Arjun Yash Mahajan vs Shivani Mahajan

CR No.5170 of 2016(O&M) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5170 of 2016(O&M) Date of Decision-21.12.2018

Arjun Yash Mahajan ... Petitioner Versus Shivani Mahajan ... Respondent CORAM:-HON'BLE MR. JUSTICE RAJ MOHAN SINGH

Present: Mr. Vikas Behal, Sr. Advocate with Mr. Abhilaksh Grover, Advocate for the petitioner. Ms. Neha Sonawane, Advocate for the respondent. *** RAJ MOHAN SINGH, J.

[1]. Petitioner has preferred this revision petition against

the order dated 31.05.2016 passed by Additional Civil Judge

(Senior Division), Panchkula, whereby the application under

Order 7 Rule 11 CPC filed by the petitioner was dismissed.

[2]. Marriage of the petitioner was solemnized with the

respondent on 02.12.2018 in Delhi as per Hindu Rites and

Ceremonies. After the marriage, the couple went to London.

Minor Child Inayat Mahajan took birth on 02.07.2012. Petitioner

and the respondent are British citizens and are having status of

Indian overseas citizens. Minor Inayat Mahajan now aged 15

years is also British citizen. The couple could not go ahead with

the matrimonial ties and ultimately, got separated vide divorce

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dated 04.09.2014 passed by Central Family Court, London. An

amicable settlement was done.

[3]. Heads of terms of agreement and settlement were

recorded. It was mutually agreed and declared on 11.09.2014 by

the parties (couple) as under:-

"1. The father and mother have each taken separate and independent legal advice on the matters referred to in these Heads of Terms.

2. There have been up to now differences between the father and the mother as to residence and contact in respect of the child of the family Inayat Mahajan (date of birth 2nd July 2012) resulting in the mother issuing an application under the Children Act for a prohibited steps order and the father issuing an application under the Children Act 1989 for Residence and Contact.

3. The mother has been served with the father's application for a residence and contact application which is currently being processed by the Court and a hearing date is awaited.

4. Furthermore the mother in conjunction with the application for a prohibited steps order made a free standing application for an injunction against non-molestation and a restraining order prohibiting the father from entering the Former Matrimonial Home at 15 Cape Yard Kennet Street London E1W2JU.

5. The mother as from the date sets out below consents to the application both as to residence and contact and acknowledges and affirms that the child of the Family Inayat Mahajan shall forthwith reside exclusively with the father.

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6. The mother invites the Court to make an order granting Residence to the father and will sign such consent application or other any documentation required of her by the father or the Court to provide that the father do have residence of the child of the Family Inayat Mahajan.

7. The mother further acknowledges and by these Heads of Terms gives full consent to the father that if he chooses to live and or work abroad that she gives full consent to the father taking the child of the Family Inayat Mahajan out of the jurisdiction of England and Wales and she will support any application required of the father to seek permission of the Courts to remove the child of the Family Inayat Mahajan from its jurisdiction.

8. The father acknowledges and accepts that the mother shall be entitled to have contact to the child of the Family Inayat Mahajan at times to be mutually agreed between the father and the mother. During school holiday's, the father agrees that the mother can have child of the Family Inayat Mahajan for upto 3 weeks on mutually agreed dates, provided the mother collects Inayat Mahajan and mother returns Inayat Mahajan in the custody of the father.

9. The mother hereby further consents that she will make an application forthwith to the Courts to withdraw the prohibited steps order and the injunction both as to non- molestation and the father entering the Former Matrimonial Home. The father accepting that he should not unless invited by the mother return to or enter the Former Matrimonial Home save otherwise than for the purposes of collecting and delivering the child of the Family Inayat Mahajan when the mother has contact."

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[4]. Thereafter, the application filed by the respondent

seeking an ex parte non-molestation and occupation was

dismissed by the East Central Family Court, London i.e. interim

order dated 02.07.2014 was discharged. The consent order was

signed by the parties on 03.10.2014. A consent order regarding

financial agreement between the parties was also converted by

the Central Family Court vide order dated 03.11.2014. Thereafter,

a similar draft consent order was also signed by the parties on

03.10.2014 in the presence of witnesses and it was agreed that

the petitioner is entitled to remove the child from jurisdiction of the

Court permanently. In case, petitioner wishes to leave and work

out of the jurisdiction of England, then he was to inform the

respondent about whereabouts of the child. On 03.10.2014,

following order was passed in the aforesaid context:-

"1. The Order of District Judge Davies dated the 2nd June 2014 be discharged.

