{"id":156238,"date":"2009-10-29T00:00:00","date_gmt":"2009-10-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-vandana-gyandhar-vs-shri-pawan-kumar-ors-on-29-october-2009"},"modified":"2016-10-29T20:35:40","modified_gmt":"2016-10-29T15:05:40","slug":"ms-vandana-gyandhar-vs-shri-pawan-kumar-ors-on-29-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-vandana-gyandhar-vs-shri-pawan-kumar-ors-on-29-october-2009","title":{"rendered":"Ms. Vandana Gyandhar vs Shri Pawan Kumar & Ors. on 29 October, 2009"},"content":{"rendered":"
Delhi High Court<\/div>\n
Ms. Vandana Gyandhar vs Shri Pawan Kumar & Ors. on 29 October, 2009<\/div>\n
Author: Hima Kohli<\/div>\n
*           IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+                      R.F.A. No.193\/2000\n\n                                       Reserved on   : 08.10.2009\n                                       Pronounced on : 29.10.2009\nIN THE MATTER OF :\n\nMS. VANDANA GYANDHAR                            ..... Appellant\n                 Through: Mr. C.M. Khanna, Adv.\n\n                  versus\n\nSHRI PAWAN KUMAR & ORS.                   ..... Respondents\n                 Through: Mr. Amitabh Narayan with\n                          Mr. Avdesh Singh, Adv.\n\nCORAM\n\n* HON'BLE MS.JUSTICE HIMA KOHLI\n\n     1. Whether Reporters of Local papers may be allowed to see the\n        Judgment? Yes.\n\n     2. To be referred to the Reporter or not? Yes.\n\n     3. Whether the judgment should be reported in the Digest? Yes.\n\n\nHIMA KOHLI, J.\n<\/pre>\n
1.           Challenge in the present appeal is laid to the judgment<\/p>\n
dated 30.11.1999 passed in a suit instituted by the appellant (plaintiff<\/p>\n
in the court below) against the respondents for declaration and<\/p>\n
R.F.A. No.193\/2000                                       Page 1 of 15<\/span>
\n mandatory injunction.      The aforesaid suit of the appellant was<\/p>\n
dismissed by the trial court on the ground that the same had been<\/p>\n
filed by concealing material facts. Before adverting to the pleas raised<\/p>\n
on behalf of both the parties, it would be appropriate to state in brief<\/p>\n
the facts of the case.\n<\/p>\n
2.         The appellant married respondent No.1 on 9.2.1992 in New<\/p>\n
Delhi and both the parties stayed in Delhi till 12.8.1992, whereafter<\/p>\n
they left for U.S.A. to pursue higher studies. It is an admitted position<\/p>\n
that on 29.6.1995, a decree of dissolution of marriage of the appellant<\/p>\n
and the respondent No.1 was granted by the Circuit Court of State of<\/p>\n
Oregon, United States of America.     The appellant made an averment<\/p>\n
to the said effect in the plaint and stated that she did not join the<\/p>\n
proceedings and an ex parte decree was obtained by the respondent<\/p>\n
No.1.\n<\/p>\n
3.         As per the claim of the appellant as narrated in the plaint,<\/p>\n
prior to the decree of dissolution of marriage obtained by the<\/p>\n
respondent No.1 in June, 1995, the issue of settlement of “stridhan<\/p>\n
property” of the appellant was discussed between her and the<\/p>\n
respondent No.1 and also between the parents of the respondent No.1<\/p>\n
and the father of the appellant.     However, no settlement could be<\/p>\n
R.F.A. No.193\/2000                                        Page 2 of 15<\/span>
\n arrived at between the parties.   On 26.6.1997, the appellant sent a<\/p>\n
legal notice to the respondents demanding return of her stridhan<\/p>\n
property, which was refuted by the respondents.       As a result, on<\/p>\n
2.2.1999, the appellant instituted a suit for declaration and mandatory<\/p>\n
injunction in the trial court against her erstwhile husband, respondent<\/p>\n
No.1, and his parents, respondents No.2 & 3.\n<\/p>\n
4.        Summons to the respondents were issued in the suit on<\/p>\n
2.2.1999, returnable on 23.4.1999.    On 23.4.1999, a statement was<\/p>\n
made on behalf of the respondents that the appellant and the<\/p>\n
respondent No.1 had got their marriage dissolved in U.S.A.             After<\/p>\n
considering the submissions made on behalf of the respondents, the<\/p>\n
learned ADJ adjourned the matter to 13.9.1999 so as to see, whether<\/p>\n
the appellant, who was also residing in USA, while seeking divorce in<\/p>\n
