ORDER
Binod Kumar Roy, J.
1. The petitioner assails in this revision application an order restraining him from operating a locker on certain terms and conditions during the pendency of a proceeding under Section 13 of the Hindu Marriage Act. (hereinafter to be referred to as the Act). Since Opposite party No. 2 is not a necessary party, this revision application is being disposed of at the admission stage itself with consent.
2. The petitioner prayed for dissolution of his marriage and also for granting a decree of divorce against opposite party No. 1 by initiating a proceeding under Section 13 of the Act.
3. The opposite party No. 1 put in a petition supported by her affidavit (Anne-xure-1) under Section 151 read with Order XXXIX Rules 1 and 2 and Section 94 of the Code of Civil Procedure (hereinafter to be referred to as the Code) for restraining the petitioner from operating Locker No. 105 of the Punjab
National Bank, Boring Road Branch, Patna. She alleged that she has kept her ornaments in the said Locker which stands in their joint names and which is operatable jointly by both. The petitioner who has kept the key of the Locker, by bringing the Officers of the said Bank in collusion, wants to take away the ornaments. She wrote a letter to the Manager of the Bank who, however, gave no reply. It appears that she in her turn alleged charge of adultery etc. against the petitioner himself through a separate petition. She also mentioned the ornaments kept in the said Locker. A rejoinder (Annexure-2 to the petition) was filed by the petitioner resisting the prayer of the opposite party No. 1. The petitioner asserted, inter alia, therein that the proceeding under the Hindu Marriage Act is not a suit and thus the jurisdiction of a Civil Court as envisaged under the Code cannot be invoked, that the alleged ornaments are neither the property in dispute nor it belonged to her, that the list describing the ornaments is exaggerated, there the locker is not to be operated jointly and that the charge of collusion is also incorrect. The court below restrained the petitioner from operating alone the Locker in question holding that it stands in their joint names giving liberty, however that in case of necessity they, in presence of the authorities of the Bank, and after seeking prior permission of the court, may operate the said Locker,
4. Mr. Chandramauli Kumar Prasad, learned counsel appearing for the petitioner, submits as follows:–
i) The court below has illegally invoked Section 27 of the Act. The locker and the ornaments kept therein are not subject matter of the dispute. There being no pleading that the said ornaments were presented at or about the time of the marriage, no order could be passed in relation thereto and accordingly, the order in question is without jurisdiction.
ii) In any view of the matter, the said order could not have been passed at the interlocutory stage of the proceedings.
5. Mr. Chandrasen Prasad Singh, learned counsel appearing for opposite party No. 1, on the other hand, submits as follows:–
i) The court below has correctly appreciated Section 27 of the Act. It has got jurisdiction to pass the order in question in the interest of justice. The petitioner wants to take advantage of the slight omission in the pleading. At the time of argument it was not disputed that the ornaments in question were’ not such properties to which Section 27 of the Act does not apply.
ii) On the admitted case of the parties and the finding of the court below, the Locker in question belongs jointly to the petitioner and opposite party No. 1.
iii) Justice having been done, no interference is required with the impugned order.
6. Section 21 of the Act runs as follows :–
“21. Application of Act 5 of 1908 –Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be by the Code of Civil Procedure, 1908.”
7. Section 27 of the Act runs as follows :–
“27. Disposal of property — In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage which may belong jointly to both the husband and the wife.”
8. Section 114 of the Indian Evidence Act runs as follows :–
“The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case.”
9. It is true that there is no specific pleading by opposite party No. 1 in her petition (annexure-1) that the ornaments in question were presented at or about the time of marriage and that the said ornaments do find mention in the petition under Section 13 of the
Act filed by the petitioner but it is clear that during arguments in the court below it was not disputed that the ornaments in question were not presented at or about the time of marriage the petitioner thus now wants to take advantage of an omission. It is not the case of the petitioner that he made them later on. The question is whether the court is helpless and powerless to protect a wife when her allegation is that her husband wants to part away with her valuables from the Locker which admittedly stands jointly in the name of the wife and husband both when by virtue of Section 21 of the Act, all proceedings under the Act are to be regulated by the Code of Civil Procedure. Section 23-A of the Act talks of preference of a counter claim by an adversary in a matrimonial proceedings. The parties, however, are silent as to whether any counter claim has been made in the court below or not.
10. At this stage, one can safely deduce that the Locker having stood jointly in the names of the wife and husband, it will be presumed that the ornaments kept therein belong to both and not to one atone.
11. The scope of Section 151 of the Code is very wide. In the case of Newabganj Sugar Mills Co. Ltd. v. Union of India reported in AIR 1976 SC 1152 Krishna Iyer, J. observed as follows:–
“The inherent power has its roots in necessity and its breadth is co-extensive with the necessity — Certainly, we cannot go against any statutory prescription”
12. The said observation was followed by a Five Judges Full Bench of this Court in Bajrang Rai v. Ismail Mian reported in AIR 1978, Patna 339 which also laid down the following ratio (at page 347) :–
“(1)The inherent powers of the Court are very wide and are not in any way controlled by the provisions of the Code.
(2) They are in addition to the powers specially conferred on the Court by the Code and the Courts are free to exercise them.
(3) The only limitation put on the exercise of the inherent powers is that when exercised, they are not in conflict with what has been expressly provided for, or those exhaustively covering a particular topic, or against the intention of the Legislature. These limitations are not due to the fact that the inherent power is controlled by the Code, but because it should be presumed that the procedure specifically provided for orders in certain circumstances is dictated by the interests of justice,
(4) Inherent powers are to be exercised where specific provision does not meet the necessities of the case.”
13. The court while determining proceedings under the Act has got all powers of the Civil Courts subject to certain special provisions under the Act. It has also inherent power to pass orders which are necessary for the ends of justice or to prevent abuse of the
powers of the Court. Section 27 of the Act clothes jurisdiction in court to pass appropriate orders before the passing of the decree. Even under its inherent powers as well the court could have passed the order in respect to the property uncovered by Section 27 of the Act. In the said backdrop I am of the view that the court below had correctly exercised its jurisdiction in passing the direction in question.
14. I do not find any valid reason in exercise of my discretionary jurisdiction to interfere with the impugned order also.
15. This civil revision application is accordingly dismissed but as this matter is being disposed of at the admission stage itself in which the Opposite party No. 1 has entered appearance of her own, there will be no order as to costs.