2. The child of the family Inayat Mahajan date of birth 2nd July 2012 shall reside with the Respondent Father Arjun Yash Mahajan as from the date of this Order and the Applicant shall hand over to the Respondent Inayat Mahajan's U K passport, Overseas Citizen of India passport and Medical Red Book.

3. Applicant shall have contact to Inayat Mahajan for alternate weekend stay provided the respondent and the child of the family Inayat Mahajan are in the jurisdiction of England and Wales. Respondent further agrees that the applicant shall have contact with child of the family Inayat

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Mahajan for upto 3 weeks during the summer school holidays provided that the applicant collects the child Inayat Mahajan and undertakes to return the child Inayat Mahajan to the respondent in the jurisdiction of the residence of the respondent.

4. The respondent shall be entitled to remove the child Inayat Mahajan, date of birth 2nd July 2012, from the jurisdiction of this Court permanently. If the respondent chooses to live and work out of the jurisdiction of England and Wales along with the child of the family Inayat Mahajan, the respondent agrees to inform the applicant the whereabouts of the child, Inayat Mahajan. The respondent further agrees for the applicant to have contact with child of the family Inayat Mahajan via social media (Facetime).

5. There be no order as to costs save for detailed assessment of the applicants publicly funded costs in accordance with the Civil Procedure Rules, 1998 Part 47.17."

[5]. In the meantime, on 08.10.2014, petitioner sent a letter

to the respondent requesting her to sign the letter, giving her

family consent so that the petitioner may take the child Inayat

Mahajan with him to India. Respondent gave her consent on

09.10.2014 agreeing to the aforesaid proposal. A final draft order

laying down the terms of the settlement was delivered to the

Court on 10.11.2014.

[6]. Thereafter, in terms of settlement, respondent was

given permission to withdraw the child arrangements vide order

dated 12.12.2014 and it was agreed between the parties that they

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shall make their own arrangements of the child. Respondent

consented to the child being taken to India by the petitioner.

Consequently, the petitioner left U.K and came to India with the

minor and started residing in Panchkula.

[7]. Respondent initiated proceedings against the

petitioner before the High Court of Justice, Family Division.

Respondent appeared in person, however, petitioner did not

appear. The case was dismissed by the High Court on

06.07.2015.

[8]. Thereafter, respondent filed an application under

Section 9 of the Guardians and Wards Act, 1890 initially before

the Family Court, Saket, New Delhi, but the same was dismissed

for lack of jurisdiction. Thereafter, respondent filed petition under

Section 7 read with Section 9 of the Guardians and Wards Act,

1890, seeking permanent custody and guardianship of minor

child in the Family Court at Panchkula.

[9]. Petitioner contended that the issue of custody has

already been concluded on account of order dated 12.12.2014

passed by Family Court at London. Along with the petition, an

application under Section 12 read with Section 39 of the

Guardians and Wards Act, 1890 was also filed by the respondent

for grant of interim order, directing the petitioner to allow the

respondent to speak with the minor every day and to have

custody of minor every weekend. Interim custody of the minor

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was claimed by removing the minor from the custody of the

petitioner.

[10]. In the aforesaid petition, the petitioner filed an

application under Order 7 Rule 11 CPC for rejection of plaint on

the ground of jurisdiction.

[11]. The application filed by the petitioner under Order 7

Rule 11 CPC was dismissed by Additional Civil Judge (Senior

Division), Panchkula vide order dated 31.05.2016 and the

application under Section 12 of the Guardians and Wards Act,

1890 was adjourned for arguments. That is how, the present

revision petition came to be filed.

[12]. Learned Senior Counsel for the petitioner submitted

that the respondent cannot be allowed to raise the issue again,

once it was culminated in the competent Court at London. The

settled things cannot be unsettled with the change of place. The

concept of finality of judgment has been explained by the Hon'ble

Apex Court in Indian Council for Enviro-Legal Action Vs.

