Sec.151 of C.P.C. - Police aid - interim injunction - no appeal - police aid as the defendant obstructing while constructing a building - defendant filed a suit for partition - when there is no right/claim by defendant - police aid can be granted - in other matters like this case , no police aid should be given unless the rights are crystallized - Lower court committed wrong = Mettu Malyadri ...Petitioner Mettu Sivaiah..Respondent = published in judis.nic.in/judis_andhra/filename=10624

Sec.151 of C.P.C. - Police aid - interim injunction - no appeal - police aid as the defendant obstructing while constructing a building  - defendant filed a suit for partition - when there is no right/claim by defendant - police aid can be granted - in other matters like this case , no police aid should be given unless the rights are crystallized - Lower court committed wrong = 

Thus the main purpose of granting injunction is to see that a party who is in
peaceful possession is not dispossessed and to see that the property in dispute
is not being wasted, damaged or alienated by any party to the suit pending
disposal of the suit.  
As far as granting of police aid is concerned there
cannot be any dispute with regard to principles laid down in the decisions cited
by either side.  However, the Courts have to see the facts and circumstances of
each case.  
Where it appears that a person having no right and title wrongfully interferes with the possession of any other person who is lawful owner of the property then the Court is always justified in granting police aid to protect the possession of such party, but where it appears to the Court that a party may
have a right by birth for example a party claiming right as a coparcener in a property or a share in the property then the Courts must be slow in granting police aid in such a situation.  As far as brothers and any other person who
have share in the property are concerned every shareholder need not be in actual
possession of the property.  
Merely because a person is not in actual possession
of the property or may be residing at some other place, that does not mean that,
he has no right in the property, but however where a party has been in
continuous possession of the property for a considerable period and claims right
over such property, the Court is justified in protecting his possession
temporarily till the rights of the parties have been crystallized.   
But this
does not mean that a party can alter the physical features of any property or
make constructions in a disputed property particularly where other side party
claims a share in the property and particularly when a partition suit is pending
between the parties or between the persons claiming under the parties to the
suit.
In this case, admittedly the son of the petitioner filed a suit for partition
that means the son of the petitioner has been claiming share in the property.
It may be a fact that though the respondent suffered an order of injunction he
has not carried the matter in appeal and the injunction order granted against
him is still in force.  The fact remains that the injunction order passed
against the petitioner is in force.  
The petitioner cannot interfere with the
possession of the respondent, but at the same time the fact remains that the son
of the petitioner filed a suit for partition and also claimed that the physical
features of the plaint schedule property should not be changed during the
pendency of the said suit and it appears that the matter is pending before the
Senior Civil Judge Court, Kavali.  
In the circumstances, it appears that the
petitioner though claimed that the respondent interfered when he tried to make a
construction on 22.12.2012 and the said fact is not denied by the petitioner,
but having regard to the facts and circumstances of the case it appears that the
lower Court is not justified in granting police aid.  The lower Court ignored
the relationship between the parties and rival claims of the parties and the
fact that the son of the petitioner filed a suit for partition before the Senior
Civil Judge Court, KLavali and the same is pending.  
Normally in civil matters
unless and until the rights have been crystallized and it is clear to the mind
of the Court that a party without any semblance of right is violating the orders
of the Court the interference of the police should not be called for.
Subject to the observations made supra, the revision petition is allowed and the
impugned order is set aside.  No costs.
As a sequel, the miscellaneous petitions, if any, pending in this revision
petition shall stand closed.

THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR            

CRP No.2125 of 2013

07-11-2013

Mettu Malyadri ...Petitioner

Mettu Sivaiah..Respondent

Counsel for the Petitioner:Sri M. Venkata Narayana

Counsel for the Respondent:Sri P. Rajasekhar

<Gist :

>Head Note:

?Cases Referred:
1. (2012) 4 SCC 307
2. 2010(6) ALT 92(DB)
3. 2013(1) ALT 532

THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR        

Civil Revision Petition No. 2125 of 2013

Order:

         This CRP is directed against the order and decretal order dated
15.03.2012 passed in I.A. No.24 of 2013 in O.S. No.36 of 2012 by the Principal
Junior Civil Judge, Kavali.
        The respondent herein filed the suit for injunction and I.A. No.103 of
2012 for grant of ad interim injunction.  The lower Court granted injunction
order dated 29.10.2012.  Then the respondent herein filed I.A. No.24 of 2013
seeking police aid.  By an order dated 15.03.2013 the lower Court allowed the
said petition and ordered police aid to the respondent.  Aggrieved by the same,
the petitioner filed this petition.
The main contention of Sri M. Venkata Narayana, learned counsel for the
petitioner, is that the lower Court ought to have considered that no application
was filed under Order 39 Rule 2(a) CPC and without resorting to the procedure
prescribed under Order 39 Rule 2(a) CPC and without considering the facts and
circumstances of the case the lower Court straightaway granted police aid.  He
has relied on a decision reported in Kanwar Singh Saini v. High Court of Delhi1.
Sri P. Rajasekhar, learned counsel for the respondent, has referred to the
affidavit filed by the respondent herein in support of the application filed
seeking police protection and the counter filed by the petitioner herein in the
said application and submits that the Court below, having regard to the facts
and circumstances of the case, granted police aid.  It is also submitted that a
specific averment of the respondent that the petitioner obstructed while he was
attempted to make construction on 22.12.2012 is not denied.  He has also relied
on the judgments of this Court reported in Polavarapu Nagamani v. Parchuri
Koteshwara Rao2, and B. Chandra Sekhar Reddy v. K. Naga Raju Yadav3 in support  
of his contention that where situation warrants the Courts have been granting
police aid.
It is not in dispute that the petitioner and the respondent are brothers.  The
specific case of the respondent is that his father late Malakondaiah sold 20
Ankanams of land out of 30 Ankanams to him under a  registered sale deed dated
16.05.1987 and subsequently he executed an unregistered will deed dated
15.11.1988 in favour of his mother who subsequently executed a settlement deed
in favour of the respondent.  The case of the petitioner is that 30 Ankanams is
joint family property in which he is having half share and after the death of
his father a division was made in which he got half share.  It is also his case
that subsequently his son filed a suit for partition in O.S. No.45 of 2012
claiming a share in the joint family property against himself, his mother and
the respondent herein.
The rival claims and the relationship of the parties have to be kept in mind.
One of the points raised by Sri M. Venkata Narayana is that unless late
Malakondaiah had an absolute right to sell the land in favour of his younger
son, the respondent herein, the sale deed itself would become void.  It is also
his submission that there is nothing on record to say that the disputed property
is self acquired property of late Malakondaiah.  Anyhow the question whether the
petitioner herein has a share in the disputed property or not or whether the
sale deed executed by Malakondaiah and subsequent Will Deed executed by him in  
favour of his wife are valid or not have to be decided by the trial Court after
full fledged trial and this Court cannot express any opinion on the said issues
at this stage.
However, the fact remains that the petitioner and the respondent are real
brothers and the son of the petitioner filed a suit for partition in O.S. No.45
of 2012 and the same is pending.  It also appears that the son of the petitioner
sought an interim direction not to change the physical features of the petition
schedule property during the pendency of O.S. No.45 of 2012.   The main purpose
of granting any injunction under Order 39 Rule 1 CPC is to protect the property
and to see that the property is not wasted nor damaged.
Order XXXIX Rule 1 CPC is as follows.
1. Cases in which temporary injunction may be granted.- Where in any suit it is
proved by affidavit or otherwise-
a) that any property in dispute in a suit is in danger of being wasted, damaged
or alienated by any party to the suit, or wrongfully sold in execution of a
decree, or
b) that the defendant threatens, or intends, to remove or dispose of his
property with a view to defrauding his creditors,
c) that the defendant threatens to dispossess, the plaintiff or otherwise cause
injury to the plaintiff in relation to any property in dispute in the suit.
        the Court may by order grant a temporary injunction to restrain such act,
or make such other order for the purpose of staying and preventing the wasting,
damaging, alienation, sale, removal or disposition of the property or
dispossession of the plaintiff, or otherwise causing injury to the plaintiff in
relation to any property in dispute in the suit as the Court thinks fit, until
the disposal of the suit or until further orders."