the court in USA, had settled the issue of stridhan, dowry articles and<\/p>\n
maintenance, etc. and directed for the personal appearance of the<\/p>\n
appellant to record her statement under the provisions of Order 10<\/p>\n
CPC. On 13.9.1999, the Trial Court noted as below :\n<\/p>\n
           “Case is today fixed for personal appearance of the
\n     petitioner. Last hearing was fixed on 23rd April, 99, a date<\/p>\n
R.F.A. No.193\/2000                                      Page 3 of 15<\/span>
\n      of almost 5 months was given for appearance of the
\n     petitioner because petitioner was stated to be in U.S.A. It
\n     is also admitted fact that parties i.e. petitioner and
\n     erstwhile husband after married had migrated to U.S.A. and
\n     got their marriage dissolved in U.S.A. This petition has
\n     been filed by the father of Ms. Vandana Gyandhar claiming
\n     Istridhan etc. The laws of U.S.A. on rights of women are
\n     more stringent than in India and petitioner must have made
\n     claim for her property etc. in U.S.A.         A copy of the
\n     judgment of divorce in U.S.A. be filed in the court by the
\n     petitioner. Counsel for the petitioner states that petitioner’s
\n     father had earlier taken some treatment in U.S.A. Now he
\n     has gone for check up to U.S.A. so the petitioner is not able
\n     to come to India for appearance in this case because her
\n     father has gone to U.S.A. for check up. Last opportunity is
\n     given to the petitioner for her personal appearance for
\n     recording her statement under Order 10 CPC, failing which
\n     it will be deemed that petitioner is not interested in
\n     prosecuting this petition because this petition has been filed
\n     by her only to harass the respondent.\n<\/p><\/blockquote>\n
          To come up for her personal appearance on 18-11-99
\n     and for filing of the copy of the judgment.”\n<\/p><\/blockquote>\n
5.         On 18.11.1999, the matter was renotified for 30.11.1999.<\/p>\n
On 30.11.1999, though the appellant was not present, an affidavit<\/p>\n
sworn by her in the State of Maryland, USA was filed. On the same<\/p>\n
date, the impugned judgment came to be passed dismissing the suit of<\/p>\n
the appellant on the ground that she had filed the same by concealing<\/p>\n
material facts.\n<\/p>\n
6.         Counsel for the appellant submitted that the impugned<\/p>\n
R.F.A. No.193\/2000                                        Page 4 of 15<\/span>
\n judgment is erroneous for the reason that the suit of the appellant<\/p>\n
could not be dismissed on the ground of `concealment of material<\/p>\n
facts’.   It was submitted that mere non-appearance of the appellant<\/p>\n
before the learned ADJ for her examination under Order 10 CPC, could<\/p>\n
not be a ground for dismissing her suit, particularly, when her father<\/p>\n
had instituted the suit on her behalf in the capacity of her power of<\/p>\n
attorney, and he was available to furnish necessary information and<\/p>\n
answer any questions relating to the suit.    It was further stated that<\/p>\n
dismissal of the suit by invoking the provisions of Order 10 Rule 4 CPC,<\/p>\n
was unjustified in the facts of the present case as there was no<\/p>\n
occasion for the power of attorney of the appellant, namely, her<\/p>\n
father, or the counsel for the appellant being unable to answer any<\/p>\n
material questions posed by the Trial Court relating to the suit.<\/p>\n
7.         It was further submitted on behalf of the appellant that<\/p>\n
after entering appearance, the respondents had not been called upon<\/p>\n
to file their written statement, the stage of framing of issues had yet<\/p>\n
to arise and that till the said stage arose, the physical absence of the<\/p>\n
appellant before the court could not be so fatal as to dismiss her suit.<\/p>\n
R.F.A. No.193\/2000                                        Page 5 of 15<\/span>
\n It was further urged that without framing issues on law and facts, the<\/p>\n
issue with regard to the claim of the appellant for return of her<\/p>\n
stridhan could not be decided on a bare reading of the decree of the<\/p>\n
Circuit Court of State of Oregon, United States of America and that the<\/p>\n