Union of India and others, 2011(3) RCR (Civil) 779. The maxim

'interest Republicae ut sit finis litium' is to the effect that the

litigation must end after a long hierarchy of remedies at some

stage. It is necessary to put a quietus. It is rare that in an

adversarial system, despite the judges of the highest Court doing

their best, one or more parties may remain unsatisfied with the

most correct decision. Opening the door for a further appeal

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would result in opening a flood gate which will cause more

wrongs in the society at large at the cost of rights. The

controversy between the parties must come to an end at some

stage. It would be improper to allow the parties to file application

after application in the endless process. Finality of judgment is

absolutely imperative and great sanctity is attached to the finality

of the judgment.

[13]. Allowing the parties to re-open the concluded

judgments on the basis of some untested material would be an

abuse of process of law and the same would have far reaching

adverse consequences on the administration of justice. The

principle of finality of litigation is based on high principle of public

policy. It is equally important to prevent unscrupulous litigant from

taking undue advantage through the process of the Court. It is an

onerous duty and obligation of the Court to ensure that an undue

enrichment is not drawn by the losing party by exercising the

process of the Court. While curbing the aforesaid tendency, the

Court would be fully justified in imposing punitive costs, where

legal process has been abused. Doctrine of stare decisis is very

valuable principle of precedent which cannot be departed in

ordinary circumstances. The view expressed in Manganese Ore

(India) Ltd. Vs. The Regional Assistant Commissioner of

Sales Tax, Jabalpur, (1976) 4 SCC 124 and Green View Tea &

Industries Vs. Collector, Golaghat and another, 2002(2) RCR

(Civil) 362 can be relied in the aforesaid context.

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[14]. Learned Senior Counsel for the petitioner further

submitted that doctrine of res judicata is not technical doctrine,

but a fundamental principle which sustains rule of law in ensuring

finality in litigation. The Court should not be hampered by any

technical rule and interpretation at the time of applying principle

of res judicata. Even the party can be bound down by

constructive res judicata.

[15]. Learned Senior Counsel by citing Ramesh Kumar

Sharma Vs. The Ambassador, Royal Netherlands Embassy,

2002(1) SCT 761, SNP Shipping Services Pvt. Ltd. and others

Vs. World Tanker Carrier Corporation, 2000 AIR (Bombay) 34,

Hanifa Kalangattu Vs. Shaista Khan, 2017(2) Ker L.J. 556,

HSBC Bank USA Vs. Silverline Technologies Ltd. and

another, 2006(3) RCR (Rent) 368, T. Arivandadam Vs. T.V.

Satyapal, 1978(1) SCR 742, Surinder Mohan Vs. Pritam Kaur

and another, 2009(33) RCR (Civil) 203 and Church of Christ

Charitable Trust & Educational Charitable Society,

represented by its Chairman Vs. M/s Ponniamman

Educational Trust represented by its Chairperson/Managing

Trustee, 2012(3) RCR (Civil) 811 contended that having availed

the remedy before the competent Court at London, respondent is

not competent to re-agitate the concluded issue and the same is

hit by principle of res judicata.

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[16]. United Kingdom is not a reciprocating country as

envisaged under Section 44-A CPC, therefore, the judgment

passed by the foreign country is not executable in India. Perusal

of petition under Section 7 read with Section 9 of the Guardians

and Wards Act, 1890 would show that the petition is nothing but

an enforcement of foreign judgment which cannot be done on

legal parameters. Learned Senior Counsel relied upon Sections

13 CPC and contended that a foreign judgment shall be

conclusive as to any matter thereby directly adjudicated upon

between the same parties or between parties under whom they or

any of them claim litigating under the same title except:-

(a) Where it has not been pronounced by a court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) Where it has been obtained by fraud;

(f) Where it sustains a claim founded on a breach of any law in force in India.

[17]. Section 44-A CPC deals with the execution of decrees

passed by the Courts in reciprocating territories. The District

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Court shall refuse the execution of any such decree if it is shown

to the satisfaction of the Court that the decree falls within any of

the exceptions specified in clauses (a) to (f) of Section 13 CPC.