Rule 2 of Order XXXIX deals with a situation where there is continuance of
breach of contract or other injury of any kind and to restrain the defendant
from committing a breach of contract or other injury of any kind.
Order XXXIX Rule 2A (1) and (2) deals with the consequence of disobedience or
breach of injunction which is as follows.
2A. Consequence of disobedience or breach of injunction.-(1) In the case of
disobedience of any injunction granted or other order made under rule 1 or rule
2 or breach of any of the terms on which the injunction was granted or the order
made, the Court granting the injunction or making the order, or any Court to
which the suit or proceeding is transferred, may order the property of the
person guilty of such disobedience or breach to be attached, and may also order
such person to be detained in the civil prison for a term not exceeding three
months, unless in the meantime the court directs his release.
(2) No attachment made under this rule shall remain in force for more than one
year, at the end of which time, if the disobedience or breach continues, the
property attached may be sold and out of the proceeds, the Court may award such
compensation as it thinks fit to the injured party and shall pay the balance, if
any, to the party entitled thereto."

Thus the main purpose of granting injunction is to see that a party who is in
peaceful possession is not dispossessed and to see that the property in dispute
is not being wasted, damaged or alienated by any party to the suit pending
disposal of the suit.  
As far as granting of police aid is concerned there
cannot be any dispute with regard to principles laid down in the decisions cited
by either side.  However, the Courts have to see the facts and circumstances of
each case.  
Where it appears that a person having no right and title wrongfully interferes with the possession of any other person who is lawful owner of the property then the Court is always justified in granting police aid to protect the possession of such party, but where it appears to the Court that a party may
have a right by birth for example a party claiming right as a coparcener in a property or a share in the property then the Courts must be slow in granting police aid in such a situation.  As far as brothers and any other person who
have share in the property are concerned every shareholder need not be in actual
possession of the property.  
Merely because a person is not in actual possession
of the property or may be residing at some other place, that does not mean that,
he has no right in the property, but however where a party has been in
continuous possession of the property for a considerable period and claims right
over such property, the Court is justified in protecting his possession
temporarily till the rights of the parties have been crystallized.  
But this
does not mean that a party can alter the physical features of any property or
make constructions in a disputed property particularly where other side party
claims a share in the property and particularly when a partition suit is pending
between the parties or between the persons claiming under the parties to the
suit.
In this case, admittedly the son of the petitioner filed a suit for partition
that means the son of the petitioner has been claiming share in the property.
It may be a fact that though the respondent suffered an order of injunction he
has not carried the matter in appeal and the injunction order granted against
him is still in force.  The fact remains that the injunction order passed
against the petitioner is in force.  
The petitioner cannot interfere with the
possession of the respondent, but at the same time the fact remains that the son
of the petitioner filed a suit for partition and also claimed that the physical
features of the plaint schedule property should not be changed during the
pendency of the said suit and it appears that the matter is pending before the
Senior Civil Judge Court, Kavali.
In the circumstances, it appears that the
petitioner though claimed that the respondent interfered when he tried to make a
construction on 22.12.2012 and the said fact is not denied by the petitioner,
but having regard to the facts and circumstances of the case it appears that the
lower Court is not justified in granting police aid.  The lower Court ignored
the relationship between the parties and rival claims of the parties and the
fact that the son of the petitioner filed a suit for partition before the Senior
Civil Judge Court, KLavali and the same is pending.
Normally in civil matters
unless and until the rights have been crystallized and it is clear to the mind
of the Court that a party without any semblance of right is violating the orders
of the Court the interference of the police should not be called for.
Subject to the observations made supra, the revision petition is allowed and the
impugned order is set aside.  No costs.
As a sequel, the miscellaneous petitions, if any, pending in this revision
petition shall stand closed.
___________________  
B. CHANDRA KUMAR, J.    
Date: 07.11.2013

Sec. 45 of Evidence Act - Review of it's own orders -'error apparent on the face of the record' and an 'erroneous decision' - Bankers book Evidence Act - presumption of Bank records valid - Documents called for sending Expert opinion as contemporary documents along with disputed document - lower court allowed - but the high court dismissed as it's genuineness was questioned by defendant against the Bankers Book Evidence Act - High court allowed the revision - the same is reviewed and order of High court set aside and Lower court order was confirmed = Anapalli Bhaskar and others.... Petitioners/Respondents Gudi Venkateswarlu and others.... Respondents/Revision Petitioners= published in judis.nic.in/judis_andhra/filename=10317

Sec. 45 of Evidence Act - Review of it's own orders -'error apparent on the face of the
record' and an 'erroneous decision' - Bankers book Evidence Act - presumption of Bank records valid - Documents called for sending Expert opinion as contemporary documents along with disputed document - lower court allowed - but the high court dismissed as it's genuineness was questioned by defendant against the Bankers Book Evidence Act - High court allowed the revision - the same is reviewed and order of High court set aside and Lower court order was confirmed =
 The plea of the defendants was that they disputed the thumb impressions
alleged to have been affixed by Anapalli Vandanam and Rondla Ademma in the bank  
documents, Exs.A.11 and 12, and that the same could not therefore be the basis
for comparison and verification of the thumb impressions in the disputed sale
deeds. 
Accepting this contention, the learned Judge opined that merely because
Exs.A.11 and 12 were bank documents it would not mean that Anapalli Vandanam and    
Rondla Ademma executed those documents in connection with bank transactions. 
The    
learned Judge concluded that unless there was certainty or there was no
ambiguity, no useful purpose would be served by sending Exs.A.11 and 12 along 
with the disputed sale deeds to an expert for comparison and report. 
The learned
judge observed that instead of proving these thumb impressions it would be
proper to establish the thumb impressions in the disputed sale deeds by
examining the concerned attestors, scribe or any other witness/witnesses. 
The
learned Judge held that the trial Court allowed the I.A. without basis and on
unsustainable surmises. Holding so, the learned Judge allowed the C.R.P. and set
aside the order passed by the trial Court. Hence, this review petition.=
The Supreme Court observed that a judgment may be open to    
review, inter alia, if there is an error apparent on the face of the record;
such an error being self-evident and not requiring a process of reasoning to
detect it. The Supreme Court pointed out that review jurisdiction would not be
applicable to an 'erroneous decision' which needed rehearing and correction and
cautioned that a review petition could not be allowed to be an appeal in
disguise.
        Keeping a clear distinction between an 'error apparent on the face of the
record' and an 'erroneous decision' would thus be essential while exercising
review jurisdiction.    
        The learned Judge, while allowing the C.R.P., did not consider the import
and impact of the presumption in law which attached to the bank documents,
Exs.A.11 and 12, with which the thumb impressions in the disputed documents were  
sought to be compared. 
Consequently, it was not a case where the request for
examination by an expert could be rejected at the threshold on the ground that
the opposite party disputed the genuineness of the thumb impressions in the bank
documents. 
No doubt, the presumption which attaches to these documents is not  
absolute and it would be open to the opposite party to dislodge such presumption
by adducing evidence to the contrary. 
However, such a party cannot shut out
examination of these documents by an expert by a bald assertion that it disputed
the genuineness thereof. This Court therefore finds that the order under review
reflected an error apparent.
        The order passed by the Court below was therefore just and valid in law
and did not brook interference. The order dated 28.01.2013 holding to the
contrary and allowing the C.R.P. is accordingly set aside.

