REKHA CHAUHAN Vs. RAMESH CHANDRA CHAUHAN

JUDGEMENT

(1.) On persuation, the parties have agreed to live together, living a happy matrimonial life. They respondent-husband has undertaken to maintain the appellant, his wife. The have one son, by name Sudhirkumar, aged about 5 years, and a daughter by name Shanu, aged about 12 years. Both of them are school-going children-Daughter Shanu is studying in Class VIII, while the son Sudhirkumar is studying in K. G. standard.

(2.) Some misunderstanding caused in the mind of the respondent- husband led to this divorce petition, which in its first round was decreed ex parte. This Court by its judgment dated 8-4-1983, pasted in First Appeal No. 70 of 1982, set aside the judgment and decree passed by the Court below and directed the trial Court to fix the suit for evidence, with a clear direction that the parties will be responsible for producing their witnesses and will pay the necessary process-fee and deposit the diet money forthwith. The parties were directed to appear before the trial Court on 20-4-1983. But the present appellant failed to appear on that date and the trial Court fixed 2-5-1983 as the date for recording ex parte evidence. On that date the appellant appeared through her course, Shri Chouhan. The case was fixed for evidence on 22-7-1981. The parties appeared with their witnesses, but the recording of evidence had to be adjourned as no time was left with the court and the case was fixed for evidence on 23-7-1983. A perusal of this order-sheet goes to show that the appellant was present with her witnesses, as many as eight, as mentioned in this order-sheer, but because of paucity of time their statements could not be recorded and the case had to be postponed till next date for recording of evidence of three witnesses. The three witnesses were present on the date fixed, i. e. 24-8-1983, but their evidence could not be recorded by the Court on a request being made by the counsel for the appellant, which was not objected to by the respondent. The case was thereafter fixed for evidence on 27-9-1993. On this date as many as six witnesses were present before the Court, but the trial Court refused to examine them for want of list of witnesses being submitted by the appellant under Order 16, Rule 1, Civil Procedure Code. It is to be noted that these very witnesses were kept present even on 22-7-1983, 23-7-1983 and some of them on 24-8-1983. Thus, except for the statement of the appellant no other evidence could be adduced by her in support of her case.

(3.) The way, the trial court has handled this case, to say the least, cannot be approved of. When all the witnesses were present, they were required to be redieted or bound over for want of time and even when they remained present on the subsequent date, again for want of time the case was adjourned. In such matters, where evidence was to be recorded in a case under directions of this Court, with a fixed date given, it was incumbent on the trial Court to have accommodated the ease in its cause-list without having it to be adjourned for paucity of time and when witnesses were even produced and even on 27-9-1983 when as many as six witnesses were present, yet not examining them, there appears to be no justification for such non-examination of the witnesses, whom the appellant had kept present in the Court and some of them were in fact bound over by the Court. Merely for want of a list under Order 16, Rule 1(3), CPC, the Court refused to examine them. Although an application preferred by the appellant under Order 16, Rule 1(3) is on record, the order-sheet states that no application was moved, while the application is very much available on the record. Shri Shrivastava, learned counsel for the respondent pointed out that the application must have been moved after passing of the order. Lien that he so, it was incumbent on the trial Court to have examined the witnesses, who were actually present. In a dispute of such a nature, where the result is severance of relationship between the two spouses, hiper-technical approach and that too without any justifiable ground on the part of the trial Court deserves to be deprecated. It may be noted that one such witness, namely Badrilal, who was not listed by the respondent was in fact examined by the trial Court. Learned counsel Shri Shrivastava states that an application in that behalf had been moved, which was accepted by the trial Court, but there is no such application on record nor the order-sheet indicates that any such application was moved and order passed thereon.