court ought to have directed completion of pleadings, filing of<\/p>\n
documents and framing of issues before returning a finding on<\/p>\n
maintainability of the suit.\n<\/p>\n
8.         The main plank of the arguments urged by the counsel for<\/p>\n
the respondents was that the decree of divorce dated 29.6.1995<\/p>\n
passed by the Circuit Court of State of Oregon, United States of<\/p>\n
America was a composite decree which also provided for distribution of<\/p>\n
properties of both parties and which was binding on both the parties.<\/p>\n
He stated that the appellant having accepted the aforesaid divorce<\/p>\n
decree and having acted thereupon by re-marrying in the USA, cannot<\/p>\n
be permitted to challenge a part thereof by preferring a suit.   He also<\/p>\n
submitted that apart from the operative para of the impugned<\/p>\n
judgment, whereby the suit of the appellant was dismissed for<\/p>\n
concealment of material facts, mention was made of the judgment of<\/p>\n
the US Court and the learned ADJ rightly took notice of the fact that<\/p>\n
the parties were bound by the decision of the US Court with regard to<\/p>\n
R.F.A. No.193\/2000                                       Page 6 of 15<\/span>
\n the divorce and settlement of property and thus dismiss the suit of the<\/p>\n
appellant in limine. He sought to support the impugned judgment by<\/p>\n
urging that though it was not specifically mentioned, the trial court<\/p>\n
had in fact invoked the provisions of Order 7 Rule 11 (d) CPC, which<\/p>\n
empowers the court to reject a plaint where the suit appears from the<\/p>\n
statement in the plaint, to be barred by any law.\n<\/p>\n
9.         In rejoinder, counsel for the appellant reiterated that while<\/p>\n
the divorce decree passed by the US Court was not under challenge,<\/p>\n
the relief sought by the appellant in the suit for return of her stridhan<\/p>\n
could not be governed by the courts in USA, who did not have any<\/p>\n
jurisdiction over the said property, and that in any case, whether<\/p>\n
stridhan was a part of the properties, as mentioned in the decree<\/p>\n
dated 29.6.1995 passed by the Circuit Court of State of Oregon,<\/p>\n
United States of America, or not, was an arguable point on which<\/p>\n
issues ought to have been framed and parties ought to have been<\/p>\n
permitted to lead evidence.\n<\/p>\n
10.        The short question which engages the Court in the present<\/p>\n
appeal is whether the trial court was justified in dismissing the suit of<\/p>\n
R.F.A. No.193\/2000                                        Page 7 of 15<\/span>
\n the appellant on the ground of concealment of material facts or not ?<\/p>\n
11.        The provisions of Section 9 of the CPC provide that the civil<\/p>\n
court shall have jurisdiction to try all suits of a civil nature except such<\/p>\n
suits cognizance of which is either expressly or impliedly barred.<\/p>\n
Thus, there is an inherent right in every person to institute a suit of a<\/p>\n
civil nature and to maintain such a suit, he does not require any<\/p>\n
authority of law as long as there is no statutory bar to the suit.<\/p>\n
Reference in this regard may be made to the case entitled Smt. Ganga<\/p>\n
Bai vs. Vijay Kumar & Ors.,<\/a> reported as (1974) 3 SCR 882, wherein<\/p>\n
the court held as below :\n<\/p>\n
           “There is an inherent right in every person to bring
\n           suit of a civil nature and unless the suit is barred by
\n           statute one may, at once peril, bring a suit of one’s
\n           choice. It is no answer to a suit, howsoever frivolous
\n           the claim, that the law confers no such right to sue. A
\n           suit for its maintainability requires no authority of law
\n           and it is enough that no statute bars the suit.”\n<\/p><\/blockquote>\n
12.        Similarly, in the case of Dhannalal vs. Kalawatibai & Ors.,<\/p>\n
reported as (2002) Supp. 1 SCR 19, while adverting to the aforesaid<\/p>\n
observation made in the case of Smt. Ganga Bai (supra), the Supreme<\/p>\n
Court observed as below :\n<\/p>\n
           “Plaintiff is dominus litis, that is, master of, or having
\n           dominion over, the case. He is the person who has<\/p>\n
R.F.A. No.193\/2000                                          Page 8 of 15<\/span>
