Ashi Kumar vs Aseem Agarwal

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).9453 OF 2019 (Arising from SLP(C)No. 18971/2019)

ASHI KUMAR APPELLANT(S)

VERSUS

ASEEM AGARWAL RESPONDENT(S)

O R D E R

1. Leave granted.

2. This appeal takes exception to the

judgment and order dated 15.07.2019 passed by the

High Court of Delhi at New Delhi in C.M.(M)

No.1019 of 2019, whereby the High Court

entertained the writ petition filed by the

respondent herein, Assem Agarwal, under Article

227 of the Constitution of India challenging the

order dated 01.12.2018 passed by the Family Court,

Patiala House in H.M.A. No.33 of 2012 directing

the respondent to produce the subject documents.

3. The High Court by the impugned order not Signature Not Verified only entertained the writ petition but stayed the Digitally signed by ASHWANI KUMAR Date: 2019.12.20 15:28:00 IST Reason: trial before the Family Court, which is pending

since 2011 (renumbered in 2012).

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4. The necessity of producing the documents by

the respondent relates back to Order dated

28.01.2014 passed by the Family Court, which reads

thus:

“28/1/2014

Pr: Petitioner in person alongwith her father and Sh.N.K. Srivastava. SPA Ms. Reena Jain for the respondent is also advocate for respondent.

Petitioner wants to file formal response to affidavit as referred in order dated 6/12/2013. On communication from the respondent along with the attested affidavit in original (copy already filed) has been filed by the Ld. SPA.

Adjourned for filing of response by the petitioner and for production of remaining original documents, if any and admission/denial of documents on 12/3/2014. Let the attested copy of divorce petition and the judgment and decree passed by Family Court at Auckland in New Zealand be filed by the respondent and advance copy be given to the other side.” (emphasis supplied in italics)

5. It is not in dispute that this order has

been allowed to become final by the respondent. As

a matter of fact, the respondent partly complied

with this direction by only producing decree

passed by the Family Court at Aukland in New

Zealand and not the judgment and divorce petition.

Resultantly, the appellant moved the Family Court

for issuing necessary directions to the

respondent, which application was allowed by the 3

Family Court vide order dated 01.12.2018.

6. Indisputably, directions were issued to

the respondent to produce the stated documents

which, however, remained uncomplied till

19.03.2019. On 29.03.2019 the respondent through

counsel gave undertaking to the Family Court that

he would file the documents on the next date of

hearing. When the matter was again taken up on

03.04.2019, the Family Court was informed that the

documents are in transit. Even on 21.05.2019, the

respondent gave impression to the Family court

that the documents were still in transit.

7. Instead of complying with the

undertaking, the respondent chose to file writ

petition to challenge the order dated 01.12.2018,

which, as aforesaid, has been entertained by the

High Court being oblivious of the fact that the

respondent had given a solemn undertaking to the

Family Court to produce the documents, through his

counsel.

8. Counsel for the appellant contends that

the undertaking to the Family Court was given not

only by the counsel appearing for the respondent 4

but also by his Power of Attorney. The respondent,

however, disputes the correctness of this

submission. We are not required to go into this

controversy.

9. Suffice it to note that the High Court

was impressed by the specious argument of the

respondent that the documents insisted upon are

not relevant to decide the controversy in issue.

On that basis, the High Court proceeded to stay

the trial.

10. In our opinion, the respondent having

given undertaking to the Family Court through

counsel and/or Power of Attorney, as the case may

be, was obliged to comply with the same unless

absolved therefrom by the Family Court. The

question of entertaining writ petition despite

such undertaking to the Family Court cannot be

countenanced. If the respondent is not relieved

of the undertaking by the Family Court, he must

take the consequences of the order passed by the

Family Court directing production of the said

documents. We are of the opinion that if this

position was brought to the notice of the High

Court on 15.07.2019, perhaps the writ petition 5

would not have been entertained by the High Court.

11. The counsel for the respondent submits

that this argument was advanced before the High

Court. If so, the High Court ought to have taken

note of the same in the impugned judgment, which

is conspicuously absent. Even for that reason, the

impugned judgment cannot be sustained.

12. In view of the above, we set aside the

impugned order as also dismiss the writ petition

filed by the respondent before the High Court

being C.M.(M) No.1019/2019, but give liberty to

the respondent to approach the Family Court by way

of appropriate application including to absolve

the respondent from the undertaking given on his

behalf or in the alternative to produce the

documents referred to in the order of the Family

Court dated 01.12.2018, as may be advised. If such

application is filed, the same be considered by

the Family Court on its own merits in accordance

with law. If the respondent needs some more

reasonable time to produce the document in

question even that application can be made before

the Family Court which be considered

appropriately.

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13. We further make it clear that it will be

open to the Family Court to proceed with the

proceedings pending before it on the basis of

record/evidence to be produced by the parties.

14. Needless to observe that production of

the stated documents by the respondent will not

come in his way to contend that the same are not

relevant for deciding the matter pending before

the Family Court. That contention can be

considered on its own merits by the Family Court

in accordance with law.

15. The appeal and pending applications are

accordingly disposed of in the above terms.

..................,J.

(A.M. KHANWILKAR)

..................,J.

(DINESH MAHESHWARI) NEW DELHI DECEMBER 16, 2019.

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ITEM NO.48 COURT NO.7 SECTION XIV

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 18971/2019

(Arising out of impugned final judgment and order dated 15-07-2019 in CMM No. 1019/2019 passed by the High Court Of Delhi At New Delhi)

ASHI KUMAR Petitioner(s)

VERSUS

ASEEM AGARWAL Respondent(s)

(FOR ADMISSION and I.R. )

Date : 16-12-2019 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE MR. JUSTICE DINESH MAHESHWARI

For Petitioner(s) Mr. Prabhjit Jauhar, Adv.

Ms. Aishwarya, Adv.

For Mr. S. S. Jauhar, AOR

For Respondent(s) Ms. Geeta Luthra, Sr. Adv.

Ms. Reema Jain Malhotra, Adv. Mr. Chandan Kumar, AOR Ms. Asmita Narula, Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal and pending applications are

disposed of in terms of the signed order.

(NEETU KHAJURIA) (VIDYA NEGI) COURT MASTER COURT MASTER

(Signed order is placed on the file.)