P C JAIRATH Vs. AMRIT JAIRATH

JUDGEMENT

(1.) THE following question has been referred to Division Bench in pursuance of the order of Narula J. :-

(2.) THE facts giving rise to the above reference are that the appellant P. C. Jairath on getting a notice from his wife Mrs. Amrit Jairath respondent, filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights against the respondent in the District Court at Calcutta on 18th June, 1965. The respondent thereafter filed a petition under Sections 10 and 25 of the Hindu Marriage Act on 28th August, 1965 in the District Court at Delhi for judicial separation and payment of maintenance against the appellant. The appellant made an application dated 8th October, 1965 under Sections 10 and 151 of the Code of Civil Procedure in the Court of Subordinate Judge, Delhi, to whom the petition for judicial separation and payment of maintenance had been allotted, for stay of the Delhi petition on the ground that his earlier petition for restitution of conjugal rights was pending in the District Court at Calcutta. According to the appellant the matter in issue in the two petitions in the District Court at Calcutta and the Delhi Court was substantially the same and as the proceeding at. Calcutta had been initiated earlier the proceedings in Delhi Court were liable to be stayed. The appellant's application for stay was resisted by the respondent and was dismissed by the learned Subordinate Judge 1st Class Delhi as per order dated 11th February, 1966. It was held that it was not a fit case in which the proceedings in the suit pending in the Delhi Court should be stayed under Section 10 or Section 151 of the Code of Civil Procedure. The husband then came to this Court in appeal against the above order of the trial Court refusing to stay the proceedings.

(3.) AT the hearing of the appeal a preliminary objection was raised on behalf of the respondent about the maintainability of the appeal on the ground that no appeal lay against the order under appeal. The learned Single Judge felt that the matter was of importance and not free from difficulty. Note was also made of the fact that divergent views had been expressed by the Courts. The matter was consequently referred to the Division Bench.