\n           carriage and control of an action. In case of conflict of
\n          jurisdiction the choice ought to lie with the plaintiff to
\n          choose the forum best suited to him unless there be a
\n          rule of law excluding access to a forum of plaintiff’s
\n          choice or permitting recourse to a forum will be
\n          opposed to public policy or will be an abuse of the
\n          process of law.”\n<\/p><\/blockquote>\n
13.       In the case of Abdul Gafur & Anr. vs. State of Uttarakhand<\/p>\n
& Ors., reported as (2008) 10 SCC 97, while taking note of the<\/p>\n
aforesaid two judgments, the Supreme Court observed as below :<\/p>\n
          “16. It is trite that the rule of pleadings postulate
\n          that a plaint must contain material facts. When the
\n          plaint read as a whole does not disclose material facts
\n          giving rise to a cause of action which can be
\n          entertained by a civil court, it may be rejected in
\n          terms of Order 7, Rule 11 of the Code. Similarly, a
\n          plea of bar to jurisdiction of a civil court has to be
\n          considered having regard to the contentions raised in
\n          the plaint. For the said purpose, averments disclosing
\n          cause of action and the reliefs sought for therein must
\n          be considered in their entirety and the court would not
\n          be justified in determining the question, one way or
\n          the other, only having regard to the reliefs claimed
\n          de’hors the factual averments made in the plaint.”\n<\/p><\/blockquote>\n
14.       Coming to the case in hand, after summons in the suit were<\/p>\n
R.F.A. No.193\/2000                                        Page 9 of 15<\/span>
\n issued, appearance had been entered on behalf of the respondents. In<\/p>\n
the complete absence of any pleadings and relevant documents, apart<\/p>\n
from a certified copy of decree of dissolution of marriage passed by<\/p>\n
the Circuit Court of State of Oregon, United States of America, and a<\/p>\n
couple of documents filed by the appellant, dismissing the suit in<\/p>\n
limine on the ground of non-furnishing of the correct addresses of the<\/p>\n
appellant and the respondent No.1, both of who were living in USA, is<\/p>\n
rather harsh and not a consequence envisaged in the Code of Civil<\/p>\n
Procedure.     Strictly speaking, the trial court did not invoke the<\/p>\n
provisions of Order X, Rule 2 CPC, while pronouncing the judgment.<\/p>\n
Instead, it dismissed the suit on grounds of concealment of material<\/p>\n
facts.\n<\/p>\n
15.          The argument urged by the counsel for the respondents<\/p>\n
that the suit was actually dismissed by applying the provisions of<\/p>\n
Order 7 Rule 11 (d) CPC, is fallacious. If such was the case, then the<\/p>\n
trial court ought to have rejected the plaint and not dismissed the suit.<\/p>\n
The clear distinction between `rejection of a plaint’ and `dismissal of a<\/p>\n
suit’, cannot be lost sight of.\n<\/p>\n
16.          While passing the impugned judgment, the trial court lost<\/p>\n
sight of the fact that the effect of dismissal of a suit is entirely<\/p>\n
R.F.A. No.193\/2000                                        Page 10 of 15<\/span>
\n different and distinct from the effect of rejection of the plaint. In the<\/p>\n
case of Inspiration Clothes & U. Vs. Colby International Ltd. reported<\/p>\n
as 88 (2000) DLT 769, a Division Bench of this Court while<\/p>\n
examining the order of a Single Judge, dismissing the suit of the<\/p>\n
appellant therein, on an application preferred by the respondent under<\/p>\n
Order 7 Rule 11 CPC holding that the suit was not maintainable as the<\/p>\n
appellant did not have a cause of action, observed as below :<\/p>\n
           “Para 10: …Learned Single Judge fell in error in
\n           placing reliance upon the material supplied by the
\n           defendant, which alone is sufficient to set aside the
\n           impugned order. Learned Single Judge instead of
\n           proceeding to reject the plaint, dismissed the suit,
\n           which approach is also erroneous. The effect of
\n           dismissal of suit is altogether different and
\n           distinct from the effect of rejection of the plaint.
