Abha Fartyal vs Satish Singh Fartyal

Sharad Kumar Sharma, J

Its a very peculiar case, where the Court has to rise above board on certain occasion to take an appropriate action against those litigants, who approached the Court not with clean hands and initiate cumulative proceedings by distorting facts. A very peculiar situation which has arisen in this case as against the grant of decree of divorce under Section 13 of the Hindu Marriage Act, 1955 by the learned trial Court in a Civil Suit No. 19 of 2016, Satish Singh Fartyal v. Abha Fartyal, which was decreed on 10.04.2017, consequent to which the marriage between the appellant and respondent dated 26.04.2013 was dissolved, the appellant herein has filed a regular Appeal being Civil Appeal No. 3 of 2017, Smt. Abha Fartyal v. Satish Singh Fartyal, before the Court of District Judge, Champawat as against the judgement and decree dated 10.04.2017. The said appeal was decided by the Court of District Judge, Champawat on 02.11.2017 with its consequential dismissal, thereby affirming the decree of divorce dated 10.04.2017 as rendered in Civil Suit No. 19 of 2016, Satish Singh Fartyal v. Abha Fartyal.

Consequent to decree of divorce dated 10.04.2017 and its subsequent affirmation by the First Appellate Court vide its judgement dated 02.11.2017, the plaintiff/respondent-husband had married with Renu on 27.01.2019. The said marriage was registered on 15.04.2019 before the Registrar Compulsory Registration of marriage. Before elucidating the facts, which has resulted into taking a stringent view by this Court with regards to the manner in which the learned counsel for the appellant has proceeded to file the present Second Appeal by concealment of material fact, which will definitely tantamount to be an abuse of process of law Courts. Before venturing further, the precise details as the manner in which the appellant has proceeded with the matter is required to be considered the details of the same are as under:-

(1) On 26.04.2013, the marriage between the appellant and the respondent was solemnized as per Hindu Rites and Rituals;

(2) On 10.11.2013, it's the wife case before the Civil Court that the husband has deserted her;

(3) Case No. 30 of 2014, Satish Singh Fartyal v. Abha Fartyal was instituted by the husband invoking Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights;

(4) On 21.05.2015, the Suit under Section 9 of the Hindu Marriage Act was decreed in favour of the husband;

(5) On 02.06.2015, a decree under Section 9 of the Hindu Marriage Act was rendered by the learned Family Court;

(6) On 07.06.2016, i.e. immediately after about one year from the date of decree under Section 9 of the Hindu Marriage Act, the husband filed a Suit being Suit No. 19 of 2016, Satish Singh Fartyal v. Abha Fartyal under Section 13 of the Hindu Marriage Act for dissolution of marriage;

(7) On 16.08.2016, the appellant herein i.e. the wife had filed paper No. 29C2 i.e. the written statement, denying the averments of the proceedings under Section 13 of the Hindu Marriage Act;

(8) On 18.10.2016, the evidence of the plaintiff-husband in the proceedings under Section 13 of the Hindu Marriage Act was closed. The appellant-wife appeared in the witness box as PW1 in the proceedings under Section 13 of the Hindu Marriage Act and has also filed paper No. 39 (kha)/1 as affidavit examination in chief;

(9) On 03.04.2017, the evidence of the defendant was closed;

(10) On 10.04.2017, the Suit No. 19 of 2016, Satish Singh Fartyal v. Abha Fartyal as preferred by the husband-respondent for dissolution of marriage dated 26.04.2013 was decreed.

(11) In 2017, Civil Appeal being Civil Appeal No. 3 of 2017 was filed by the defendant/appellant before the District Judge, Champawat, well within limitation, being aggrieved against the judgment and decree dated 10.04.2017, dissolving the marriage dated 26.04.2013.

