Neeta Mehra vs Sanjay Mehra

Judgment delivered on: 8th November, 2011

Neeta Mehra ......Petitioner Through: Mr. Ashok Agrwaal with Mr. Salar M. Khan, Advocates

Vs.

Sanjay Mehra ......Respondents Through: Nemo.

CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

1. By this revision petition filed under Section 115 read with

Section 151 CPC, the petitioner seeks to challenge the order dated

30th September, 2009 whereby the learned Trial Court directed

restoration of the divorce petition filed by the respondent on the

application moved by him under Section 151 CPC.

2. Assailing the said order, learned counsel appearing for the

petitioner submits that the learned Trial Court committed

jurisdictional error by invoking the power under Section 151 CPC to

restore the divorce petition filed by the respondent when only remedy

CRP No. 156 of 2011 Page 1 of 9 available to the respondent was to file an appeal in terms of order 43

Rule 1 (c) read with Section 151 CPC. The contention of the counsel

for the petitioner is that the divorce petition filed by the respondent

was dismissed in default on account of the non-appearance of the

respondent and his Advocate on 29.10.2010 and thereafter to seek

restoration of the petition the respondent had moved an application

under Order 9 Rule 4 CPC, which too was dismissed for non-

prosecution by the learned Trial Court vide order dated 16.5.2011,

but the said order was illegally recalled by the learned Trial Court on

the application moved by the respondent under Order 151 CPC. The

counsel also contends that the order dated 16.5.2011 passed by the

learned Trial Court in fact was an order on merits and the same could

not have been recalled by the learned Trial Court in exercise of its

inherent power under Section 151 CPC. Counsel also submits that

even the limitation period to challenge the said order dated 16.5.2011

has expired and, therefore, without seeking remedy of filing an

appeal, which again could be filed after seeking condonation of delay

in filing such an appeal. The counsel thus submits that the order

passed by the learned Trial Court under Section 151 CPC for recalling

the order dated 16.5.2011 is patently illegal and perverse. Counsel

CRP No. 156 of 2011 Page 2 of 9 also submits that valuable right accrued in favour of the petitioner

with the dismissal of the application of the respondent under Order 9

Rule 4 CPC, which right of the petitioner could not have been

defeated by the learned Trial Court by exercising inherent powers of

the Court that too in the face of specific legal remedy available under

law. In support of his arguments counsel for the petitioner placed

reliance on the judgment of the Apex Court in Manohar Lal Chopra -

vs- Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 with special

emphasis on para 21 of the same.

3. I have heard learned counsel for the petitioner at considerable

length and given my thoughtful consideration to the arguments

advanced by him.

4. The divorce petition filed by the respondent under Section

13(1)(ia) of the Hindu Marriage Act was dismissed by the learned

Matrimonial Court, not on merits but in default as nobody had caused

appearance for the respondent on 29.10.2010 when the said petition

was taken up by the Court. To seek restoration of the said petition the

respondent/petitioner had moved an application under Order 9 Rule 4

CPC and the said application moved by the respondent was opposed

CRP No. 156 of 2011 Page 3 of 9 by the petitioner/respondent primarily on two grounds; firstly that the

same was filed invoking a wrong provision of law and secondly on

account of the failure of the respondent/petitioner in not making a

payment of Rs. 5,000/- towards the maintenance of the child. On the

first objection raised by the petitioner/respondent, the learned Court

observed and rightly so that the application cannot be rejected merely

because it was filed invoking a wrong provision of law. So far as the

second objection raised by the petitioner is concerned, the Court

directed that the restoration application moved by the

respondent/petitioner would be considered only when the

respondent/petitioner complies with the directions with regard to the

payment of the maintenance amount for which he sought four weeks

time for compliance. The matter was adjourned by the Court for 2 nd

May, 2011 when again the learned Trial Court reiterated its earlier

direction to make the payment towards the maintenance amount for

considering his restoration application and the matter was adjourned

by the learned Trial Court for 16th May, 2011. On 16th May, 2011 the

said application moved by the respondent/petitioner was dismissed for

non-prosecution because of non-compliance of the said direction by

the respondent/petitioner to liquidate his liability towards the arrears

CRP No. 156 of 2011 Page 4 of 9 of maintenance amount. It is thereafter that the respondent/petitioner

had moved an application under Section 151 CPC to seek recalling the

order dated 16th May, 2011 and then to consider his application

moved by him under Order 9 Rule 4 CPC to seek restoration of his

petition.

