Vipin Jain vs Nancy

This petition under Article 227 of the Constitution of India has been filed against the order dated 9/5/2015 passed by District Judge, Guna in case No.36/2014 (HM), by which the application filed by the petitioner for grant of opportunity to cross examine the respondent has been rejected.

The necessary facts for disposal of the present petition in short are that the petitioner is facing a trial under Section 13 of the Hindu Marriage Act for grant of divorce. During the course of arguments, it was also accepted by the petitioner himself that he too had filed an application under Section 9 of the Hindu Marriage Act, but the same has been rejected. Against which, first appeal is pending before this Court. It is further submitted that the petitioner was being tried for an offence under Section 498-A of IPC and by judgment dated 14/5/2019 passed by the JMFC, Guna in RCT No.1278/2013, he has been acquitted.

It appears that earlier the petitioner was granted various opportunities to lead evidence and since he failed to do so, therefore, the trial court by order dated 9/5/2019 closed the right of the petitioner to lead evidence. The said order was challenged by the petitioner by filing a petition under Article 227 of the Constitution of India, which was registered as MP No.2756/2019 and the said petition was dismissed by order dated 27/5/2019. It appears that prior to the dismissal of MP No.2756/2019 the petitioner was already acquitted by the Court of JMFC, Guna. The petitioner on 25/6/2019 filed an application under Order VI Rule 17 read with Section 151 of CPC seeking permission to amend his written statement by incorporating the fact of acquittal of the petitioner. It appears that the said application was allowed by the trial court and the amendment sought in the written statement was allowed. It appears that the petitioner filed an application under Order XVIII Rule 17 CPC seeking permission to cross examine the respondent in the light of the acquittal of the petitioner under Section 498-A of IPC and the said application was allowed by order dated 7/9/2019 and the respondent was directed to appear before the Court for cross examination on 23/9/2019. However, from order dated 7/9/2019 it does not appear that the petitioner ever brought the fact of dismissal of MP No.2756/2019 to the notice of the trial court as there is no reference of order dated 27/5/2019 passed by this Court in MP No.2756/2019. It appears that the respondent was cross examined by the petitioner.

Thereafter, the petitioner filed an application under Section 151 of CPC seeking permission of the trial court to lead evidence in the light of the amendment allowed by the trial court. By the impugned order dated 11/10/2019, the application filed by the petitioner under Section 151 of CPC has been rejected on the ground that merely because the petitioner was permitted to amend his written statement would not entitle him to lead evidence in rebuttal.

Challenging the order passed by the court below, it is submitted by the petitioner that although by order dated 9/5/2019 the right of the petitioner to lead evidence was closed, but since his written statement was permitted to be amended, therefore a fresh right has been created in favour of the petitioner.

Heard the petitioner.

From the order dated 9/5/2019 passed by the Family Court, Guna, it is clear that sufficient time was given to the petitioner to lead evidence and when in spite of the last opportunity given by the trial court, no evidence was led, the trial court accordingly closed his right. The said order was challenged before this Court by filing MP No.2756/2019, which was dismissed by this Court by order dated 27/5/2019. It appears that the fact of confirmation of order dated 9/5/2019 by this Court by dismissing MP No.2756/2019 was suppressed, as the said fact is not mentioned in the application filed under Section 151 of CPC dated 23/9/2019. Even it appears that the fact of dismissal of the petition was not brought to the notice of the trial court, therefore, there is no reference of the order dated 27/5/2019 passed by this Court in MP No.2756/2019. Thus, it appears that by suppressing the material facts, the petitioner has tried to frustrate the order dated 9/5/2019 passed by the trial court as well as the order dated 27/5/2019 passed by this Court in MP No.2756/2019. Once the right of the petitioner to lead evidence has already been closed by the trial court by order dated 9/5/2019 and as the said order has been affirmed by this Court in MP No.2756/2019, this Court is of the considered opinion that merely because the petitioner was acquitted in a criminal case under Section 498-A of IPC and the amendment to bring the said document on record was also allowed, this Court is of the considered opinion that no case is made out for implied review of order dated 9/5/2019 passed by the trial court as well as order dated 27/5/2019 passed by this Court in MP No.2756/2019.

So far as the acquittal of the petitioner is concerned, the said fact has already been brought on record and the respondent has already been cross examined. Under these circumstances, this Court is of the considered opinion that not only the petitioner had tried to mislead the trial court by suppressing the material fact, but the petitioner has also failed to make out any case for grant of opportunity to lead evidence.

Accordingly, the petition fails and is hereby dismissed.