(12) On 02.11.2017, the Civil Appeal No. 3 of 2017, as preferred by the appellant against the trial Court's judgement and decree dated 10.04.2017 was dismissed by District Judge, Champawat;

(13) On 01.01.2019 i.e. almost after about 14 months of the Appellate Court's judgement dated 02.11.2017, the defendant/appellant filed a First Appeal No. 10 of 2019, Smt. Abha Fartyal v. Satish Singh Fartyal before this High Court against the judgement and decree dated 10.04.2017, despite of the fact that the Civil Appeal which was preferred by the appellant before the District Judge, Champawat being Civil Appeal No. 3 of 2017 already stood dismissed on 02.11.2017, affirming the decree dated 10.04.2017. Hence, the present First Appeal before this Court against the decree dated 10.04.2017 would not be maintainable after dismissal of appeal by District Judge, Champawat.

(14) On 10.01.2019, the First Appeal No. 10 of 2019 was got dismissed as withdrawn by the appellant by the judgement passed by the coordinate Bench of this Court.

(15) On 17.01.2019, after the dismissal of the First Appeal as withdrawn on 10.01.2019, the appellant has applied for the certified copy of the judgement and decree dated 10.04.2017 and 02.11.2017, the certified copy of which was received by her on 17.01.2019 itself;

(16) On 29.01.2019, the appellant received the certified copy of the order of withdrawal of First Appeal No. 10 of 2019, which was dismissed on 10.01.2019;

(17) On 25.07.2019, the Second Appeal was filed with delay of about 539 days i.e. even much beyond the period of limitation i.e. after the dismissal of the First Appeal as withdrawn on 10.01.2019.

Since the two First Appeals have been filed against the same decree dated 10.04.2017 i.e. one before the District Judge, Champawat and another before this Court being Civil Appeal No. 3 of 2017, Abha Fartyal v. Satish Singh Fartyal and First Appeal No. 10 of 2019, Abha Fartyal v. Satish Singh Fartyal respectively, they are not maintainable in accordance with law. As there cannot be two First Appeals against same judgement and decree before two different Courts, i.e. one before District Judge, Champawat and second before this Court.

Concealing the aforesaid facts about the decision rendered in the Civil Appeal No. 3 of 2017, Smt. Abha Fartyal v. Satish Singh Fartyal on 02.11.2017 by the District Judge, Champawat, the appellant herein, through her counsel Mr. Suresh Chandra Bhatt filed a First Appeal being FA No. 10 of 2019, Smt. Abha Fartyal v. Satish Singh Fartyal on 09.01.2019, without disclosing the fact that the Civil Appeal, which the appellant had preferred before the Court of District Judge, Champawat being FA No. 3 of 2017, Abha Fartyal v. Satish Singh Fartyal already stood dismissed on 02.11.2017. Later on, what is reflected from the records of the First Appeal No. 10 of 2019, which was summoned from the section before this Court is that the First Appeal, which was preferred by the appellant herein was on 09.01.2019, questioning the judgement and decree dated 10.04.2017, after about more than one year 9 months i.e. approximately 639 days, later on, when she got it withdrawn on 10.01.2019.

It is after the withdrawal of the First Appeal, the appellant applied for the certified copy of the appellate Court's judgement on 17.01.2019, which was received by defendant/appellant, on same day from the Munsarian of District Judgeship of Champawat, and thereafter she had filed the present Second Appeal which has been preferred by the defendant/appellant only on 25.07.2019, yet again even after the expiry of period of limitation, even if computed from the date of receipt of the certified copy of judgement dated 02.11.2017.

The question, which emerges for consideration for taking an appropriate action is whether a litigant or the counsel, who is working on the advice of the client, could be permitted to abuse the process of Court by simultaneously resorting to the proceedings of preferring first appeal against the judgment and decree dated 10.04.2017, which already stood decided by the learned First Appellate Court on 02.11.2017, and thereafter, yet again, after the dismissal of the Civil Appeal 3 of 2017 on 02.11.2017, preferring yet again another First Appeal before this Court being FA No. 10 of 2019, Smt. Abha Fartyal v. Satish Singh Fartyal that too being filed the same in January 2019, and too after the decision of the Court of District Judge, Champawat in Civil Appeal No. 3 of 2017, Smt. Abha Fartyal v. Satish Singh Fartyal dated 02.11.2017 where the appeal of defendant/appellant was dismissed. The Second First Appeal before this Court after decision of Civil Appeal by District Judge, Champawat against the same decree of 10.04.2017, rendered in Suit No. 19 of 2016, Satish Singh Fartyal v. Abha Fartyal on 02.11.2017, would not be maintainable under any stretch of proposition of law.