THE HON'BLE SRI JUSTICE SANJAY KUMAR      

REVIEW CRP MP NO.1362 OF 2013 AND BATCH        


DATED 16TH SEPTEMBER, 2013    

Anapalli Bhaskar and others.... Petitioners/Respondents

Gudi Venkateswarlu and others.... Respondents/Revision Petitioners


Counsel for petitioners:  Sri Srinivas Karra

Counsel for respondents:  Sri T.C.Krishnan

<GIST:

>HEAD NOTE:  


THE HON'BLE SRI JUSTICE SANJAY KUMAR      

REVIEW CRP MP NO.1362 OF 2013    
IN
C.R.P.NO.6291 OF 2012

O R D E R


C.R.P.No.6291 of 2012 was allowed by a learned Judge of this Court, since
retired.  The respondents in the CRP seek review of the said order.
         The petitioners in the C.R.P. are the defendants in O.S.No.744 of 2007 on
the file of the learned I Additional Senior Civil Judge, Nellore.
The
respondents in the CRP, the review petitioners, are the plaintiffs therein.
This
suit was instituted seeking cancellation of three sale deeds dated 13.08.1990
said to have been executed by late Anapalli Vandanam and late Rondla Ademma. 
The   
case of the plaintiffs is that they are the legal heirs of Anapalli Vandanam and
Rondla Ademma and that the defendants had forged their thumb impressions in the 
three sale deeds and got them registered.
        After closure of their evidence, the plaintiffs filed I.A.No.718 of 2012
in the suit to reopen the case. This I.A. was dismissed by the trial Court and
C.R.P.No.4911 of 2012 was filed before this Court assailing the same. By order
dated 01.10.2012, this Court held that a reasonable opportunity should be
granted to the plaintiffs to let in their whole evidence and the trial Court was
directed to accord them an opportunity to do so.
        Thereupon, having got two bank documents marked in evidence as Exs.A.11   
and 12 through the bank manager concerned, the plaintiffs filed I.A.No.1184 of
2012 under Section 45 of the Indian Evidence Act, 1872 (for brevity, 'the Act of
1872') read with Section 151 C.P.C to send the disputed sale deeds for expert
opinion as to the thumb impressions therein in comparison with those affixed by
Anapalli Vandanam and Rondla Ademma in the bank documents, Exs.A.11 and 12. By      
order dated 03.12.2012, the trial Court allowed the I.A and directed the
documents to be forwarded to the finger print expert for obtaining an opinion.
This order was called in question in the present C.R.P.No.6291 of 2012 by the
defendants.
        The plea of the defendants was that they disputed the thumb impressions
alleged to have been affixed by Anapalli Vandanam and Rondla Ademma in the bank  
documents, Exs.A.11 and 12, and that the same could not therefore be the basis
for comparison and verification of the thumb impressions in the disputed sale
deeds. 
Accepting this contention, the learned Judge opined that merely because
Exs.A.11 and 12 were bank documents it would not mean that Anapalli Vandanam and    
Rondla Ademma executed those documents in connection with bank transactions. 
The    
learned Judge concluded that unless there was certainty or there was no
ambiguity, no useful purpose would be served by sending Exs.A.11 and 12 along 
with the disputed sale deeds to an expert for comparison and report. 
The learned
judge observed that instead of proving these thumb impressions it would be
proper to establish the thumb impressions in the disputed sale deeds by
examining the concerned attestors, scribe or any other witness/witnesses. 
The
learned Judge held that the trial Court allowed the I.A. without basis and on
unsustainable surmises. Holding so, the learned Judge allowed the C.R.P. and set
aside the order passed by the trial Court. Hence, this review petition.
        Heard Sri K.S.Gopala Krishnan, learned counsel appearing for Sri
T.C.Krishnan, learned counsel for the review petitioners/plaintiffs, and Sri
Karra Srinivas, learned counsel for the respondents/defendants.
        Section 4 of the Banker's Books Evidence Act, 1891 (for brevity, 'the Act
of 1891') is relied upon by the review petitioners/plaintiffs. 
This Section
relates to the mode of proof of entries in banker's books and reads as under:
"4.     Mode of proof of entries in banker's books.--
Subject to the provisions
of this Act, a certified copy of any entry in a banker's book shall in all legal
proceedings be received as prima facie evidence of the existence of such entry,
and shall be admitted as evidence of the matters, transactions and accounts
therein recorded in every case where, and to the same extent as, the original
entry itself is now by law admissible, but not further or otherwise."

        Under the above provision a presumption as to the genuineness of the
matter/transaction/account recorded in an entry in the banker's books would
arise upon a certified copy of such entry being adduced as prima facie evidence
of the existence of such entry.
This presumption, as is clear from the
provision, would apply to all legal proceedings. 
A 'Legal Proceeding' is defined
under Section 2(4) of the Act of 1891 in the widest possible terms to include,
amongst others, any proceeding or enquiry in which evidence is or may be given.
        Banker's Books, under Section 2(3) of the Act of 1891, are defined as
under:
(3)     "bankers' books" include ledgers, day-books, cash-books, account-books and 
all other records used in the ordinary business of the bank, whether these
records are kept in written form or stored in a micro film, magnetic tape or in
any other form of mechanical or electronic data retrieval mechanism, either
onsite or at any offsite location including a back-up or disaster recovery site
or both;
        
        Thus, any record maintained of its ordinary business by the bank in the
written form or on micro film etc., would fall within the ambit of this
definition.
        Ex.A.11 is the certified copy of a proforma obtained by the Vavveru
Cooperative Rural Bank Limited from Rondla Ademma wherein she declared that the  
bank rules had been read by her and that she accepted it as being binding upon
her. This declaration was executed on 22.04.1993 and bore her left thumb
impression. Again, in the column specified for specimen signatures, a thumb
impression with the endorsement 'LTI of Rondla Ademma' is found. Ex.A12 is the
proforma 'Declaration creating charge' obtained by the Vavveru Cooperative Rural
Bank Limited from Anapalli Vandanam, wherein he admitted his membership in the  
Bank and created a charge on his property towards securing a loan. The schedule
in this proforma, bearing the details of the land mortgaged, is appended with a
thumb impression with the inscription 'LTI of Anapalli Vandanam'. The second
page of this proforma again bears a thumb impression with the endorsement 'LTI
of Anapalli Vandanam'.
        These documents, being a record of the bank's usual and ordinary business
transactions, fall squarely within the ambit of banker's documents as defined in
Section 2 (3) of the Act of 1891.
In terms of Section 4 of the said Act, a
presumption therefore attaches to the certified copies of these documents as
prima facie evidence of the transactions recorded therein.
        Even under general law, a special status attaches to bank documents.
Section 74 of the Act of 1872 defines 'public documents'. Documents forming the
acts or records of the acts of, amongst others, public officers are included in
this definition. 
As long back as in the year 1904, a learned Judge of the
Calcutta High Court
  in CHANDI CHARAN DHAR V/s. BOISTAB CHARAN DHAR1 held that a          
loan register maintained by a bank is a public document within the meaning of
Section 74 of the Act of 1872. 
Section 76 of the Act of 1872 provides that
certified copies of such public documents can be proved by the officer having
custody thereof. In the present case, Exs.A.11 and 12 were produced from proper
custody and were marked in evidence upon examination of the bank officer
concerned. Section 77 of the Act of 1872 provides that such certified copies may
be received as proof of the contents of the public documents of which they
purport to be copies. Section 79 of the Act of 1872 attaches a presumption as to
genuineness of the certified copies of public documents admissible as evidence.
        Sri Karra Srinivas, learned counsel for the respondents/defendants, would
however contend that his clients deny that Anapalli Vandanam and Rondla Ademma   
executed Exs.A.11 and 12 and affixed their thumb impressions therein. 
But once a
presumption of genuineness attaches to the transactions recorded in Exs.A.11 and
12, they cannot be partly accepted and then doubted in part owing to a mere
denial that the documents were not entered into by the persons who allegedly
executed them. 
Once the document records that the transaction reflected therein
was between the bank and the person who affixed his/her thumb impression, prima 
facie, a presumption would operate to the effect that the thumb impression was
that of the person who allegedly entered into the transaction. 
This presumption
however, as is clear from Section 4 of the Act of 1891, would be a rebuttable
one.
It is for the respondents/defendants to adduce necessary evidence to rebut
this presumption but at the outset, the thumb impressions in these bank
documents cannot be discarded on the bald assertion of the defendants that they
disputed the genuineness thereof. The presumption arising in law would negate
such a claim.
        Expert evidence on fingerprint verification would invariably rank higher
than that on signature comparison as fingerprints would not be subject to the
vagaries and inconsistencies inherent to signatures.
In this regard, it may be
noticed that
in SUNIL CHOWDHURY V/s. ARUP KUMAR GHOSH2,
a Division Bench of the      
Calcutta High Court observed that the opinion of a handwriting expert, unlike
that of a finger print expert, is generally of a frail character and that its
fallibilities had been quite often noticed.
In so far as comparison of fingerprints by the Court is concerned the Supreme
Court, 
in THIRUVENGADAM PILLAI V/s. NAVANEETHAMMAL3, observed as under:        
"16. While there is no doubt that court can compare the disputed
handwriting/signature/finger impression with the admitted handwriting/
signature/finger impression, such comparison by court without the assistance of
any expert, has always been considered to be hazardous and risky. When it is
said that there is no bar to a court to compare the disputed finger impression
with the admitted finger impression, it goes without saying that it can record
an opinion or finding on such comparison, only after an analysis of the
characteristics of the admitted finger impression and after verifying whether
the same characteristics are found in the disputed finger impression. The
comparison of the two thumb impressions cannot be casual or by a mere glance. 
Further, a finding in the judgment that there appeared to be no marked
differences between the admitted thumb impression and disputed thumb impression, 
without anything more, cannot be accepted as a valid finding that the disputed
signature is of the person who has put the admitted thumb impression. Where the
court finds that the disputed finger impression and admitted thumb impression
are clear and where the court is in a position to identify the characteristics
of fingerprints, the court may record a finding on comparison, even in the
absence of an expert's opinion. But where the disputed thumb impression is
smudgy, vague or very light, the court should not hazard a guess by a casual
perusal."
        
