UDAI NARAIN BAJPAI Vs. KUSUM BAJPAI

JUDGEMENT

(1.) THIS is an appeal filed by the husband and arises out of proceedings initiated by him under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) for dissolution of his marriage with the respondent Smt. Kusum Bajpai by a decree of divorce. It was alleged in the petition that the parties had last resided at Kanpur and consequently the court at Kanpur had jurisdiction to entertain the petition. The petition was based mainly on the allegation that the respondent had committed adultery with persons named in paragraphs 9 and 10 thereof. However, those with whom the respondent was alleged to have committed adultery were not impleaded as respondents in the petition. The petition was resisted by the respondent. It was pleaded in defence that the parties had resided together at Lucknow and it was Lucknow court which had jurisdiction and not the court at Kanpur. It was further pleaded that since the appellant had filed his petition for divorce on the ground of adultery but had neither impleaded the alleged adulterers as respondents nor had along with the petition filed a separate application supported by an affidavit as required by Rule 6 (d) of the Rules framed by this Court (hereinafter referred to as the Rules) in exercise of powers under Sections 14 and 21 of the Act giving reasons for his omission to implead as co-respondents the alleged adulterers, the petition was not maintainable and was liable to be rejected. Issues were framed by the trial court. Of the issues framed one was with regard to maintainability of the petition in view of its being in disregard of Rule 6 and the other was as to whether the Kanpur Court had jurisdiction to entertain the petition. These two issues were taken up by the trial court as preliminary issues.

(2.) BEFORE the decision of these issues the appellant filed an application purporting to be under Order 1 Rule 10. Order 6 Rule 17 and Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code) praying for permission to amend the petition by impleading the alleged adulterers as co- respondents to the petition. While deciding the issue with regard to the maintainability or otherwise of the petition in view of non-compliance with Rule 6, the trial Court took up the application for amendment of the petition. On the issue of jurisdiction of the Court at Kanpur to entertain the petition, evidence was led by the parties. The trial Court held that the failure of the appellant to have either impleaded the alleged adulterers as co-respondents or in the alternative to have presented along with the petition an application in accordance with Rule 6 (d) of the Rules did not bar the Court from permitting amendment in the pleadings and allowing the alleged adulterers being impleaded as co- respondents subsequently. In this view of the matter, the learned Civil Judge, Kanpur, who tried the petition allowed the application purporting to be under Order 6, Rule 17 read with Order 1, R. 10 and Section 151 of the Code and permitted the appellant to implead the alleged adulterers as co- respondents in the petition. To compensate the respondent for any inconvenience caused to her the application for amendment was allowed on payment of Rs. 25 as costs. Summonses were ordered to be issued to the newly arrayed respondents. The respondent was allowed to file additional written statement. In the view taken by it, the trial court held that Issue No. 6 which related to the maintainability or otherwise of the petition on account of non-compliance with Rule 6 of the Rules had been rendered infructuous. The trial Court consequently struck off that issue. On a consideration of the evidence led, the trial Court held that the parties had last resided together at Kanpur and consequently the court at Kanpur had jurisdiction to entertain the petition. Issue No. 5 which was concerned with the jurisdiction of the Kanpur court to entertain the petition was accordingly decided in favour of the plaintiff. Both these matters were decided by the learned II Civil Judge, Kanpur by the same order on the 12th of September, 1967.

(3.) AGGRIEVED by the order of the court below the husband has appealed. It has been urged that under Section 28 of the Act no appeal lay against the order of the trial Court allowing amendment of the petition by addition of the alleged adulterers as respondents in the petition, and consequently the order of the court below appealed against was without jurisdiction and unsustainable in law. It was contended that against mere findings recorded on preliminary issues in a petition under Section 13 of the Act no appeal is contemplated by the Act. On the other hand learned Counsel for the respondent urged that Section 28 of the Act permits appeals against "all decrees and orders made by the Court in any proceeding under this Act", and since the order passed by the trial Court undisputably was an order in proceedings under Section 13 of the Act, Section 28 of the Act in terms was attracted and the order of trial Court was appealable. On a consideration of Section 28 of the Act I am of the view that the objection taken on behalf of the appellant with regard to the maintainability of the appeal before the tower Appellate Court has substance and must prevail. Section 28 of the Act runs as follows:-