Hence, it could be said that at the time when the First Appeal was filed before this Court i.e. on 09.01.2019, questioning the propriety of the judgement and decree dated 10.04.2017, as rendered in Civil Suit No. 19 of 2016, Satish Singh Fartyal v. Smt. Abha Fartyal, before preferring of the First Appeal before this Court, the First Appeal already preferred by her before the Court of District Judge, Champawat being Civil Appeal No. 3 of 2017 already stood dismissed on 02.11.2017, with its dismissal against decree dated 10.04.2017, and as a consequence thereto, no First Appeal again, questioning the same judgement and decree dated 10.04.2017, could have been maintainable before this Court and that too which has been filed much thereafter, after the decision dated 02.11.2017 i.e. almost after 539 days i.e. later on, the appellant herein, through her counsel got the First Appeal No. 10 of 2019, Abha Fartyal v. Satish Singh Fartyal, dismissed as withdrawn by the order of coordinate Bench of this Court on 10.01.2019 and later she has preferred a Second Appeal before this Court under the same counsel by filing it on 24.07.2019.

The matter was taken up yesterday. The appellant was directed to appear in person before this Court, for the reason that yesterday, the counsel for the appellant has expressed his ignorance with regards to the knowledge of filing of the First Appeal No. 3 of 2017, Smt. Abha Fartyal v. Satish Singh Fartyal before the Court of District Judge, Champawat and its decision as rendered on it on 02.11.2017 by the District Judge, Champawat at the time when he had filed the Second First Appeal No. 10 of 2019, Smt. Abha Fartyal v. Satish Singh Fartyal before this Court on 09.01.2019.

At least, the First Appeal No. 10 of 2019, Smt. Abha Fartyal v. Satish Singh Fartyal, which has been filed by the appellant through her counsel after the decision of the Civil Appeal preferred before the Court of District Judge, Champawat as decided on 02.11.2017 was absolutely not tenable and was an abuse of process of law Courts, based on concealment of fact, about the dismissal of Civil Appeal by the District Judge, Champawat on 02.11.2017, and that is why it was got dismissed as withdrawn on 10.01.2019 by the counsel for the defendant/appellant. Since in both the appeals i.e. First Appeal No. 10 of 2019, Smt. Abha Fartyal v. Satish Singh Fartyal and the present Second Appeal, i.e. Second Appeal No. 106 of 2019, Smt. Abha Fartyal v. Satish Singh Fartyal which had been filed by the appellant only on 25.07.2019 through the same counsel. This Court is not in agreement with the excuse, which has been extended by either the learned counsel for the appellant or by the appellant herself who is present in person, that both of them were not aware of filing of the Civil Appeal No. 3 of 2017, Smt. Abha Fartyal v. Satish Singh Fartya,l before the Court of District Judge, Champwat and decision rendered on it on 02.11.2017, at the time when yet again Second First Appeal i.e. First Appeal No. 10 of 2019, Smt. Abha Fartyal v. Satish Singh Fartyal was filed before this Court, that too after the decision being rendered by the Court of District Judge, Champawat in Civil Appeal No. 3 of 2017, Smt. Abha Fartyal v. Satish Singh Fartyal on 02.11.2017, because it is settled law that once the instructions are parted by the client to his counsel, a logical conclusion and inference, which would be drawn is that it was exclusively based on the instructions, which has been received by the counsel from his client, it would be deemed that a logical presumption goes that the counsel was made aware of the fact of filing the Civil Appeal No. 3 of 2017, Smt. Abha Fartyal v. Satish Singh Fartyal and the decision rendered on it on 02.11.2017. The Hon'ble Apex Court in its judgement as reported in AIR 1991 SC 1726, G. Narayanaswamy Reddy (dead) by L.Rs. and another v. Government of Karnataka and another has held as under:-

