under Order 17, Rule 2 CPC, trial Court decreed the suit holding that making such wild allegations would justify the conduct of separate living and that husband is under obligation to pay maintenance to 1st Plaintiff as well as child - 2nd Plaintiff.
13. Learned counsel for Appellant mainly contended that finding of trial Court based upon the averments in GWOP.No.339/2000 and other documents is erroneous and trial Court ought not to have taken them as evidence and proceeded with the matter on merits. It was further argued that when 1st Plaintiff did not appear for cross-examination, when trial Court had eschewed the evidence of Plaintiff, the Court ought to have proceeded with the matter under Order IX CPC and dismiss the suit for default. It was further argued that it is a case of no evidence and Judgment of the trial Court is liable to be set aside.
14. Main point falling for determination is whether notwithstanding the absence of 1st Plaintiff on the date of adjournment, whether the trial Court was justified in proceeding with the matter on merits.
15. In the instant case when the matter was adjourned for further cross-examination, 1st Plaintiff did not appear. When time was granted to the 1st Plaintiff to adduce her evidence or make appearance in the Court and when the Plaintiff has not appeared, Court to proceed with the matter under Order 17, Rule 2 CPC.
16. Order 17, Rule 2 CPC reads as under:-
R.2. Procedure if parties fail to appear on day fixed.- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
Explanation. - Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.
17. Order 9 CPC lays down the procedure to be followed on the appearance or non-appearance of the parties at the first hearing and Order 17 CPC applies when there is default of appearance at an adjourned hearing. The effect of Order 17, Rule 2 CPC is to make Order 9 CPC applicable to adjourned hearing of cases. Under Order 17, Rule 2 CPC, Court can in its discretion, in the absence of the parties or any of them grant further adjournment, or proceed to dispose of the suit in one of the modes prescribed in Order 9 or in a case where material portion of party's evidence has already been recorded and such party fails to appear, proceed with the case as if the party was present and dispose of the suit on merits.
18. The expression "make such other order in Order 17, Rule 2 CPC" confers a discretion upon the Court to adjourn the suit or to proceed on merits. The intention behind the use of words "make such other order" seems to be to enable the suit to be decreed or to be adjourned. If there are no circumstances justifying the decreeing of the suit or adjournment of it, Court must proceed under Order 9 C.P.C. Court can proceed on merits only if there are sufficient materials to justify that course.
19. As pointed out earlier, 1st Plaintiff was examined and cross-examined in part and Exs.A1 to A15 were also marked. When the case was adjourned for further cross-examination of 1st Plaintiff, 1st Plaintiff did not appear for cross-examination. In the trial Court on 16.02.2004, 1st Plaintiff and Defendant were absent. Absence of Defendant was condoned on merits. Pointing out that there was no representation on the side of Plaintiffs and 1st Plaintiff is also absent, trial Court eschewed the evidence of PW1/1st Plaintiff and decided to proceed under Order 17, Rule 2 CPC. Even though, the learned trial Judge observed that Court is proceeding under Order 17, Rule 2 CPC as if Plaintiff was present, learned trial Judge ordered "eschewing evidence of PW1".
20. Thereafter on 05.03.2004, 1st Plaintiff and Defendant appeared and 1st Plaintiff also filed Petition under Order 9, Rule 9 CPC praying to set aside the exparte order passed against her. Petition filed by the 1st Plaintiff under Order 9, Rule 9 CPC was dismissed on 12.03.2004. On the same day, Defendant was set exparte and case was posted for Judgment on 16.3.2004. On Defendant's side Petition was filed under Order 9, Rule 7 CPC in I.A.No.48/2004 and conditional order was passed. As per the order in I.A.No.48/2004, exparte order passed against the Defendant was set aside. Again on 15.4.2004, trial Court observed that it has decided to proceed under Order 17, Rule 2 CPC Explanation, as if Plaintiff was present. After eschewing the evidence of PW1, on 24.5.2004 trial Court proceeded to pass judgment and decree on merits. With the eschewal of 1st Plaintiff's evidence and dismissal of Petition filed by 1st Plaintiff under Order 9, Rule 9 CPC, the effect was that 'no evidence' was on record. If oral evidence was eschewed, even the documentary evidence adduced by Plaintiff stood effaced. In such circumstances, it was a case of 'no evidence' and the trial Court was not justified in proceeding under Order 17, Rule 2 CPC.
