First Appeal No.271 of 2006

23rd October, 2013

Petitioner Counsel: Mr. J.A. LOBO
Respondent Counsel: Mr. P. LOTLIKAR

Cases Cited:
Rameshwar & Ors. Vs. Jot Ram & Ors., AIR 1976 S.C. 49 [Para 12]

JUDGMENT

F. M. REIS, J. :- Heard Shri Lobo, learned Counsel appearing for the Appellant and Shri Lotlikar, learned Counsel appearing for the Respondent.

2. The above Appeal challenges an Order and Decree dated 14.12.2004, whereby Matrimonial Petition filed by the Appellants came to be dismissed as no cause of action survived for the Appellants.

3. Briefly, the facts of the case as stated by the Appellant is that she got married to the Respondent on 05.01.1994 and after her marriage was registered at the Civil Registration Office at Ilhas, Panaji, the Respondent forced the Appellant to leave her job stating that he was worth over crores of Rupees. The religious marriage took place on 14.05.1994 at the Church of Immaculate Conception at Panaji and after the marriage, both started residing at the ancestral house of the Respondent at Grant Road at Mumbai. Thereafter, they shifted to their own flat at Mahim in Mumbai. It is the contention of the Appellant that the Respondent started harassing the Appellant and abused the Appellant by using filthy words. A child was born out of the marriage on 14.12.1995 and thereafter another child came to be born on 09.09.1996. It is further contended by the Appellant that there were some incidents which took place when they had gone on a holiday at Lonavla in the year 1997 wherein the Respondent even threatened to commit suicide if the Appellant did not leave and go back to Goa. It is further contended by the Appellant that she thereafter came back to Goa as she could not take the pressure of the Respondent's behaviour. It is further her case that the Respondent tendered an apology and subsequently followed her to Goa and they started residing at Alto Porvorim in Goa. The Appellant has also pleaded different incidents in the plaint which, according to her, was a harassment and/or cruelty and ill treatment by the Respondent. The said incidents narrated by the Appellant are not material for the disposal of the Appeal at this stage. Nevertheless, the appellant filed the Petition for divorce and for other reliefs as stated in the Matrimonial Petition no. 47/2000. There were different attempts made by the Court to try and amicably sort out the matter considering that it was a matrimonial dispute. It is further contended by the Appellant that she made genuine attempts to reconcile which did not bear fruit with the Respondent.

4. The Respondent also filed his written statements disputing all the contentions raised by the Appellant in the said Petition. It is the contention of the Respondent that the suit is misconceived and that the Appellant had no cause of action to file the said proceedings. It is further his case that even assuming all the contentions in the plaint are true, no cause of action survives in her favour as they have been residing together subsequent to the institution of the suit along with their children happily. All the allegations made in the plaint were disputed by the Respondent in the written statements. For the reasons stated in the written statement dated 16.10.2001, it was submitted by the Respondent that the suit is frivolous, malafide, baseless and deserves to be dismissed. Thereafter, the plaint came to be amended and some additional pleadings were incorporated. It was, inter alia, sought to be averred by the Appellant that the Court attempted to make efforts to bring reconciliation between the Appellant and the Respondent and ever since then, the Respondent had desisted from any direct threat or physical assault. Rest of his behaviour showed all the signs that the Respondent resumed all his violent ways. During the said process, it is her case that she conceived another child and that thereafter, according to the Appellant, the Respondent started showing his true colours and declined to give any financial assistance and created some incidences which prevented the Appellant from going in their car. It is further her case that the Respondent continues the ill treatment to the Appellant.

5. An additional written statement also came to be filed by the Respondent disputing the said allegations made by the Appellant. It is his contention that he had reconciled with the Appellant and agreed to live together. The Respondent also disputed that he had given any threats or physical assaults to the Appellant. All the allegations made in the amended plaint were also seriously disputed by the Respondent. The records reveal that the case had reached the stage of Appellant's evidence where the Respondent filed an application on 03.07.2004, praying, inter alia, for a dismissal of the suit on the ground that the Appellant and the Respondent are living together.

6. The Appellant opposed the said application by filing reply on 31.07.2004. By the impugned Order dated 14.12.2004, the learned Judge dismissed the Petition holding, inter alia, that no cause of action survives. Being aggrieved by the said Judgment, the Appellant has preferred the said Appeal.

7. Shri J. A. Lobo, learned Counsel appearing for the Appellant, has pointed out that the extraordinary exercise by the learned Judge in dismissing the suit is something which is not even envisaged in the Civil Procedure Code. Learned Counsel further pointed out that the learned Judge has erroneously come to the conclusion that as the third child was born during the pendency of the Petition it would by itself suggest that the cause of action did not survive. Learned Counsel further pointed out that the child was conceived during the process when an attempt for reconciliation was in the offing and these facts were brought on record by the subsequent amendment by the Appellant and, as such, the learned Judge was not justified to pass the impugned Order. Learned Counsel further pointed out that the cause of action in filing the Matrimonial Petition was on account of the cruelty inflicted by the Respondent and such cause of action is still subsisting, as according to the Appellant, the conduct of the Respondent continues in harassing the Appellant. Learned Counsel further pointed out that merely because a child was conceived in specific circumstances, does not by itself divest the right of the Appellant to proceed with the Petition on the original cause of action. The learned Counsel has further taken us through the plaint as well as the written statements and pointed out that the learned Judge was not at all justified to pass the impugned Order and dismissed the suit as, according to the Appellant, she is entitled to seek the reliefs in the Matrimonial Petition. Learned Counsel has taken us through the impugned Order and pointed out that the learned Judge has erroneously passed the impugned Order which deserves to be quashed and set aside.