"2. The petitioners were the owners of certain lands which were acquired by the respondents under the provisions of Sections 17 and 19 of the Bangalore Development Act, 1976 (hereinafter referred to as "the Bangalore Act"). Under the provisions of Section 36 of the Bangalore Act, where the acquisitions, otherwise than by agreement, it will be regulated by the provisions , as far they are applicable, of the Land Acquisition Act, 1894 (hereinafter referred to as "the Land Acquisition Act"). Section 11- A of the Land Acquisition Act, which section was included in the said Act in 1984 as set out hereinafter, very briefly states, provides that the Collector must make his award within two years from the date of the publication of the declaration and that if no award is made within that period, the entire proceedings for acquisition of the land shall lapse. Under the Explanation to the first proviso to Section 11-A,"the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded". It was, inter alia contended by the petitioners that as the awards in these cases has not been made within two years of the notification making the declaration under Section 4 of the Land Acquisition Act, the entire acquisition proceedings had lapsed. That contention was repelled along with certain other contentions in the judgment of the High Court which is sought to be impugned before us. The relevant dates which have to be borne in mind in this connection, are as follows:

The notification making the declaration under Section 4 of the Land Acquisition Act in respect of the lands in question was made on September 20, 1977. On September 20, 1984 Section 11-A which introduced into the Land, Acquisition Act by the Land Acquisition (Amendment) Act, 1984, was brought into force. Under the first proviso to Section 11-A it was prescribed that where the said declaration (under Section 4 of the Land Acquisition Act) has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award must be made within a period of two years from such commencement. Thus, the award should have been made within two years from September 20, 1984. On September 11, 1985, the petitioners obtained an interim order from this Court directing status quo with regard to the possession of the lands in question in Special Leave Petition No. 294 of 1985 preferred against the order of the Karnataka High Court dated August 14, 1984, with which we are not directly concerned here. The said Special Leave Petition No.294 of 1985 was dismissed on April 29, 1987. On December 16-17, 1987, two writ petitions were field by the respective petitioners in the Karnataka High Court challenging the acquisition on the ground that the awards were not made within the stipulated time. In these two writ petitions, the Karnataka High Court granted interim stay of further proceedings in respect of the acquisition of the said lands. These petitions were dismissed by a learned Single Judge of that High Court on November 29, 1988. Appeals against the decision of a learned Single Judge were dismissed by the Karnataka High Court on October 6, 1989, by a Division Bench of that High Court. The petitioners preferred these Special Leave Petitions, namely S.L.P. Nos. 823 and 824 of 1990 against the decision of the Devision Bench of that High Court, and obtained an interim stay of dispossession therein. Whatever the ultimate effect of the stay orders, in view of the provisions of Section 11 -A of the Land Acquisition Act , to which we have already referred earlier, it is beyond dispute that the fact of the stay orders was highly material in the determination of these Special Leave Petitions. Curiously enough, there is no reference in the Special Leave Petitions to any to the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the Special Leave Petitions are liable to be rejected. It is well-settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the Special Leave Petitions.

Hence, under these circumstances, the plea of ignorance either by the defendant/appellant to the effect that she was also not aware about filing of the Appeal No. 3 of 2017, Smt. Abha Fartyal v. Satish Singh Fartyal or by her counsel regarding decision dated 02.11.2017 in Civil Appeal No. 3 of 2017 is not acceptable by this Court for the reason being that a presumption goes that when the appellant has filed an appeal before the Courts of law, it was under her signature and under her affidavit, which was filed before the Courts below, as well as before this Court, hence she cannot not plead the theory of ignorance by filing the First Appeal before the District Judge and thereafter, before this Court simultaneously against the same decreed i.e. on 02.11.2017 and that too after the decision of the Civil Appeal filed before the Court of District Judge, Champawat on 02.11.2017. In such a circumstance, this Court is pained to impose a cost on the defenat/appellant, as well as on the counsel to the tune of Rs. 50,000/- (Rupees Fifty Thousand only) each, to be paid in the High Court Advocates' Welfare Fund within a period of 3 weeks from the date of receipt of certified copy of this order.

The Second Appeal is dismissed accordingly.