The order passed by the foreign Court has to be executed only

before the District Court. The Family Court has been given

special jurisdiction in terms of Family Court's Act and the District

Court as specified in Section 44-A CPC is the ordinary District

Court having civil jurisdiction. In view of above, learned Senior

Counsel contended that the Court at Panchkula does not have

any jurisdiction to entertain the petition. Learned Senior Counsel

further submitted that the foreign judgment as passed in the

present case, cannot be treated as foreign judgment as

contemplated under Section 13 CPC and the same is not

enforceable in India and enforcement of the same by means of

petition under Section 7 read with Section 9 of Guardians and

Wards Act, 1890 at Panchkula is not maintainable. Since the

order was passed on consent by the Family Court in London,

therefore, it prevents the Court from going into detailed merits of

the case and a party who by its own conduct of giving the

consent invites the Court for entering upon an order and

judgment is precluded from raising the defence that the judgment

is not on merits and therefore, not enforceable under Section

13(b) CPC.

[18]. Learned Senior Counsel further contended that 90% of

the petition is relying upon order of UK Court and in remaining

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10% of the petition, there is no whisper that the order is not

binding or clauses (a) to (f) are attracted. No averments have

been made in respect of UK being reciprocating territory so as to

attract filing of petition at Panchkula. If no averments in the plaint

are made, then only civil suit for declaration could have been

filed. No challenge has been made to the foreign decree, nor the

decree is a reciprocatory decree. The petition for custody is not

maintainable. There is no averments in the petition that the

husband is not fit enough to have the custody of minor on lawful

parameters.

[19]. On the other hand, learned counsel for the respondent

referred to Nithya Anand Raghavan Vs. State of NCT of Delhi

and another, 2017(8) SCC 454, Ruchi Majoo Vs. Sanjeev

Majoo, (2011) 6 SCC 479, Surya Vadanan Vs. State of Tamil

Nadu and others, (2015) 5 SCC 450, Rajesh K. Gupta Vs. Ram

Gopal Agarwala, (2005) 5 SCC 359, Gaurav Nagpal Vs.

Sumedha Nagpal, (2009) 1 SCC 41, Jitender Arora Vs. Sukriti

Arora,(2017) 3 SCC 726, Sarita Sharma Vs. Sushil Sharma,

(2000) 3 SCC 14, Dhanwanti Joshi Vs. Madhav Unde, (1998) 1

SCC 112, Nil Ratan Kundu Vs. Abhijit Kundu, (2015) 8 SCC

318, Bhau Ram Vs. Janak Singh, (2012) 8 SCC 701, Sopan

Sukhdeo Sable and others Vs. Assistant Charity

Commissioner and others, (2004) 3 SCC 137, Popat and

Kotecha Property Vs. State Bank of India Staff, (2005) 7 SCC

510, Kamala and others Vs. V.E.T. Eshwara SA and others,

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(2008) 12 SCC 661, Govind Goverdhandas Daga and another

Vs. Field Mining and Ispat Ltd., Nagpur and another, (2009)

SCC Online Bom 1134 and Rosy Jacob Vs. Jacob A.

Chakramakkal, (1973) 1 SCC 840 and contended that law

mandates that in all actions concerning children, the best

interests of the child shall be of primary concern and the child

shall be provided the opportunity to be heard. The Hague

Convention is intended to prevent parents from abducting

children across borders and is governed by the principle of comity

of Courts. Upholding the principle of comity of Courts while

disregarding the welfare of the child would thus go against the

public policy and result in great harm being caused to the child.

The concept of forum convenience has no place in wardship

jurisdiction. The efficacy of the principle of comity of Courts as

applicable to India in respect of child custody matters has been

succinctly delineated in several precedents. Reference can be

made to Dhanwati Joshi's case (supra). The Court is obliged to

examine the merits as to where the paramount interests and

welfare of the child lay and reckon the fact of a pre-existing order

of the foreign Court for return of the child as only one of the

circumstances. The crucial question to be considered by the

Court (in the country to which the child is removed) is to answer

the issue according to the child's welfare. This has to be done

keeping in view the totality of facts and circumstances of each

case independently. The principle of comity of Courts cannot be

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given primacy or more weightage for deciding the matter of