\n           In case plaint is rejected under Order 7 Rule 11,
\n           CPC, filing of a fresh plaint in respect of the
\n           same cause of action is specifically, permitted
\n           under Rule 13 of Order 7, CPC. Altogether
\n           different consequence follows in the event of
\n           dismissal of suit, which has the effect of
\n           precluding the plaintiff to file a fresh suit on the
\n           same cause of action. Rejection of plaint takes
\n           away the very basis of the suit rendering as if
\n           there was no suit at all or that no suit was
\n           instituted. Order of dismissal of suit while
\n           recognizing the existence of a suit indicates its
\n           termination. While deciding the application under
\n           Order 7 Rule 11, CPC, learned Single Judge ought not<\/p>\n
R.F.A. No.193\/2000                                        Page 11 of 15<\/span>
\n           and could not have dismissed the suit. Even in the
\n          decision of the Supreme Court in T. Arvindandam’s
\n          case (Supra) (AIR 1977 SC 2421) relied upon by
\n          learned Counsel for the appellant, it was held that if
\n          on a meaningful-not formal-reading of the plaint it is
\n          manifestly vexatious and merit-less, in the sense of
\n          not disclosing a clear right to sue, the Trial Court
\n          should exercise his power under Order 7 Rule 11, CPC
\n          taking care to see that the ground mentioned therein
\n          is fulfilled. In order to fulfill that ground bare
\n          allegation made in the plaint and documents filed
\n          therewith were required to be looked into, which in
\n          the instant case clearly disclosed at least a cause of
\n          action against the defendant that defendant was liable
\n          for damages for its acts of omission and commission.
\n          It would be an altogether different situation that the
\n          plaintiff might not ultimately succeed in obtaining a
\n          decree against the defendant or that Court might
\n          come to the conclusion that suit would not be
\n          maintainable against the defendant and that plaintiff
\n          had a cause of action only against defendant’s
\n          principal and its parent unit in Hong Kong, but such
\n          aspect could not have been gone into at this stage.