5. It is a settled legal position that the power under Section 151

CPC is an addition to and complimentary to the powers expressly

conferred under the Code and can be exercised by the Courts to make

a suitable order to prevent the abuse of the process of Court and can

be exercised when there is no specific provision dealing with the

grant of relief as sought. It is also well settled that nothing can limit

or affect the inherent powers of the Court to meet the ends of justice

as power exercised by the Court under Section 151 CPC is ex debito

justitiae; to do real and substantial justice for the administration of

which alone the Court exists or to prevent abuse of the process of the

Court. The inherent powers of the Court are with respect to the

procedure followed by the Court in deciding the cause before it and

are conferred under the Code, but certainly the Courts will not

exercise inherent powers when such power could clearly conflict with

the powers expressly or by necessary implication conferred on the

CRP No. 156 of 2011 Page 5 of 9 Courts by the other provisions of the Code. In the case at hand, the

learned Matrimonial Court did not dismiss the application moved by

the respondent/petitioner under Order 9 Rule 4 CPC on merits, but

only on the ground that the respondent/petitioner had failed to comply

the direction given by the Court to pay the arrears of the maintenance

amount as a condition precedent to consider his restoration

application. The said order of the learned Matrimonial Court giving

the aforesaid direction to the respondent/petitioner, to first pay the

amount of maintenance and then to consider his application for

restoration was certainly exercised by the said Court invoking its

inherent powers as otherwise the Court was well within its

jurisdiction to have first decided the said application of the

respondent/petitioner looking into the sufficiency of reasons given by

the respondent for his non-appearance on 29.10.2010 when the said

divorce petition filed by him was dismissed in default. It is a well

accepted principle of practice that with a view to do complete justice

between the parties, the Courts exercise their inherent powers and

exercise of such powers by the Courts may not specifically fall under

any specific provisions of the Code. The direction given by the

Matrimonial Court to the respondent/petitioner to first pay the arrears

CRP No. 156 of 2011 Page 6 of 9 of the maintenance amount to consider his restoration application was

in exercise of such power by the Matrimonial Court, therefore, it

cannot be said that the learned Trial Court had in fact dismissed the

application of the respondent moved by him although wrongly labeled

under Order 9 rule 4 CPC on its merits, but in fact the said application

was dismissed by the learned Trial Court for non-prosecution. In the

application moved by the respondent under Section 151 CPC,

recalling of the order dated 16.5.2011 was sought by him on the

ground that already he had paid an amount of Rs. 90,000/- towards

the arrears of the maintenance amount and for the balance amount of

Rs. 30,000/- he undertook to pay the same within a period of three

months. With the said payment of the maintenance amount and the

undertaking of the respondent to pay further amount of maintenance,

the learned Trial Court found the conduct of the respondent justifiable

for recalling the order dated 16.5.2011 and for restoring his

application under Order 9 Rule 9 CPC. Learned Trial Court in para 7

of the impugned order clearly observed that the application of the

respondent moved by him under Order 9 Rule 9 was rejected only for

want of payment of the maintenance amount and since the respondent

could be said to have paid the said amount with the said undertaking

CRP No. 156 of 2011 Page 7 of 9 there was no reason left for the Court to deny the prayer of the

respondent to seek restoration of his divorce petition. This Court does

not find any illegality or perversity in the impugned order passed by

the matrimonial Court invoking its inherent power under Section 151

CPC and this Court also does not find that any jurisdictional error was

committed by the said Court in allowing the application of the

respondent moved by him under Order 9 Rule 9 CPC (wrongly labeled

under Order 9 Rule 4 CPC). This Court has taken a consistent view

that the matrimonial disputes needs to be adjudicated on its merits

and the substantive rights of the parties cannot be defeated by

adopting a hypertechnical approach that too on the basis of

procedural niceties.

6. It cannot be forgotten that procedural laws are handmaids of

justice and cannot come in the way of advancing the cause of justice.

As is held by the Apex Court time and again procedural law is not to

be a tyrant but a servant, not an obstruction but an aid to justice and

hence cannot stop the Court to give relief on merits to the parties.

7. The judgment cited by the petitioner also reiterates the settled

legal position with regard to powers under Section 151 of the Code

CRP No. 156 of 2011 Page 8 of 9 and would not thus help the petitioner to persuade this Court

otherwise.

8. In the light of the above, there is no merit in the present petition

and the same is hereby dismissed.

November 08, 2009 KAILASH GAMBHIR,J rkr

CRP No. 156 of 2011 Page 9 of 9