        By and large, it would be advisable that the Court seek assistance of an
expert under Section 45 of the Act of 1872 for examining finger prints as the
same involves a scientific study and forensic analysis which the Court would be
incapable of undertaking independently. On the same lines, a learned Judge of
this Court,
in CHITYALGUNDAMEEDE RAMALAKSHMAMMA V/s. EDIGA RANGAMMA (DIED) PER                    
L.RS4, observed that it would not be possible for the Court to undertake
comparison of thumb impressions and it would be appropriate in the interest of
justice to permit a party to substantiate his/her case by securing the opinion
of a forensic expert.
        The next issue is
whether this Court should exercise review jurisdiction
in the matter. 
The scope of a review under Section 114 C.P.C read with Order 47
Rule 1 C.P.C fell for consideration before the Supreme Court in 
PARSION DEVI V/s. SUMITRI DEVI5. 
The Supreme Court observed that a judgment may be open to    
review, inter alia, if there is an error apparent on the face of the record;
such an error being self-evident and not requiring a process of reasoning to
detect it. The Supreme Court pointed out that review jurisdiction would not be
applicable to an 'erroneous decision' which needed rehearing and correction and
cautioned that a review petition could not be allowed to be an appeal in
disguise.
        Keeping a clear distinction between an 'error apparent on the face of the
record' and an 'erroneous decision' would thus be essential while exercising
review jurisdiction.    
        The learned Judge, while allowing the C.R.P., did not consider the import
and impact of the presumption in law which attached to the bank documents,
Exs.A.11 and 12, with which the thumb impressions in the disputed documents were  
sought to be compared. 
Consequently, it was not a case where the request for
examination by an expert could be rejected at the threshold on the ground that
the opposite party disputed the genuineness of the thumb impressions in the bank
documents. 
No doubt, the presumption which attaches to these documents is not  
absolute and it would be open to the opposite party to dislodge such presumption
by adducing evidence to the contrary. 
However, such a party cannot shut out
examination of these documents by an expert by a bald assertion that it disputed
the genuineness thereof. This Court therefore finds that the order under review
reflected an error apparent.
        The order passed by the Court below was therefore just and valid in law
and did not brook interference. The order dated 28.01.2013 holding to the
contrary and allowing the C.R.P. is accordingly set aside. Review CRP MP No.1362 
of 20013 is allowed and the Civil Revision Petition is dismissed. No order as to
costs.


-------------------------------------------
SANJAY KUMAR, J.  
16TH SEPTEMBER, 2013.

Sec.205, 313 and 317 Cr.P.C. - it can be used for not only condone the absence but also for conducting trial in the absence of trial - No court can refuse such petition unless his presence is necessary for answering charges and for answering sec . 313 examination when he was not represented by special vakalt holder under sec.205 Cr.P.C. - Hence transfer of a case due to medical ground from machalipatnam to Hyderbad not necessary - petition dismissed = Yarlagadda Venkata Krishna Rao The State of Andhra Pradesh through Public Prosecutor and another = published in judis.nic.in/judis_andhra/filename=3735

Sec.205, 313 and 317 Cr.P.C.  - it can be used for not only condone the absence but also for conducting trial in the absence of trial - No court can refuse such petition unless his presence is necessary for answering charges and for answering sec . 313 examination when he was not represented by special vakalt holder under sec.205 Cr.P.C. - Hence transfer of a case due to medical ground from machalipatnam to Hyderbad not necessary - petition dismissed =

Here is a case where the complainant and the accused are known to each other. 
Therefore, there is no need for the physical presence of the accused on each and
every adjournment and he can certainly request the Court to dispense with his
presence and to proceed with the trial in his absence and in the presence of his
counsel.
Even on the dates on which the cases are posted for
examination of accused under Section 239 Cr.P.C. or for framing of charges or
for examination of accused under Section 313 Cr.P.C. if some of the accused
could not be present, nothing prevents the trial Courts to proceed with such
examination of the accused in piece meal in the interests of quick disposal of
cases and also to avoid harassment to the co-accused.

When the accused is represented by a counsel and the physical 
presence of the accused is not required to proceed with the trial and when an
application is filed on behalf of the accused requesting the Court to proceed
with the trial in his absence but in the presence of his counsel, there is no
justification for any Court to refuse to proceed with the trial of the case
except in cases where the witnesses are required to identify the accused.
Section
317 Cr.P.C. is incorporated in the Code to enable the Court to proceed with the
trial even in the absence of sole accused or one of the accused. The Court can
record the same reason viz. filing of the application by the accused and proceed
with the trial in the absence of accused.  
Whenever physical presence of the
accused is required i.e. at the time of framing of charges, examination of accused under Section 313 Cr.P.C. etc. the Court may insist his presence if the accused is not represented by counsel on special vakalat under Section 205
Cr.P.C.  
The Courts are obligated to conduct trial in the presence of the
accused for the reason that no incriminating evidence shall be recorded behind
the back of the accused.

However, in this case the Magistrate is directed to
dispense with the presence of the accused during the stage of trial except on
the date of examination under Section 313 Cr.P.C. and on the date of
pronouncement of judgment, on a petition filed by the accused under Section 317
Cr.P.C.  Thus, this point is held accordingly.
IN THE RESULT, the criminal petition is dismissed giving liberty to the
petitioner to file a petition under Section 317 Cr.P.C. before the trial Court
to dispense with his presence on the dates on which he is unable to attend the
Court and on such application, the Magistrate shall proceed with the trial in
the absence of the accused but in the presence of his counsel.