\n          Three paragraphs of the plaint quoted above in our
\n          view do clearly disclose cause of action for the plaintiff
\n          to claim damages.” (emphasis added)<\/p>\n<\/blockquote>\n
17.       If the trial court was convinced that the plaint read as a<\/p>\n
whole, did not disclose any cause of action and\/or was barred by any<\/p>\n
law, and was therefore liable to be rejected as vexatious or meritless,<\/p>\n
the court ought to have exercised its powers Order 7 Rule 11 CPC.<\/p>\n
Fact remains that a suit once instituted by a litigant, has to be<\/p>\n
disposed of strictly as per the procedure prescribed in the Code and<\/p>\n
R.F.A. No.193\/2000                                        Page 12 of 15<\/span>
\n not in a cursory or summary fashion. The plea of the respondents that<\/p>\n
the suit of the appellant was barred by any law, could be considered<\/p>\n
after having regard to the pleas taken in the plaint.   In the present<\/p>\n
case, the appellant having taken a categorical stand that the issue with<\/p>\n
regard to return of her stridhan remained alive despite the decree of<\/p>\n
dissolution of marriage dated 29.6.1995 of the US Court, the matter<\/p>\n
required to be put to trial.     The trial court was not justified in<\/p>\n
determining the said question at the admission stage itself, and<\/p>\n
dismissing the suit without affording an opportunity to the parties to<\/p>\n
complete the pleadings, file documents in support of their stand and<\/p>\n
without framing any issues.\n<\/p>\n
18.        If after framing of issues, including an issue with regard to<\/p>\n
the maintainability of the suit, the court was of the opinion that no<\/p>\n
evidence was required on certain issues, the said issues could have<\/p>\n
been treated as preliminary issues and decided. It is not as if the suit<\/p>\n
could not have been dismissed after the issues were framed, both on<\/p>\n
law and facts and certain issues were treated as preliminary issues. At<\/p>\n
that stage, the court would have had the benefit of looking carefully<\/p>\n
R.F.A. No.193\/2000                                       Page 13 of 15<\/span>
\n into the defence of the defendants as well, and could well have upheld<\/p>\n
their objections as to the maintainability of the suit.<\/p>\n
19.        For the aforesaid reasons, this Court is of the opinion that<\/p>\n
the dismissal of the suit, preferred by the appellant, at the very<\/p>\n
threshold, on the ground of `concealment of material facts’, without<\/p>\n
affording any opportunity to the parties to complete the pleadings, file<\/p>\n
documents and without framing any issues has caused grave injustice<\/p>\n
to the appellant. The appropriate course in such circumstances would<\/p>\n
have been to frame the issues and treat some of the issues as<\/p>\n
preliminary issues which could be decided even without evidence,<\/p>\n
instead of dismissing the suit in limine, without putting it to trial. If<\/p>\n
such preliminary issues, as framed by the trial court, are ultimately<\/p>\n
decided in favour of the respondents, the same would result in the<\/p>\n
dismissal of the suit, which has entirely different consequences under<\/p>\n
the provisions of Order 7 Rule 13 CPC, and would preclude the<\/p>\n
appellant from filing a fresh suit on the same cause of action.<\/p>\n
20.        In view of the foregoing discussion, the appeal is allowed<\/p>\n
and the impugned judgment dated 30.11.1999 is set aside.          The suit<\/p>\n
of the appellant is restored to the file of the trial court, for fresh<\/p>\n
adjudication and disposal in accordance with law. After the pleadings<\/p>\n
R.F.A. No.193\/2000                                        Page 14 of 15<\/span>
\n are completed between the parties and issues are framed, the trial<\/p>\n
court shall be at liberty to treat certain issues as preliminary issues<\/p>\n
and decide the same in accordance with law.\n<\/p>\n
21.        The trial court record be released forthwith. The parties are<\/p>\n
directed to appear before the District Judge for further proceedings on<\/p>\n
16th November, 2009, when the matter shall be directed to be placed<\/p>\n
before the appropriate court for further proceedings. Considering the<\/p>\n
fact that the suit is of the year 1999, the Trial Court is requested to try<\/p>\n
the same as expeditiously as possible.\n<\/p>\n
22.        Parties are left to bear their own costs.<\/p>\n
\n\n\n\n\n                                                         (HIMA KOHLI)\nOCTOBER     29, 2009                                       JUDGE\nsk\n\n\n\n\nR.F.A. No.193\/2000                                         Page 15 of 15<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Ms. Vandana Gyandhar vs Shri Pawan Kumar & Ors. on 29 October, 2009 Author: Hima Kohli * IN THE HIGH COURT OF DELHI AT NEW DELHI + R.F.A. No.193\/2000 Reserved on : 08.10.2009 Pronounced on : 29.10.2009 IN THE MATTER OF : MS. VANDANA GYANDHAR ….. Appellant Through: Mr. C.M. Khanna, Adv. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-156238","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nMs. Vandana Gyandhar vs Shri Pawan Kumar & Ors. on 29 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-vandana-gyandhar-vs-shri-pawan-kumar-ors-on-29-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ms. Vandana Gyandhar vs Shri Pawan Kumar & Ors. on 29 October, 2009 - 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