GAURI DEVI Vs. BISHWANATH BANERJEE

JUDGEMENT

(1.) THIS appeal is directed against an order of remand passed by the lower appellate Court to the effect that the suit to be reheard and decided in accordance with law and in the light of the observations made by the lower appellate Court.

(2.) THE suit which has given rise to this appeal was filed by Vishwanath Banerji, the plaintiff-respondent, in the Court of the Munsif of Varanasi for a declaration that an order dated 19-7-1961 passed by Sri H. K. Sharma, Magistrate First Class, Deoghar District Santhal Parganas Bihar in Criminal Case No. 376 of 1961, misc. , case No. 125 of 1961, Smt. Gauri Banerji v. Vishwanath Banerji, under Section 488, Criminal P. C. , was illegal, ultra vires, void, ineffective and unenforceable and for a permanent injunction restraining the defendant from taking any steps to realise by distress warrants or otherwise any sum of money from the plaintiff in pursuance of the said order. Admittedly Vishwanath Banerji and Smt. Gauri Banerji are husband and wife having been married at Deoghar in Bihar in 1958. Admittedly both of them last resided in Varanasi. It was alleged by the plaintiff that his wife Smt. Gauri went away to her father's place in May 1959 to see her ailing father but refused to return to him despite his best efforts. The plaintiff then took proceedings under Section 9 of the Hindu Marriage Act against his wife Smt. Gauri Devi for restitution of conjugal rights and it was registered as case No. 29 of 1960 in the Court of District Judge, Varanasi During the pendency of the said proceedings for restitution of conjugal rights Smt. Gauri Banerji applied for interim maintenance and expenses for defending the case. This application was rejected. It was then alleged that without the knowledge of the plaintiff and without any notice being served upon him, Smt. Gauri took proceedings before the Magistrate in Deoghar under Section 488, Criminal P. C. and that she and her fattier fraudulently before the Court having represented that the notices had been served, got an order behind the back of the plaintiff directing the plaintiff to pay a sum of Rs. 70 per month as maintenance. It was also alleged that the plaintiff only knew of the said order when distress proceedings were started against him by the police at Varanasi and a threat was made for attachment of his properties. To protect himself from the alleged illegal attachment the plaintiff filed the suit giving rise to this appeal and for the relief mentioned above.

(3.) THE learned First Additional Munsif before whom the instant suit came up for hearing held that the Civil Court had no jurisdiction to entertain a suit for setting aside of an order duly passed by a Magistrate under Section 488 of the Cri. P. C. and dismissed the suit on this preliminary point. On appeal by the plaintiff the learned Judge of the lower appellate Court took a contrary view and held that the suit was cognizable by a Civil Court as it was based on a cause of action alleging fraud and because the order of the Magistrate of Deoghar passed under Section 488, Criminal P. C. was impugned as vitiated not having been duly passed. The learned Judge set aside the decree of the learned Munsif and remanded the suit for rehearing in accordance with law. It is against this order that Smt. Gauri Banerji the defendant, has filed this appeal.