ARUN LATA Vs. CIVIL JUDGE BULANDSHAHAR

JUDGEMENT

(1.) An application for vacating the stay order was filed on behalf of opposite party No. 2. The said application was listed for orders on 20/03/1997. Mr. Govind Krishna, learned counsel for the opposite party, took a preliminary objection. He contended that under Section 28 of the Hindu Marriage Act, an appeal lies against the impugned order before the learned District Judge. Therefore, the writ petition is not maintainable. Mr. A. Kumar, appearing on behalf of the petitioner, disputed the said contention on various grounds. Since the hearing could not be completed the matter was adjourned till 9th of April 1997. On the next date, it was further adjourned till 12/05/1997. On 25/04/1997, both the learned counsel pointed out that the matter was fixed on 24/04/1997 but by mistake the date was noted as 12/05/1997 in the order dated 9/04/1997. Accordingly the matter was fixed on 9/05/1997 instead of 12/05/1997 by an order dated 25/04/1997 by the consent of the parties for the reasons recorded in the order dated 25/04/1997.

(2.) On 9/05/1997, an application for amendment was filed in the Court by Mr. A. Kumar, copy of the said application was served upon Mr. Govind Krishna on 24/04/1997. Mr. Govind Krishna insisted that by reason of the interim order, the opposite party No. 2 has been suffering great prejudice. Therefore, the application for amendment may be taken up for hearing immediately. He submitted that in view of the statements made in the application for amendment which is a belated one, he does not propose to file any counter affidavit to the said application for amendment. However, he would contest the same on merit and the opposite party No. 2 does not admit any of the statements made in the said application for amendment. Mr. Govind Krishna also proposed that right from 20/03/1997, he was insisting upon disposal of the whole matter since the writ petition is not maintainable. Therefore, he is prepared to argue on the merit of the case along with his contention in opposition to the application for amendment. Therefore, the whole matter may be heard and the same may be finally disposed of. Mr. A. Kumar agree to the proposition. By the consent of the parties, the whole matter is taken up for hearing along with the application for amendment. Both the learned counsel addressed extensively on the merits of the case in support of their respective contentions while supporting and opposing the application for amendment. The question of disposal of the application for amendment also depended, as argued by both the counsel, on the merits of the case. The question was so intricate and involved the whole dispute it was necessary to refer to the merits of the case as well. For the sake of convenience and proper understanding of the dispute, the Court had agreed to the proposal suggested by both the learned counsel as above and treats the matter with the consent of the parties as on day's list for hearing together with the application for amendment and the application for vacating the interim order.

(3.) Since the facts are a little elaborate and appears to be on the marginal line of complicated one, reference to the facts would help us in grasping the emerging situation. The facts are not disputed by the learned counsel appearing on behalf of the parties. The admitted facts, as emerges from the record, are as folllows.