THE HON'BLE SRI JUSTICE P.LAKSHMANA REDDY          
Criminal Petition No.7524 OF 2003

10-08-2006

Yarlagadda Venkata Krishna Rao

The State of Andhra Pradesh through Public Prosecutor and another

COUNSEL FOR THE PETITIONER: Mr.C.Praveen Kumar        

COUNSEL FOR THE RESPONDENT No.1: PUBLIC PROSECUTOR              
COUNSEL FOR THE RESPONDENT No.2: Mr.K.Venkata Rangadas          

:ORAL ORDER:  

        This Criminal Petition is filed under Section 407 Cr.P.C. seeking transfer
of C.C.No.167 of 2000 from the file of the II Additional Judicial Magistrate of
First Class, Machilipatnam to any other Court at Secunderabad.
        The relevant facts in brief are as follows:
        The second respondent herein filed private complaint before the police
alleging that the petitioner-accused committed the offence punishable under
Section 138 of the Negotiable Instruments Act (for short "the Act").  The
learned Magistrate forwarded the same to the police and the police after
investigation filed charge sheet against him and the learned Magistrate took the
case on file and commenced trial.
During the course of trial the petitioner has come forward with this petition
for transfer of the case from Machilipatnam to any other Court at Secunderabad
on the ground that he met with an accident and received grievous injuries and he
is unable to attend the Court at Machilipatnam and therefore the case may be
transferred to any other Court in twin cities.
        The learned counsel for the petitioner reiterated the contentions raised
in the petition.
        The learned Additional Public Prosecutor opposed the transfer of the case.
       
        The point that arises for determination in this petition is:
Whether  this is a fit case to   transfer C.C.No.167 of 2000 from the file of
the II Additional Judicial Magistrate of First Class, Machilipatnam to any other
Court at Secunderabad?
POINT:
It is not disputed that the offence took place within the jurisdiction of the
Court at Machilipatnam and the complainant and his witnesses reside at
Machilipatnam.  Merely because the accused received injuries and he is unable to
attend the Court at Machilipatnam, the case cannot be transferred to the Court
situate where the accused resides.  Admittedly the trial has been commenced and
there is no need for the accused to be present for each and every adjournment
and he can avail Section 317 Cr.P.C. by filing a petition before the Court to
proceed with the trial in his absence and in the presence of his counsel.
At this stage, the learned counsel for the petitioner submitted that the Courts
below are entertaining petitions filed under Section 317 Cr.P.C. only for
adjourning the cases and not for proceeding with the trial or enquiry of the
cases in the absence of accused even if he is represented by a counsel. If
really such is the practice prevailing in the trial Courts, it is to be
deprecated. When the accused is represented by a counsel and the physical 
presence of the accused is not required to proceed with the trial and when an
application is filed on behalf of the accused requesting the Court to proceed
with the trial in his absence but in the presence of his counsel, there is no
justification for any Court to refuse to proceed with the trial of the case
except in cases where the witnesses are required to identify the accused.
Section 317 Cr.P.C. is incorporated in the Code to enable the Court to proceed with the
trial even in the absence of sole accused or one of the accused. The Court can
record the same reason viz. filing of the application by the accused and proceed
with the trial in the absence of accused.  
Whenever physical presence of the
accused is required i.e. at the time of framing of charges, examination of
accused under Section 313 Cr.P.C. etc. the Court may insist his presence if the
accused is not represented by counsel on special vakalat under Section 205
Cr.P.C.  The Courts are obligated to conduct trial in the presence of the
accused for the reason that no incriminating evidence shall be recorded behind
the back of the accused.
In other words, the accused is given a right to insist
for his presence at the time of recording evidence against him. 
 If the accused
files an application waiving his right to be present at the time of recording
evidence against him and requesting the Courts to proceed with the trial in his
absence no court can refuse to proceed with the trial in his absence unless the
identification of the accused in Court by the witnesses is necessary. 
If the
trial Courts fail to avail the enabling provision contained in Section 317
Cr.P.C. it affects the quick disposal of cases and also causes lot of
inconvenience to the witnesses and also the co-accused if any.  For example, in
a case where number of persons are arrayed as accused, one of them or some of 
them may remain absent for valid and sufficient reasons on several occasions and
if the Court does not proceed with the trial of the case on account of the
absence of one of the accused, the Court may not be able to dispose of such case
at the earliest.
Even on the dates on which the cases are posted for
examination of accused under Section 239 Cr.P.C. or for framing of charges or
for examination of accused under Section 313 Cr.P.C. if some of the accused
could not be present, nothing prevents the trial Courts to proceed with such
examination of the accused in piece meal in the interests of quick disposal of
cases and also to avoid harassment to the co-accused.  The trial Courts are
advised to make use of the enabling provision contained in Section 317 Cr.P.C.
for quick disposal of cases and to avoid unnecessary adjournments.
Here is a case where the complainant and the accused are known to each other. 
Therefore, there is no need for the physical presence of the accused on each and
every adjournment and he can certainly request the Court to dispense with his
presence and to proceed with the trial in his absence and in the presence of his
counsel.
        Hence, I do not find any force in the contention of the learned counsel
for the petitioner.  However, in this case the Magistrate is directed to
dispense with the presence of the accused during the stage of trial except on
the date of examination under Section 313 Cr.P.C. and on the date of
pronouncement of judgment, on a petition filed by the accused under Section 317
Cr.P.C.  Thus, this point is held accordingly.
IN THE RESULT, the criminal petition is dismissed giving liberty to the
petitioner to file a petition under Section 317 Cr.P.C. before the trial Court
to dispense with his presence on the dates on which he is unable to attend the
Court and on such application, the Magistrate shall proceed with the trial in
the absence of the accused but in the presence of his counsel.

Divorce - Hindu Marriage Act - Jurisdiction -Or.VII, rule 11 C.P.C.I.A. filed through father - both spouses are permanent residents of England - Wife father filed a complaint under sec.498 A I.P.C against husband at Hyd - family court at Hyd has no jurisdiction over the case - Husband can not file Divorce O.P. on temporary visit to India - Sec.19 of Hindu Marriage Act - Where wife resides - Where marriage was taken place - Trial court returned the OP to present in proper court - High court confirmed the order and dismissed the CMA = PUBLISHED IN judis.nic.in/judis_andhra/filename=10320

Divorce - Hindu Marriage Act - Jurisdiction -Or.VII, rule 11 C.P.C. I.A. filed through father- both spouses are permanent residents of England - Wife father filed a complaint under sec.498 A I.P.C against husband at Hyd - family court at Hyd has no jurisdiction over the case - Husband can not file Divorce O.P. on temporary visit to India -  Sec.19 of Hindu Marriage Act - Where wife resides - Where marriage was taken place - Trial court returned the OP to present in proper court - High court confirmed the order and dismissed the CMA = 
The Hindu Marriage Act contains several provisions, which have a
leaning towards a woman spouse.  One such provision is Section 19 of the Act.
        9.  As observed earlier, the place of residence of defendant in a suit or
respondent in the O.P. would be an important factor to decide the territorial
jurisdiction in relation to for institution of a suit or O.P.  
However, the
provision referred to above carves out an exception in favour of a woman spouse.
Irrespective of the place of the residence of her husband, a woman can institute
the proceedings within whose territorial jurisdiction she resides.  
If this is
the exception accorded to the woman spouse, it is just un-understandable as to
how the appellant thought of instituting the proceedings at Ranga Reddy
District, when admittedly his wife is residing in England. 
 Even if he is
residing in India, it is as a visitor than a permanent or regular resident.
        10.  The appellant sought to justify the institution of the O.P. in the
Court at Ranga Reddy District by citing the reason that an F.I.R. was registered
against him under Section 498-A I.P.C in Chandanagar Police Station at
Hyderabad. 
A perusal of the F.I.R. discloses that the compliant was submitted
by the father of the respondent, but not herself.  
Further, the circumstances,
under which a criminal case is instituted are totally different from those that constitute the basis for filing civil cases.  
The trial Court has taken correct
view of the matter and we are not inclined to interfere with the same.
11.  The C.M.A. is dismissed.  There shall be no order as to costs. The
Miscellaneous Application filed in this C.M.A. shall stand disposed of.

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE S.V. BHATT              

C.M.A. No.218 OF 2013

Dated 03-09-2013
    ,...............APPELLANT/RESPOLNDENT/PETITIONER       

..........RESPONDENT/PETITIONER/RESPONDENT         
     
Counsel for Appellant   :   Sri O. Manohar Reddy.

Counsel for Respondent  :   Sri J.C. Francis.


<GIST :

>HEAD NOTE :

?Cases referred :

HON'BLE SRI JUSTICE L. NARASIMHA REDDY      

AND

HON'BLE SRI JUSTICE S.V. BHATT  

C.M.A. No.218 OF 2013

JUDGMENT :

        The appellant herein filed O.P. No.794 of 2010 before the Family Court,
Ranga Reddy District at L.B. Nagar, against his wife the respondent herein under
Sections 13(1a) and (1b) of the Hindu Marriage Act, for divorce. 
 He pleaded
that the marriage between them took place on 19.02.2003   and that they were
blessed with a male child on 08.07.2005.  Both of them are settled in Norwich,
England.
The appellant claims to be rationalist and sated that before his
marriage with respondent, a rosy picture was given to him.    
He stated that
after marriage, the respondent started acting in irrational and eccentric manner
and used to get irritated without any provocation.  
He alleged that the
respondent used to spend lavishly and that he had to incur huge expenditure, to
satisfy her needs.  
He has also furnished the details of travel to India and the
developments that have taken place between them over the period and ultimately
prayed for decree of divorce.
        2.  The respondent entered appearance in the O.P. and she filed I.A.
No.1898 of 2012 under Order VII Rule 11 of C.P.C. with a prayer to reject the
O.P.  
She pleaded that the appellant and herself are permanent residents of England and that there is no basis or justification for the appellant to file O.P. in a Court in India.
She further pleaded that even if the appellant has
came to India for a short visit, he cannot institute the O.P. against her, when she is a permanent resident of England.  
The I.A. was opposed by the appellant.
The trial Court allowed the I.A. through the order dated 08.01.2013. Hence, this
C.M.A. under Order 43 rule 1 C.P.C.
        3.  Sri O. Manohar Reddy, learned counsel for the appellant submits that a
plaint or original petition filed in a civil Court can be rejected only on
establishing the grounds mentioned in the Rule 11 of Order VII of C.P.C., and
none of such grounds are present in the instant case.  He pleads that the very
fact that the trial Court has directed return of O.P. discloses that I.A. filed
under Order VII Rule 11 of C.P.C. was untenable.  The learned counsel further
submits that even if the defendant in a suit, or respondent in O.P. take the
plea that the Court does not have territorial jurisdiction in the matter, the
same can be decided as a preliminary or one of the issues.
        4.  Sri J.C. Francis, learned counsel for the respondent on the other
hand, submits that the appellant filed the O.P. before trial Court with a
malafide intention to harass the respondent and the minor child.  He submits
that undisputedly both the parties are permanent residents of England (United
Kingdom) and the behaviour of the appellant towards the respondent was totally
unbearable.  The learned counsel submits that the intention of the appellant in
filing the O.P. in India is that in case the respondent travels to this country,
the VISA and other documents become invalid for want of renewal and thereafter
he can get rid of her once for all.
        5.  The appellant instituted proceedings before the Family Court claiming
divorce against the respondent.  Extensive narration of various events is made
in the O.P.  This is not the stage or occasion to deal with the same.
        6.  On coming to know that the O.P. is filed against her, the respondent
got filed I.A. No.1898 of 2012 through her father, who is a resident of India.
It was stated that the trial Court has no jurisdiction since both the parties
are residing in England.
The plea of the appellant on the other hand was that
although they are the permanent residents of United Kingdom, they occasionally
come to India and in fact a case under Section 498-A I.P.C. was instituted
against him in Chandanagar police station at Hyderabad.  The Family Court
directed that the O.P. be returned for being presented before the proper Court.
        7.  The provisions contained in C.P.C. particularly from Sections 16 to 20
mandate that a suit or petition must be instituted in a Court within whose
territorial jurisdiction the defendant or respondent as the case may be,
resides.
The other factors that guide the jurisdiction of the Court, are the
location of the subject matter of the proceedings, or the place at which the
cause of action has arisen.
The proceedings under the Hindu Marriage Act are
also covered by these provisions.  Normally proceedings are instituted in the
Court, within whose territorial jurisdiction, the respondent in the O.P.
resides.  There may also be instances, where the O.P. is filed in the Court
within whose jurisdiction the marriage has taken place.
However, though the
O.P. in such cases can be said to have been filed as per law, if the respondent
in such O.P. raises an objection stating that she is not residing in that place,
the application under Section 24 of C.P.C. for transfer of the proceedings is
entertained.
        8.  The Hindu Marriage Act contains several provisions, which have a
leaning towards a woman spouse.  One such provision is Section 19 of the Act.
        9.  As observed earlier, the place of residence of defendant in a suit or
respondent in the O.P. would be an important factor to decide the territorial
jurisdiction in relation to for institution of a suit or O.P.
However, the
provision referred to above carves out an exception in favour of a woman spouse.
Irrespective of the place of the residence of her husband, a woman can institute
the proceedings within whose territorial jurisdiction she resides.  
If this is
the exception accorded to the woman spouse, it is just un-understandable as to
how the appellant thought of instituting the proceedings at Ranga Reddy
District, when admittedly his wife is residing in England. 
 Even if he is
residing in India, it is as a visitor than a permanent or regular resident.
        10.  The appellant sought to justify the institution of the O.P. in the
Court at Ranga Reddy District by citing the reason that an F.I.R. was registered
against him under Section 498-A I.P.C in Chandanagar Police Station at
Hyderabad.  A perusal of the F.I.R. discloses that the compliant was submitted
by the father of the respondent, but not herself.  
Further, the circumstances,
under which a criminal case is instituted are totally different from those that constitute the basis for filing civil cases.  
The trial Court has taken correct
view of the matter and we are not inclined to interfere with the same.
11.  The C.M.A. is dismissed.  There shall be no order as to costs. The
Miscellaneous Application filed in this C.M.A. shall stand disposed of.
______________________  
L. NARASIMHA REDDY, J  
_____________________  
S.V. BHATT, J
September 3, 2013

Divorce - Hindu Marriage Act - Husband failed to prove cruelty of wife - mere filing of complaint under sec.498 A of I.P.C. - not amounts to cruelty - Lower court rightly dismissed the divorce op, no grounds to interfere = Dr. Kantilal G. Jain ..Appellant Dr. C. Sailaja ..Respondent = published in judis.nic.in/judis_andhra/filename=10318

Divorce - Hindu Marriage Act - Husband failed to prove cruelty of wife - mere filing of complaint under sec.498 A of I.P.C. - not amounts to cruelty - Lower court rightly dismissed the divorce op, no grounds to interfere =  
The mere filing of complaint under Section
498-A of I.P.C. cannot be treated as making unfounded allegations.  Acrimony
between the parties is clear and the evidence on record discloses that many
averments of the appellant are not true.  If every complaint filed under Section
498-A I.P.C is to be treated as an act of cruelty, the easiest way for a husband
to get divorce from his wife would be to cause harassment, leading to filing a
complaint under Section 498-A IPC and then to file an O.P under Section 13(1)
(ia) and (ib) of the Act, citing the filing of complaint as an act of cruelty.

THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE.S.V. BHATT                    

F.C.A.No.145 of 2013

 (Judgment of the Bench delivered by
 the Hon'ble Sri Justice L. Narasimha Reddy)

dated:13-09-2013

Dr. Kantilal G. Jain ..Appellant

Dr. C. Sailaja ..Respondent

Counsel for the appellant:  Smt. D. Vathsalendra

Counsel for the Respondent:  Sri Y. Rama Rao

<GIST:

>HEAD NOTE:  

?Cases referred
2013(3) ALD 11(SC)

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

AND

THE HON'BLE SRI JUSTICE S.V. BHATT    


F.C.A No.145 of  2013

JUDGMENT: (Per the Hon'ble Sri Justice L. Narasimha Reddy)

        The appellant is the husband of the respondent.  Their marriage took place
in the year 1989 when both of them were studying M.B.B.S. Course, at Bangalore.
It is stated to be love marriage and that at a later point of time, a formal
marriage was performed on 20-05-1990 at Tirupati in the presence of the parents
of the respondent.  The marriage is said to have been registered, five years
thereafter, i.e., on 28-03-1995, when they have shifted their residence to
Hyderabad.  They were also blessed with two daughters.
       
        The appellant filed O.P.No.685 of 2006 before the Additional Family Court,
Hyderabad for divorce against the respondent, under Section 13(1)(ia) and (ib)
of the Hindu Marriage Act (for short 'the Act'). 
 He pleaded the grounds of
cruelty and desertion on the part of the respondent.  In the O.P., the appellant
pleaded that after the birth of the second daughter, the respondent insisted
that he should get his share in the property of his parents at Shimoga,
Karnataka State and when she did not agree for the establishment of a Diagnostic
Centre at Mangalore, he was compelled to come back to Hyderabad to practice 
medicine.   He has also stated that even after he started living in a rented
house at Himayathnagar, she did not allow him to visit his parents at Shimoga.
The respondent is said to have subjected him to harassment of various forms and
to ill-treat him.  It was also alleged that the respondent did not permit the
parents of the appellant to come to their house and if on any occasions they
visited Hyderabad, she created scenes.

        Another plea of the respondent was that in the year 2002, when he got
admission in a Post-Graduate course in C.D.R. Hospital, at Hyderabad, she has
virtually driven him out from the house, and when he stayed temporarily at the
Hospital, she came to that place and created an ugly scene, so much so, sought
to attack him physically.  The respondent and her father are said to have
insisted that the appellant should not shift his parents to Hyderabad and that
they have threatened to institute criminal cases in case, he does not act as per
their wish.  The respondent is also said to have harassed the appellant in
several ways, both when she went to Coimbatore, for higher studies, and after
coming back.  She is said to have insisted that he should maintain the Maternity
Nursing Home established by her mother.  It was also alleged that on account of
harassment and false representations made by the respondent, the appellant could
not complete the P.G. Course.  He made a detailed reference to the e-mails, or
derogatory messages said to have been sent by the respondent.
Reference was 
also made to the registration of Crime No.244 of 2006 in the Court of
XIII Additional Chief Metropolitan Magistrate, Hyderabad, in connection whereof,
himself and his family members were said to have been called to Police Station.
With these and other related allegations, the appellant prayed for a decree of
divorce.
       
        The respondent filed a counter in the O.P., opposing the same.  The
averments as to the marriage, registration thereof, birth of children are not
disputed.  She denied the allegation as to her demand for share in the property
at Shimoga.  According to her,
a diagnostic centre was established at Shimoga in the year 1997 and the same has
resulted in the loss to the tune of Rs.40 to 50 lakhs.  She alleged that the
appellant insisted on her to bring the money to defray the losses.  She has also
stated that when they were staying at Mangalore, the brother of the appellant
used to come to that place from Sagar, and pick up quarrels even on trivial
issues.  She alleged that after the birth of the second daughter, the appellant
and his family members demanded a sum of Rs.15 lakhs and harassed her and the  
family members, mercilessly.  The details of the higher studies undertaken by
her and respondent were also furnished. She stated that at one point of time,
the appellant has become wild and hardly hit upon her nose, resulting fracture
injury as well as bruise to the shoulder. In addition to denying the
allegations, she has also presented certain instances of alleged harassment to
her by the appellant.
       
        Through its order dated 21-09-2011, the trial Court dismissed the O.P.
Hence, this appeal under Section 19 of the Family Courts Act, 1984.
       
        Smt. D. Vathsalendra, learned counsel for the appellant submits that
though it is a love marriage between the parties, they lived together just for
about seven years, and thereafter, the respondent subjected the appellant to
harassment of different forms.  She contends that the trouble started when the
respondent insisted that the appellant must get his share in the joint family
property at their native place, and on that pretext, she has
ill-treated, not only the appellant, but also his family members.  According to
her, the respondent did not evince any interest to see the parents of the
appellant at their native place, nor did she permit the relations of the
appellant to visit their house.  She further submitted that the respondent has
virtually thrown the appellant from their house with all the articles and that
he had to seek shelter at a Hospital.   According to her, certain anonymous 
letters were fabricated by the respondent, damaging the study of the P.G. Course
by the appellant and that the same has resulted in his disqualification.
        
        Learned counsel for the appellant further submits that the institution of
criminal case against the appellant and his family members has taken the
harassment to the pinnacle.  She submits that the facts pleaded by the appellant
and the evidence adduced by him are sufficient to hold that the grounds of
desertion and cruelty are proved and the trial Court ought to have granted the
decree.  She has placed reliance upon several precedents.
       
        Sri Y. Rama Rao, learned counsel for the respondent, on the other hand,
submits that none of the facts pleaded by the appellant in his O.P., are true
and they were not established.
He submits that each and every plea raised by the appellant was found to be not
correct.  He contends that the respondent never demanded that the appellant must
get his share in the joint family property.  According to him, the respondent
and her parents met the entire expenditure for the maintenance of the parties
herein, and their children.  He submits that the very fact that the appellant
and the respondent lived for considerable time at Mangalore, and have stayed on
number of occasions at their native place at Sagar, proves that the contention
that she did not visit the native place of the appellant is not correct.

        Learned counsel further submits that whenever the parents of the appellant
visited Hyderabad, the respondent used to treat them with utmost respect and
even the knee replacement operation for the mother of the appellant was
conducted by the father of the respondent.  He contends that the allegation as
to the driving away of the appellant, by the respondent was not at all proved.
As regards the allegation as to cruelty, learned counsel submits that in fact,
is it is appellant who has resorted to acts of cruelty by causing serious injury
to the nose and shoulder of the respondent, and that the same is clear from the
evidence on record.  He contends that the mere institution of a criminal case,
that too when there existed valid basis, does not constitute an act of cruelty.
       
        The appellant and the respondent got married when they were studying
M.B.B.S at Bangalore.  The O.P for divorce was filed 16 years after their
marriage, alleging grounds of desertion and cruelty.  On the basis of the
pleadings before it, the trial Court framed only one point for its
consideration, viz.,
       
        Whether the respondent has deserted the appellant and   committed any
cruelty towards him.

        The appellant examined PWs 1 to 5 and filed Exs.P-1 to P-24.  On behalf of
the respondent, RWs 1 to 3 were examined and Exs.R-1 to R-28 were filed.  A
certificate dated 30-06-2011 is taken on record as Ex.X-1.  The O.P. was
dismissed.
       
        In view of the extensive arguments advanced in the appeal, the points that
arise for consideration are, whether
a) the appellant has proved the grounds of desertion; and
b) whether he is proved the ground of cruelty as against the respondent.

        It is rather unfortunate that the appellant and the respondent who had so
much of liking for each other, and married, even by denying their parents, could
not put up with each other, after they lived for about more than one and half
decade.  The record discloses that before her marriage with the appellant, the
respondent was married to another, but was divorced.  Though the marriage
between the parties herein is said to have taken place in 1989, the appellant
did not reveal the same to his parents for quite a considerable time.  Another
peculiarity is that nearly seven months after the informal love marriage, a
marriage with all rituals was performed on 20-06-1990 and registration thereof
was made in the year 1995.  The parties lived together, they are blessed with
two daughters in the year 1993 and 1995 respectively.
       
        The appellant alleged that the respondent started harassing him from 1997
onwards by insisting on getting a share in the joint family property and that
she used to either dislike or ill-treat his parents and relatives.
       
        First, it needs to be seen as to whether the appellant has proved the
ground of desertion.  Normally, the ground of this nature is pleaded when one of
the spouses leaves the company of the other, without any justification or is
driven out highhandedly by the other spouse.  In the instant case, the appellant
and the respondent were living at Hyderabad from 1997 onwards.  It appears,
before that, the appellant made an endeavour to open a diagnostic centre at
Bangalore, and that did not fructify.  The case of desertion attributed to the
respondent is that she has thrown away the appellant from the home.
       
        It is important to mention that the parents of the respondent are reputed
medical practitioners.  While her father is an Orthopaedician, her mother was
running a Maternity Hospital at Hyderabad, and in fact, the appellant worked in
that hospital before he shifted to Mangalore.  Deposing as PW-1, the appellant
stated that in the year 2002, on one occasion, the respondent abused him and
necked out him from the house by packing all his belongings in a carton and
sending them to the reception of C.D.R. Hospital, where he was pursuing higher
studies.  He repeated the same in his chief-examination. However, it has come in
the evidence that they started living together thereafter. Therefore, the
alleged act of driving him out becomes relevant.
       
        The second act pleaded by him, as constituting the desertion is that,
before proceeding to Coimbatore, for higher studies in August, 2004, the
respondent asked him to arrange for a separate residence. From then onwards, the
appellant is said to be residing in Working Mens' Hostel.  He has also stated
that after the respondent returned from Coimbatore, he made an attempt to
convince her to join the matrimonial home.  The reply, according to him, was
that he must come and live in the house of the respondent and manage the
maternity nursing home established by her mother and that the condition was not
acceptable to him. Even if these averments are taken as true, they cannot
constitute desertion.  It is only when the respondent refused to join him and
expressed disinclination to live with him, that acts of desertion can be
inferred.  The fact that the appellant lived separately when the respondent was
undergoing studies at Coimbatore, or that she insisted him to help them in
running a nursing home cannot be treated as acts of desertion, or of cruelty.
He was not required to commit any illegality.  If he was not inclined to look
after the nursing home, he could have convinced the respondent about his. We
therefore find that the appellant failed to prove the ground of desertion.
       
        Now comes the plea as to cruelty.
       
        That there existed disharmony between the parties is abundantly clear from
the tone and tenor of the pleadings and the evidence on record.  However, mere
lack of harmony between the spouses does not lead to inference of cruelty.  As
PW-1, the appellant narrated the sequence of events in his life with the
respondent.  PW-2 is his father and PW-3 is his brother.  It elicited from them
that the knee replacement operation of the mother of the appellant was conducted
by the father of the respondent,
at their own hospital.  Though the appellant made an attempt to plead that the
charges were collected, the respondent pleads that the vouchers were filled on
the request of the appellant for obtaining medical reimbursement.  The
allegation that the respondent did not permit the parents and other relations of
the appellant to visit their house is equally belied from the admission of the
appellant as well as the other witnesses.  It was elicited that the couple
visited Sagar and lived there for some time.  No instances of the respondent
objecting to the visit by the parents or relations of the appellant were cited.
       
        PW-4 is a Doctor by profession.  He is not only acquainted with the
parties, but also the parents of the respondent, but if one looks at his
evidence, it hardly commands any respect or trustworthiness.  He was  treated as
an elderly person by both the parties.  However, his evidence does not befit his
stature, nor does it reflect neutrality.  Even according to him, the appellant
was introduced to him by the respondent and he arranged for the employment of
the appellant.  The following was elicited from him in the cross-examination:
       
        "...I met petitioner in 2001 when he come to CDR hospital along with his
wife Dr Sailaja as he wanted to work with me and she introduced him.
Accordingly he was appointed for some time he worked honorary and there after he
was paid ..."

"...I knew both Dr.C.V. Rathnam and Dr. Padmavathi the parents of the
Respondent.  Dr.C.V. Rathnam was humble, Police, gentle polite character..."
       
        ...According to me they had their different of opinions with their
families from both sides which resulted in a serious rift which I could not
patch up.  I pached it up several times but it fell up several times...
        ...Whenever the father-in-law of the respondent, that is father of the
petitioner visiting Hyderabad he was staying with petitioner and respondent.  I
met him only once there.  I have seen the carton with clothes of Kanthi in the
reception of our Hospital and the reception people told me that the servant maid
of Dr.Kanthi Lal Jain and Dr.Sailaja has brought and left them...
        ...Since Kanthi Lal Jain could not go back to his house and stayed in the
hospital I assumed that he is thrown out of the house, as he (Petitioner) told
me that he was thrown out."
       
        The most objectionable statement on his part was this,

        ...I feel that even if there is no interference from any one, it is not
possible for them to live together and only option is dissolution of marriage"
       
        This does not at all befit a family friend of reputed couple of Doctors
and of an elderly person.  Either he was trying to exhibit his heat and hatred
towards the family or was unduly siding with the appellant.
       
        The evidence of PW-5 is not at all helpful to the appellant.
On the other hand, it disproves his case.  The main purport of the evidence of
this witness is that it is on account of certain complaints against the
appellant, that he could not get through the DNB Artho exams.  He stated that
there is a serious matrimonial dispute between the appellant and the respondent,
but expressed the view that they can live happily, if outsiders interference is
not there.
He was truthful to a larger extent and said,

        "...I am aware of the injuries of the Respondent has suffered in past 8
years.  I know only one injury of her nose.  She herself informed about the
injury.  She told me that she had gone to the room of the petitioner, they had
an argument and he had hit her, he also bit her on the shoulder.  She informed
me about this on phone.  Thereafter I went to her place saw the wounds on her
nose, shoulder.  I had enquired with petitioner about the injuries.  He told me
that she came to his room picked up argument, threw all the articles in the room
helter skelter, and kicked him in the scrotam and in order to protect himself he
had hit her.  There after I enquired with her and she had informed me that she
gone to Apollo hospital got treated and has diagnosed for nasal bone fracture.
I did not inquire with petitioner whether he has visited respondent or not after
the incident took place as to her welfare after the injuries.  To my awareness
it is correct to say that petitioner has not got the Respondent treated for this
injuries..."
       
        When PW-5 has categorically stated that the appellant did not even get the
injury of his wife, the respondent, treated, no court can infer an act of
cruelty on the part of the respondent.  The possibility, if at all, can be
otherwise.
       
        Learned counsel for the appellant placed reliance upon the judgment of the
Supreme Court in K. Srinivas Rao v. D.A. Deepa1,
in support of the contention that, if unfounded allegations are made against one
spouse by the other and prosecution is launched, that itself can constitute a
ground of cruelty.

        In the instant case, the appellant failed to prove that unfounded
allegations are made against him.  The mere filing of complaint under Section
498-A of I.P.C. cannot be treated as making unfounded allegations.  Acrimony
between the parties is clear and the evidence on record discloses that many
averments of the appellant are not true.  If every complaint filed under Section
498-A I.P.C is to be treated as an act of cruelty, the easiest way for a husband
to get divorce from his wife would be to cause harassment, leading to filing a
complaint under Section 498-A IPC and then to file an O.P under Section 13(1)
(ia) and (ib) of the Act, citing the filing of complaint as an act of cruelty.
Other citations relied upon by the learned counsel for the appellant are
distinguishable on facts.
        Extensive reference is made to the documentary evidence of the respective
parties, or the truth or otherwise of the levy of hospital charges for the knee
replacement of the mother of the appellant. All those factors pale into
insignificance, once this Court finds that the appellant failed to prove the
grounds of cruelty.
We hope and expect that at least in the interest of the children, who are grown
up and desperately need the parental cover, the parties would dissolve their
differences.
               
        The appeal is accordingly dismissed.  The miscellaneous petitions filed in
this appeal shall also stand disposed of.

There shall be no order as to costs.

_______________________  
L. NARASIMHA REDDY, J    
______________________  
S.V.BHATT, J
Dt.13-09-2013