MUJHAIL SINGH Vs. JAGIR KAUR

JUDGEMENT

(1.) This petition under S.115 of the Code of Civil Procedure is directed against an order dated Oct. 24,1981, of the Additional District Judge, Hoshiarpur, whereby he has recorded a finding that the respondent wife, Smt. Jagir Kaur, has satisfied the decree passed in favour of the appellant husband under S.9 of the Hindu Marriage Act (for short, the Act). The question that such a satisfaction can be recorded at the instance of the wife (judgment-debtor) appears to have been settled by a Division Bench of this Court in M.P. Shreevastava v. Mrs. Veena, AIR 1966 Punjab 506. All that needs to be seen in this petition is as to whether the learned lower Court could record such a finding in the instance case The undisputed facts are as follows :

(2.) On June 14, 1980, Additional District Judge, Hoshiarpur, granted a decree under S.9 of the Act in favour of Mujhail Singh and against the respondent wife. On January 31, 1981, Jagir Kaur filed an application before the said Court with the allegation that in spite of her best efforts in the form of writing letters to the husband and to join and live with him as his wife, she had failed. She further prayed that lest the husband may take advantage of this decree in securing a decree of divorce against her, the Court should record a finding that the decree stood satisfied as, according to her, it was the husband who thwarted all her attempts to perform her marital duties as a wife. In response to a notice issued to the petitioner husband he filed his reply on May 25, 1981 controverting the allegations made by the respondent in her application. The Court vide its order dated August 17, 1981, directed Mujhail Singh to be personally present in Court on September 9, 1981. On that day, Mujhail Singh made the following statement:-

(3.) Having heard the learned counsel for the parties at some length, I find that the above noted finding recorded by the lower Court cannot possibly be sustained. As already pointed out, the lower Court failed to even examine the parties to the decree what to talk of any other evidence in support of their respective versions. Thus on the face of it the finding recorded by the lower Court is not based on any evidence. Mere allegations in the application or reply to the same cannot possibly be treated as evidence and no legal or conclusive finding could possibly be recorded on the basis of those allegations alone. Since the parties were at variance and had chosen to contest each other's stand, the only legal and proper course open to the lower Court was to frame a regular issue on the point and to direct the parties to lead evidence in support of their respective cases. This not having been done I see no other course open except to set aside the impugned order dated Oct. 24, 1981 and send the case back to the Additional District Judge, Hoshiarpur, to re-decide the whole matter on merits in the light of the observations made and in accordance with law. The parties through their counsel are directed to appear before him on April 16, 1984. Since the decision in this case is likely to affect the merits of the appeal filed by the respondent wife against the decree of divorce granted against her and in favour of the petitioner, it is expected that the Additional District Judge would dispose of this application without undue loss of time and preferably within six months from the receipt of the records of this case. I, however, pass no order as to costs. Revision allowed.