21. A plain reading of Explanation to Rule 2 would indicate that there should be a portion or substantial portion of the evidence on behalf of a party to fall within the ambit of the explanation. Where substantial part of evidence of defendant is not on record, the explanation is not attracted and the matter has to be proceeded under Order 9 CPC. Explanation confers discretion upon the Court to adjourn or to proceed on merits under Rule 2, if there are sufficient materials. Even though evidence was recorded, trial Court ordered to eschew the same. After so eschewing PW1's evidence, in our considered view, trial Court ought not to have proceeded with the matter on merits.
22. In our considered view, as per explanation to Order 17, Rule 2 CPC where the evidence or substantial portion of evidence was already on record, the Court may in its discretion to proceed with the matter as if such party was present. There must be some materials for decision on the merits, even though, materials may not be technically interpreted as evidence. After eschewing 1st Plaintiff's evidence, absolutely there was no materials before the Court to proceed with the matter. Pre-requisite of Explanation to Order 17, Rule 2 CPC was not satisfied and while so, trial Court was not justified in proceeding to decide the matter on merits.
23. After eschewing 1st Plaintiff's evidence, trial Court proceeded to refer to the averments in GWOP.No.339/2000 and held that the averments of alleged adulterous conduct in the Petition would cause reasonable apprehension in the mind of 1st Plaintiff to live separate and on those findings, trial Court ordered Rs.500/- per month to each of the Plaintiff as maintenance. After eschewing, PW1's evidence, trial Court was not right in referring to the averments in GWOP.No.339/2000. The approach adopted by the trial Court in eschewing the evidence of PW1 and thereafter proceeding to decide the matter on merits under Order 17, Rule 2 CPC was not correct.
24. It is pertinent to note, both 1st Plaintiff and Defendant were repeatedly filing Petitions before the trial Court to afford further opportunity to them. We are of the view that trial Court was not right in not affording further opportunity to the 1st Plaintiff and eschewing her evidence and proceeding to determine the matter on merits. In such circumstances, with a view to afford opportunity to both Plaintiff and Defendant to adduce further evidence, the matter has to be remitted back to the trial Court. We are conscious that the matter is pending for quite a long time. Having regard to the interest of parties and with a view to afford sufficient opportunity to the Plaintiff and Defendant, the matter is to be remitted back to the trial Court. As per the interim order in CMP.No.14046/2005 dated 01.9.2005, Defendant is directed to deposit a sum of Rs.30,000/- to the credit of O.S.No.18/2000. Keeping in view the interest of parties and also long pendency of the matter, interest of 1st Plaintiff would be sub-served in directing the Defendant to deposit further sum of Rs.40,000/- to the credit of O.S.No.18/2000.
25. In the result, the Judgment and Decree in O.S.No.18/2000 dated 24.5.2004 is set aside and the appeal is allowed. The matter is remitted back to the trial Court. The evidence already on record shall be restored and the Family Court, Coimbatore is directed to afford sufficient opportunity to both Plaintiffs and Defendant to adduce further evidence and proceed with the matter in accordance with law. Immediately, after the receipt of records from the High Court, the Family Court, Coimbatore is directed to fix date of hearing and send notice to both Plaintiffs and Defendant for appearance and dispose of the suit preferably within a period of three months.
Defendant is directed to deposit further sum of Rs.40,000/- to the credit of O.S.No.18/2000 pending on the file of Family Court, Coimbatore within a period of three weeks from the date of receipt of copy of this Judgment. Without prejudice to the contention of both sides, 1st Plaintiff is permitted to withdraw a sum of Rs.25,000/- from the deposited amount and the same shall be subject to the result of the judgment to be passed in the suit.
Considering the relationship of parties, there is no order as to costs in this Appeal. Consequently, connected M.P. is closed.
[R.B.I.,J] [M.V.,J]
18.03.2010
bbr
Index: Yes/No
Internet: Yes/No
To
The Family Court,
Coimbatore.
Note:-
Registry is directed to send
copy of Judgment and records
forthwith to the lower Court.
R.BANUMATHI, J.
and
M.VENUGOPAL, J.
bbr
Judgment in
A.S.No.816 of 2005
18.03.2010
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