custody or for return of the child to the native State. The ratio of

Surya Vadanan's case (supra) has been diluted in Nithya

Anand Raghavan's case (supra) to some extent wherein

clauses 'a' to 'c' were held to be drifting away from the exposition

in Dhanwanti Joshi's case (supra) which has been quoted with

approval by Larger Bench in V. Ravi Chandran (2) Vs. Union of

India, (2010) 1 SCC 174. The giving of primacy to the order of

the foreign Court on the issue of custody of minor was negated in

Dhanwanti Joshi's case (supra). In both the inquiries whether

summary or elaborate, the paramount consideration is in the

interests and welfare of the child and the pre-existing order of a

foreign Court can be reckoned only as one of the factor to be

taken into consideration by the Court in India. Indian Courts are

strictly governed by the provisions of the Guardians and Wards

Act, 1890, as applicable to the issue of custody of the minor

within its jurisdiction.

[20]. The duty of a Court exercising its parens patriae

jurisdiction as in cases involving custody of minor children is all

the more onerous. Welfare of the minor in such cases being the

paramount consideration, the Court has to approach the issue

regarding the validity and enforcement of a foreign decree or

order carefully. Simply because a foreign Court has taken a

particular view on any aspect concerning the welfare of the minor

is not enough for the Courts in India to shut out an independent

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consideration of the matter. Objectivity is the only consideration in

such type of cases. It does not mean that the order passed by a

foreign Court is not even a factor to be kept in mind while

deciding the welfare of the child. The orders relating to custody of

children are by their very nature not final, but are interlocutory in

nature and subject to modification at any future time upon proof

of change of circumstances, requiring change of custody but such

change in custody must be proved to be in the paramount

interests of the child. The ratio laid down in Rosy Jacob's case

(supra) can be relied in this context with reference to Section 26

of the Hindu Marriage Act, 1955 which also mandates that

custody issue of the minor is a dynamic process and cannot be

treated to be static with the passing of the order. The welfare of

the child is of paramount consideration. The order relating to

custody of minor is always considered to be temporary/interim

order. With the passage of time, the Court is entitled to modify the

order in the interest of the minor. Even the order based on

consent can be varied in the interest of the minor, if the welfare of

the minor so demands. The children are not mere chattels, nor

are they mere play things for the parents. Absolute right of

parents over the destinies and lives of their children has, in the

modern changed social conditions, yielded to the considerations

of their welfare as human beings so that they may grow up in a

normal balanced manner to be useful members of the society.

The Guardian Court in case of dispute between the mother and

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the father is expected to strike a just and proper balance between

the requirements of welfare of the minor child and the rights of

respective parents over the child. In nutshell, welfare of the child

has to be appreciated in all possible manner. Any undertaking

given in the divorce case between the couples is not binding

upon the minor. All orders relating to custody of the minor must

be considered to be temporary orders made in the existing

circumstances. With the passage of time and with changed

conditions and circumstances, the Court is entitled to vary such

orders in the interest and welfare of the minor.

[21]. In Vikram Vir Vohra Vs. Shalini Bhalla, 2010(2) RCR

(Civil) 521, the Hon'ble Apex Court again relied upon the ratio of

Rosy Jacob's case (supra) and held that Section 26 of the

Hindu Marriage Act cannot create any embargo to treat the order

of custody passed by the Family Court to be permanent in nature,

rather such order will be too hyper technical to be considered

seriously in a custody issue of a child. Child cannot be treated to

be a chattel nor an article of personal property of equal halfs. The

Court must remember that it is dealing with a sensitive issue in

considering the nature of care and affection that a child requires

in the growing stages of his life. Custody orders are always

considered to be interlocutory orders and by the nature of such

proceedings, custody orders cannot be weighed rigid and final.

These orders are capable of being altered and moulded keeping

in view the needs of the child. Merely because the father loves

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the minor child and is not shown to be otherwise undesirable,

cannot necessarily lead to the conclusion that the welfare of the

child would be better promoted by granting custody of the minor

to him as against mother, who may also be equally affectionate

towards the minor. The daily trauma, the child appears to

undergo while being tutored against his mother would be far in

excess of trauma likely to be faced while entrusted to the

husband. In Halsbury's Laws of England, Fourth Edition, Vol. 24,

para 511 at page 217, the mother's claim was held to be superior

to that of father.

