KALPANA CHOUDHURY Vs. JATINDRA KR. CHOUDHURY

JUDGEMENT

(1.) A point of some importance requires our determination in this appeal. The question is whether provisions of Order 9 Rule 13, Civil Procedure Code, are applicable to a proceeding under the Hindu Marriage Act, for short "the Act". The question has arisen on these facts. The respondent-husband filed a petition before the learned District Judge, Jorhat, praying for a decree of divorce against his wife. This case came to be decreed ex-parte on 27.11.84. A petition under Order 9 Rule 13 was filed on 31.5.85 which was dismissed on 30.4.86 on the ground that it did not lie. In assailing the maintainability of this petition, the Counsel for the respondent relied on a decision of a learned Single Judge of this Court in Anjan Kumar Vs. Minakshi, AIR 1985 Gau. 44 in which it has been held that against an ex-parte decree in a proceeding under the Act only appeal lies to this court and not an application under Order 9 Rule 13. The appellant has challenged the view taken in the aforesaid decision by this court.

(2.) The aforesaid view was however taken by referring to Sec. 28(1) of the Act, which is in the following language :

(3.) It is then contended by Sri Barua that there is nothing in Sec. 28 to run counter to what has been stated in Sec. 21. It has been further urged by the learned counsel by referring to G. Vijayalakshmi Vs. G. Ramachandra Sekhar Sastry, AIR 1981 SC 1143 , in which scope of Sec. 21 of the Act was dealt with, that the Sec. having stated that all proceedings under this Act shall be regulated by the Code of Civil Procedure, 1908, no distinction was sought to be made between procedural and substantive provisions of the Code. It was further pointed out in this decision that the phrase "as far as may be" means and intends to exclude only those provisions of the Code as are or may be inconsistent with any of the provisions of the Act. Filing of a petition under Order 9 Rule 13 cannot be said to be inconsistent with the provisions contained in Sec. 28, which deals with appeals. These two are independent remedies and it is for the suitor or for the parties concerned to decide which remedy he would like to avail. Our attention has also been drawn by Sri Baruah to Grindlays Bank Vs. Contral Govt. Industrial Tribunal, AIR 1981 SC 606 , wherein though it was stated that the Board, Court, Labour Court, Tribunal and National Tribunal shall be vested, in view of what has been stated in Sec. 11 of the Industrial Disputes Act, 1947 with the named powers exercised by Civil Court, even so it was held that Order 9 Rule 13 would he applicable in a proceeding before the named adjudicatory authority. We are then referred by the learned counsel to Indira Kashyap Vs. K.N. Kashyap, (1984) 3 SCC 107 , wherein a petition under Order 9 Rule 13 was decided on merits without any party having raised any objection regarding the maintainability of the same even though the case was under the Act. From this decision it cannot however be held that the Apex Court has held that the provisions of Order 9 Rule 13 would apply in a proceeding under the Act.