JUDGMENT
Tej Shankar, J.
1. Both these appeals arise but of a judgment and decree dated 5.8.1996 passed by Mr. N.K. Porwal, Seventh Additional Judge to the Court of District Judge, Gwalior, in two different Suit Nos. 149-A/92 and 159-A/92. It appears that one suit i.e. Suit No. 149-A/92 was filed by Rashid Khan against his wife for restoration of conjugal rights with the allegation that he married with respondent Smt. Jamila according to Muslim rites and a sum of Rs. 4,251 /- was fixed as Davar on 30.12.1990. Out of this union a son was born but he expired within a week. It was alleged that the defendant was in the habit of living at her parent’-‘ house. On 9.8.1992 she went with her brother and bhabhi for participating in God Bharai Ceremony on 11.8.1992. He went on 27.8.1992 to bring her back and then h is mother Smt. Nattho had said that she will be sent on 11.9.1992. At the time when she had gone to her parents on 9.8.1992 she had taken with her the articles detailed in para 5 of the plaint valuing Rs. 40/000/-. The defendant on the instigation of her parents gave a notice on 28.8.1992. She did not return and perform her marital obligations. She also did not return the articles valuing Rs. 40,000/-. The suit was contested by the defendant-wife on various grounds. The marriage was admitted but the amount of Dawar alleged by him was contested. It has been alleged that it was Rs. 4,786/-. She pleaded that after the marriage the treatment of the plaintiff-husband was cruel. He used to demand a sum of Rs. 10,000/- and a scooter and on this account he used to beather. She was turned out of house. She was asked to bring Rs. 10,000/- and scooter else she will be killed. She denied the allegation that she had taken the articles as mentioned by the plaintiff. The plaintiff had cultivated bad habits and had fallen in bad society and me articles given in Dahej were wasted by him. Hence the allegation of certain articles had been made falsely. She had filed a suit for divorce. She apprehended danger to her life in living with the plaintiff.
2. Suit No. 159-A/92 was filed by Smt. Jamila against her husband for divorce. It was alleged by her that the marriage had taken place on 30.15.1990 and the Davar fixed was Rs. 4.786/-. After the marriage she went to her in-laws house alongwith articles given by her parents and relations details of which has been given in the list appended with the plaint. After the marriage the treatment of the defendant was cruel. He used to beat her and used to pressurise her to bring Rs. 10,000/- and a scooter from her parents else she will be killed. The husband used to come drunk and he was in die habit of gambling. When she did not give money, she was beaten. Out of the wed-lock a son was born which expired. He turned her out and asked her to return with Rs. 10,000/- and a vehicle. On 14.9.1992 he went to her house with some unwanted persons fully armed. At that time she and her bhabhi were present. The defendant and unwanted persons were drunk. They demanded a sum of Rs. 10,000/- from her and when she refused they entered the house and beaten her. They thereafter somehow went away. A report was lodged in the police station on 15.9.1992 in that regard. She apprehended danger to her life and under the circumstances she wanted to get rid of the defendant and hence the suit for divorce was filed. Defendant Rashid Khan contested the claim and denied the amount of Davar as Rs. 4,786/-. He said that Davar was fixed at Rs. 4,251 /-. He also denied the allegation of demand of Rs. 10,000/- and scooter as well as of cruelty. The allegations made by him in his suit have been reiterated in the written statement which need not be repeated. In the additional pleas it was alleged that in case the Court was of the opinion that the wife was entitled to divorce it was in the interest of justice that an order for return of arguments valuing Rs. 40,000/- be passed.
3. The learned Trial Court framed issues separately in both the suits. No order for consolidation of the suits was, however/passed. It appears that the evidence was actually recorded in one of the cases and a carbon copy was kept in the record of the other. A perusal of the order-sheet shows that evidence of wife Smt. Jamila was recorded initially which states that the case filed by the wife started and copy of the statements were put on the other case. Learned Counsel for the appellant contended that the learned Court has given wrong findings of fact. The learned Trial Court has decreed the suit of the wife for divorce whereas it dismissed the suit for restoration of conjugal rights. He contended that under the Muslim Law divorce could not be decreed. There are certain pre-conditions. On the other hand, reliance has been placed upon the Dissolution of Muslim Marriages Act. Learned Counsel for the appellant referred to the provisions of Muslim Personal Law (Shariyat) Application Act, 1937.
4.1 have considered the contentions raised before me and after giving my anxious consideration I am of the opinion that in the present case procedure adopted by the learned Counsel below in trying both the cases is totally against the law. What the learned Court has done is that he recorded statements of witnesses in the case filed by the wife and put a carbon copy on the record of the other case. This procedure does not appear to be in accordance with law. I fail to understand under what provision of C.P.C. such a procedure was adopted. The learned Counsel appearing for the parties too have not been able to bring to my notice any procedure under which carbon copy of statements recorded in one case can be put on the record of the other. In this view of the matter, I am of the view that practically there is no legal evidence in the case filed by the husband. Consequently, the ends of justice demand that an opportunity should be given to the parties to adduce legal evidence in that case and it be decided after taking evidence as the parties may lead.
5. As the matter in both the cases is, more or less, similar except certain facts which have been alleged by the husband in his suit. It will not be desirable to give a finding in the suit filed by the wife because it may affect the decision in the other case filed by the husband. Consequently, both the judgment, and decrees passed in both the cases have to be set aside and both the cases have to be remanded. However, there is legal evidence in the case filed by the wife no other evidence is required in that case as it has to be decided afresh after evidence is recorded in the other case filed by the husband. The learned Trial Court should decide both the cases simultaneously after evidence is recorded in the case filed by the husband. Consequently both the appeals are allowed; The judgment ark} decree passed in both the suits are set aside. Both the cases are remanded to the learned Trial Court for decision afresh. The learned Trial Court shall decide the case filed by the wife after hearing the parties afresh after evidence in other case is recorded. The learned Trial Court may hear both the cases together and decide together but after the evidence is recorded in the case filed by the husband in the light of the observations made above. No evidence shall be allowed in the case filed by the wife. Costs of both the appeals shall remain easy.
6. Parties shall appear before the Trial Court on 1.10.1997. The learned Court below shall decide both the cases expeditiously.
7. Let an entry be made in the Character Roll of the learned Presiding Officer (Mr. N.K. Porwal, Seventh Additional Judge to the Court of District Judge, Gwalior) that he has no knowledge of the procedure to be adopted. Let a copy of this judgment be forwarded to the Registrar General, High Court of Madhya Pradesh, Jabalpur, for necessary action. Let a copy of this judgment be placed with the record of the other case.