[22]. The custody issue has to be appreciated on the

proverbial universally accepted superiority of natural mother's

instinctive selfless love and affection of her children particularly

infants. Motherly care and affection are indispensable for the

healthy growth of the minor. Selfless interest of the mother in the

welfare of their children is by and large found to be a part of her

nature. This instinct cannot be confined to human race alone.

None-else can provide love and affection to the children as

mother can, as lap of mother is God's own cradle for children.

Intensity of negative feeling of father towards mother would have

obvious effect on the psychology of minor, who remained in the

custody of his father to the exclusion of his mother. Mother is

per se best suited to care for infant during tender age. Reference

can be made to Rosy Jacob's case (supra), Mausami Moitra

Ganguli Vs. Jayant Ganguli, 2008(4) RCR (Civil) 551, Gaurav

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Napal's case (supra), Roxann Sharma Vs. Arun Sharma,

2015(2) RCR (Civil) 93 and Kamal Maini Vs. Natasha @ Mona

and others, 2017(5) RCR (Civil) 196.

[23]. Learned counsel for both the parties have tried to

argue the case on merits which is subject matter of pending

consideration before the Court at Panchkula. The aforesaid

arguments have been noticed as per intensity of arguments

raised by learned counsel for the parties during course of

hearing.

[24]. It is a settled principle of law that at the time of

consideration of application under Order 7 Rule 11 CPC, only

averments made in the plaint are to be seen. The consideration

on the basis of Section 13 CPC would give rise to a situation that

if the foreign judgment is found to be not in consonance with the

welfare of the child, then the Court in India which is not a

reciprocating territory can interfere in the custody issue. All these

things are dependent upon quality of evidence to be led by

parties during trial. Since minor cannot be party to the lis between

the parents, any order passed on consent of the parents is not

binding upon the minor. Sub Clauses (c), (d) and (f) of Section 13

CPC may give rise to certain questions which are required to be

answered by the competent Court after receiving evidence from

the parties. The foreign judgment can be one of the

considerations before the Court while considering the issue on

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merits. It cannot be a solitary point for decision of the custody

issue before the Court under Section 7 read with Section 9 of the

Guardians and Wards Act, 1890. At this stage, forming an opinion

on merits of the case may prejudice the case of either of the

parties during trial.

[25]. Having considered the questions raked up before this

Court, I am of the view that at this stage, no final opinion on the

basis of arguments raised by learned counsel for the parties at

the bar can be given, lest it may prejudice the case of either of

the parties on merits before the trial Court. The scope of Order 7

Rule 11 CPC cannot be applied as triable issues are involved in

the present case. Since the custody issue is dynamic in nature

which cannot be considered to be static by any stretch of

imagination, therefore, dynamic process with the passage of time,

needs re-consideration by the Court at appropriate stage. If

according to the petitioner, clever drafting has been made by the

respondent and that has created the illusion of a cause of action,

then the petitioner would be well advised to nip the same in the

bud at the first date of hearing by examining the parties under

Order 10 CPC. Petitioner would be at liberty to take recourse to

the lawful remedy as provided by the ratio as laid down in

Church of Christ Charitable Trust & Educational Charitable

Society, represented by its Chairman's case (supra).

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[26]. At this stage of litigation, there is no ground to interfere

in the impugned order dated 31.05.2016 passed by Additional

Civil Judge (Senior Division), Panchkula and to reject the plaint

under Order 7 Rule 11 CPC. However, this revision petition is

disposed of, giving liberty to the petitioner to take recourse to the

lawful remedy, if the drafting of the plaint is the result of clever

devise and the same has created an illusion of a cause of action.

[27]. Anything recorded hereinabove shall not be construed

to be a final opinion on merits of the case. Trial Court shall be

obligated to scrutinize the evidence on legal parameters and

decide the case strictly in accordance with law.

(RAJ MOHAN SINGH) JUDGE 21.12.2018 Prince

Whether Reasoned/Speaking Yes/No

Whether Reportable Yes/No

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