IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.2708 OF 2017 (GM-FC) BETWEEN:
SMT.GAYATHRIDEVI .G W/O KRISHNA K.M D/O GOVINDAIAH P.M AGED ABOUT 50 YEARS PRESENTLY RESIDING AT AMRUTH NIVAS C/O SATHISH KUMAR R.S NO.1091/20, 9TH MAIN, 3RD STAGE GOKULAM, MYSORE – 570 000.
(BY MR.K.S.CHANDRAKANTH GOWDA, ADV.) AND:
SRI.KRISHNA K.M S/O LATE MELEGOWDA K.C AGED ABOUT 53 YEARS RESIDING AT D.NO.1176 2ND CROSS, VIJAYALAKSHMI BUILDING ASHOKNAGAR, MANDYA CITY MANDYA – 571 401.
(BY MR.H.C.SHIVARAMU, ADV.) - - -
… PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY LEARNED SENIOR CIVIL JUDGE AND CJM AT MANDYA IN M.C.NO.34/2009 ON IA NO.XII DATED: 29.09.2016 MARKED AS ANNEXURE-H AND ALLOW THE SAME AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri.K.S.Chandrakanth Gowda, learned counsel for the petitioner.
Sri.H.C.Shivaramu, learned counsel for the respondent.
2. The writ petition is admitted for hearing.
With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of Constitution of India, the petitioner has assailed the validity of the order dated 29.09.2016 passed by the family court by which the application preferred by the petitioner under Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) permitting him to file additional objections to the main petition the family court have been rejected.
4. Facts giving rise to filing of this petition briefly stated are that respondent filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for short) seeking a decree of divorce. On receipt of the notice of the proceeding instituted by the respondent the petitioner engaged the services of an Advocate viz., Srikanth Swamy and subsequently engaged one Mr.Narsimhan and Mr.K.S.Nanjundegowda. It is the case of the petitioner that the Advocate engaged by the petitioner filed statement of objections to the main petition without seeking any instructions from the petitioner and the aforesaid statement of objection is incomplete and does not contain any verification. The petitioner came to know about the aforesaid fact, after the matter was posted for cross-examination of the respondent. The petitioner thereafter engaged services of another Advocate who filed an application under Order VI Rule 17 of the Code however, the aforesaid application was rejected by an order dated 23.06.2016. The petitioner thereafter filed an application under Section 151 of the Code for permission to file additional objections. The respondent filed objection to the aforesaid application. However, the said application was rejected by impugned order dated 29.09.2016 inter alia on the ground that filing of the application under Section 151 of the Code amounts to abuse of process of law. Accordingly, the application was rejected.
5. Learned counsel for the petitioner submitted that initially the statement of objections was filed by the counsel without seeking any instructions from the petitioner and the statement of objections filed on behalf of the petitioner does not even contain her signature and the same also does not contain the verification clause. Therefore, the same cannot be treated as written statement. However, the aforesaid aspect of the matter was not appreciated by the family court while passing interim order. In support of the aforesaid submissions, reliance has been placed on the decisions of Bombay High Court in ‘VINAYAK NEELKANTH KALE AND ANOTHER VS. SHANTABAI DATTATRAYA DESHPANDE AND ANOTHER’, AIR 1983 BOM 172. On the other hand, learned counsel for the respondent has supported the order passed by the family court.
6. I have considered submissions made by the learned counsel appearing on both the sides and have perused the record. Every party before the Trial Court has a right to have a fair trial. It is equally well settled legal proposition that for the fault on the part of the counsel a party should not be made to suffer. It is the case of the petitioner that the counsel engaged by her filed the written statement without seeking instructions from her. The written statement filed on behalf of the petitioner admittedly does neither contains the signature of the petitioner nor the same contains the verification. Therefore, the aforesaid written statement filed on behalf of the petitioner in any case could not have been treated as a written statement. The aforesaid omission was noticed by the petitioner at the time when the matter was posted for cross examination of the respondent. Therefore, the application under Section 151 the code was filed. In case the impugned order is allowed to stand, the petitioner will suffer in irretrievable prejudice as she would be deprived of right to a fair trial and would be condemned unheard in the absence of objections. It is equally well settled legal proposition that for the inadvertence on the part of the learned counsel the party should not be allowed to suffer. In view of the preceding analysis the impugned order dated 29.09.2016 does not suffer from any error apparent on the fact of the record. Accordingly it is quashed. The application filed by the petitioner filed under Section 151 of the Code is allowed and the additional objections filed by the petitioner to the petition under Section 13 of the Act are taken on record. Needless to state that since the proceeding are pending before the family court since 2009 the family court shall make an endeavor to dispose of the same expeditiously in accordance with law.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS