FA/36/2012 of SMT MAMTA NEGI Vs YOGENDRA SINGH NEGI

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Review Application No. 780 of 2019 In

First Appeal No. 36 of 2012

Smt. Mamta Negi

………… Appellant

versus

Yogendra Singh Negi .…………. Respondent

Present: Mr. J.P.Joshi, Senior Advocate assisted by Mr. Anirudh Joshi, Advocate for the appellant. the appellant.

Mr. Pawan Mishra, Advocate for the respondent.

Coram: Hon’ble Alok Singh, J.Hon’ble Ravindra Maithani, J.

Hon’ble Ravindra Maithani, J. (Oral)

The review is preferred against judgment dated 12.07.2019, passed in First Appeal No. 36 of 2012, Mamta Negi vs. Yogendra Singh Negi by this Court. The grounds for the review are as follows:-

(i)General epilepsy is not ground of divorce as it is not disease of mental disorder. not disease of mental disorder.

(ii)Non production of any evidence by the wife is not ground for divorce. ground for divorce.

2. Learned counsel would submit that in para-8 of the judgment, this Court observes that the wife did not adduce any evidence in the trial court, therefore, the decree is upheld, but, according to learned counsel, it may not be ground for decreeing the suit. The court has to satisfy itself before grant of decree of divorce, even if respondent does not appear to contest it. The

petitioner has to prove the case to bring it within the four corners of the law, which permits dissolution of marriage.

3. In support of his contention, learned counsel for the appellant placed reliance on the principles of law as laid down in the cases of Shantilal Gulabchand Mutha vs. Tata Engineering and Locomotive Company Limited and another (2013) 4SCC 396 and Maya Devi vs. Lalta Prasad (2015) 5SCC 588.

4. In the case of Shantilal Gulabchand Mutha (supra) the Hon’ble Court inter alia held that the relief under Order VIII Rule 10 CPC is discretionary, and court has to be more cautious while exercising such power where the defendant fails to file the written statement. Hon’ble Court observed, as hereunder:-

“ 9 In view of the above, it appears to be settled legal proposition that the relief under Order 8 Rule 10 CPC is discretionary, and court has to be more cautious while exercising such power where the defendant fails to file the written statement. Even in such circumstances, the court must be satisfied that there is no fact which needs to be proved in spite of deemed admission by the defendant, and the court must give reasons for passing such judgment, however, short it be, but by reading the judgment, party must understand what were the facts and circumstances on the basis of which the court must proceed, and under what reasoning the suit has been decree”.

5. In the case of Maya Devi (supra) the Hon’ble Court inter alia held as hereunder:-

“41. The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the Plaintiff’s claim; nay, this feature of the litigation casts greater responsibility and onerous obligation on the trial court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the Plaintif ”. ………

6. On the other hand, learned counsel for the respondent would argue, that the arguments which are raised today by the

learned counsel for the appellant, had already been raised, when the appeal was heard. There is no ground for review.

7. The instant review is filed on the grounds as stated, hereinabove, and what is argued is that there is an error apparent on the face of record because the law in the correct perspective has not been appreciated. The grounds which have been raised by the learned Senior Counsel for the appellant has an inherent intent to assail the correctness of the judgment, on the ground of wrong appreciation of law. It is not ground for review; it is not an error apparent on the face of record. Hence, there is no ground for review and the review application deserves to be dismissed.

8. The review application is dismissed.

Nahid/Pant

(Ravindra Maithani, J.) (Alok Singh, J.) 23.09.2019