8. On the other hand, Shri Lotlikar, learned Counsel appearing for the Respondent, points out that the parties have reconciled themselves and, as such, the question of proceeding with the suit does not arise. Learned Counsel further pointed out that it is not in dispute that the third child is born and, as such, the original cause of action does not subsist as there was no reason to proceed with the Petition for divorce and, consequently, the learned Judge was justified to pass the impugned Order. Learned Counsel further pointed out that the Appellant and the Respondent are residing in the same house with their children and, as such, it is inconceivable that the cause of action to file the divorce Petition on account of cruelty subsists. Learned Counsel has taken us through the impugned Judgment and pointed out that the observations made by the learned Judge to the effect that the original cause of action does not survive is based on the material on record and, as such, there is no reason for interference in the impugned Order.

9. After hearing the matter and considering the nature of dispute, we tried to interview the parties to ascertain whether the matter could be reconciled. But, however, both the parties appear along with their respective Counsel and considering the contentions made by both of them, it appears that there was no scope for reconciliation between the parties. Hence, we proceed to dispose of the above Appeal.

10. On the basis of the rival contentions and the material on record, the following point for determination arises in the present Appeal :

POINT FOR DETERMINATION

(I) Whether the learned Judge was justified to dismiss the suit on the ground that no cause of action survives?

11. On going through the pleadings of the parties as specified herein above, we find that the suit for divorce came to be filed by the Appellant on the ground that the Respondent had committed acts of cruelty and ill treatment which, according to the Appellant entitled her for divorce. Specific particulars have been enumerated by the Appellant in the Petition. No doubt, the allegations made therein have been disputed by the Respondent in the written statement and, further counter allegations are also made by the Respondent against the Appellant. Nevertheless, during the pendency of the suit, the circumstances in which the third child was conceived were also brought on record by an amendment to the Petition. The allegations made therein have also been disputed by the Respondent by filing the additional written statement. On perusing the impugned Order, the learned Judge was influenced by the fact that the third child was born during the pendency of the proceedings which, according to the learned Judge, altered the original situation and, as such, the cause of action did not survive. When the Appellant has sought to explain the circumstances in which the child was conceived, though such circumstances have been disputed by the Respondent, nevertheless, in the facts and circumstances of the case, as the Appellant wanted to proceed with the suit, it was not open to the learned Judge to dismiss the suit as the original cause of action does not survive. The learned Judge would have to examine whether the Appellant is in a position to establish the allegations made in the Matrimonial Petition and, thereafter, considering the subsequent events, decide whether the Appellant is entitled for the reliefs sought in the Petition. The fact that the third child was conceived which otherwise is sought to be explained by the Appellant and disputed by the Respondent in the additional written statement, is a matter which would have to be considered on its own merits after evidence is recorded of both the parties. The rival contentions of the parties would have to be adjudicated after the evidence is adduced by the Appellant and the Respondent as per their respective stand. As such, the learned Judge was not justified to pass the impugned Order and come to the conclusion that the original cause of action did not survive for the reasons stated in the impugned Judgment which are otherwise untenable at this stage of the proceedings. The learned Judge would have to proceed to decide the Matrimonial Petition on its own merits and thereafter take a decision whether the Appellant is entitled for the reliefs sought in the Petition, after hearing the parties in accordance with law.

12. The Apex Court in a Judgment reported in AIR 1976 S.C. 49 in the case of Rameshwar & Ors. vs. Jot Ram & Ors. has observed at Paras 8 and 9 thus :

"8. In P. Venkateswarlu v. Motor & General Traders this Court dealt with the adjectival activism relating to post-institution circumstances. Two propositions were laid down. Firstly, it was held that [SCC p. 772, para 4]

"it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding."

This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right because, as explained earlier, had the court found his facts to be true the day he sued he would have got his decree. The Court's procedural delays cannot deprive him of legal justice or right crystallised in the initial cause of action. This position finds support in Bhajan Lal v. State of Punjab.

9. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson4 illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs - cannot deny rights - to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact Venkateswarlu, read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See Chokalingam Chetty). The law stated in Ramji Lal v. State of Punjab is sound:

"Courts, do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment (see Steward v. North Metropolitan Tramways Company) and a fresh suit by him would be so barred by limitation."

One may as well add that while taking cautious judicial cognisance of "post-natal" events, even for the limited and exceptional purposes explained earlier, no court will countenance a party altering, by his own manipulation, a change in situation and plead for relief on the altered basis."

13. Taking note of the ratio laid down by the Apex Court, the learned Judge would have to decide the matter on the basis of the pleadings of the parties and ascertain whether the Appellant is entitled for the reliefs, whilst also noting the subsequent events. It is also pertinent to note that the Appellant desires to proceed with the Petition claiming that the cause of action still survives and tried to explain the circumstances in which the subsequent events have taken place. In such circumstances, the learned Judge was not justified to dismiss the Matrimonial Petition filed by the Appellant.

14. In view of the above, we find that the impugned Order passed by the learned Judge is unsustainable and deserves to be quashed and set aside. The point for determination is answered accordingly.

15. In view of the above, I pass the following :

ORDER

(i) The impugned Order and Decree dated 14.12.2004 is quashed and set aside.

(ii) Matrimonial Petition no. 47 of 2000 is restored to the file of the learned Civil Judge, Senior Division, at Panaji.

(iii) The learned Civil Judge is directed to proceed with the suit in the light of the observations made herein above in accordance with law.

(iv) The parties are directed to appear before the learned Judge on on 09.12.2013 at 10.00 a.m.

(v) Appeal stands disposed of accordingly.

Appeal allowed.