Judgment:
Kramajit Sen, J.
1. This Revision is directed against the Order dated 10.5.2003 passed in Suit No.47/2000 by the Civil Judge, Delhi, dismissing an application under Section 151 of Code of Civil Procedure filed by Defendant No.2 Shri J.S.Chadha. The application has been filed in a Suit for Permanent Injunction on the grounds that the Plaintiff had concealed material facts, in that no reference had been made of a Suit previously instituted by the Plaintiff for the passing of Declaration to the effect that the divorce decree obtained in the United States of America by Defendant No.1, daughter of Defendant No.2 and wife of the Plaintiff, is a nullity. Secondly, it has been contended in this application that service of summons/notice of the Suit on Defendant No.1 through her father, and duly constituted attorney Defendant No.2, namely, Shri J.S. Chadha, was also the product of an act of concealment inasmuch as the Plaintiff was well aware that Defendant No.1 was residing in the United States of America. The prayer in the application reads thus:
'In view of the submission made above this hon.court be pleased to allowed the application and reject the plaint of the plaintiff having no cause of action against the replying defendants no 2 and 3 or in the alternative dismiss the plaint of the plaintiff against the defendant no.2. Such other or further orders as this hon.court deem fit and proper may also be passed in favor of the replying defendant and against the plaintiff.'
2. Reliance has been placed by learned counsel for the Petitioner on the observations of the Apex Court contained in S.P. Chengalvaraya Naidu (Dead) by Lrs. Versus Jagannath (Dead) by Lrs & Ors. : AIR1994SC853 to the effect that a person whose case is based on falsehoods has no right to approach the Court; he can summarily be thrown out at any stage of the litigation.
3. So far as service of Defendant No.1 is concerned, the Plaintiff/Respondent has relied on the existence of a duly registered General Power of Attorney executed by her in favor of her father Defendant No.2, namely, Shri J.S. Chadha. One of the clauses of the General Power of Attorney reads thus:
'(1) To appear and conduct the court proceedings or cases where-ever it is pending in the court of law, either filed by me or to be filed in my name or filed against me or to be filed against me.'
It is not in dispute that Defendant No.2 has been defending all litigation on behalf of his daughter Defendant No.1. It is also not controverter that an application under Section 24 of the HMA Act has been filed by Defendant No.2 on behalf of Defendant No.1.
4. So far as service of summons of a Suit is concerned, it will be evident from a perusal of Order V of the Code of Civil Procedure that the primary object is to ensure that the Defendant receives notice in actuality. Courts are at pains to order fresh service where there is a possibility that the Defendant may not be aware of the proceedings even though the records speak otherwise. Rule 9 contemplates that where the Defendant resides within the jurisdiction of the Court, the service can be effected either on the Defendant directly or on an agent resident within that jurisdiction who is empowered to accept the service of summons. Rule 15 thereafter enunciates that where in any Suit the Defendant is absent from his residence at the time when the service of summons had sought to be effected on him at his residence and there is no likelihood on his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female who is residing with him. Care has been taken to explain in the rule itself that a servant is not a member of the family since there is every possibility that a servant may be irresponsible enough not to inform the party concerned, or that he cannot be trusted to do the needful. Admittedly Defendant No.1 cannot be served at her alleged residence in New Delhi and has been held to have been served through her father, who also enjoys the dual capacity of being her agent empower to accept service of summons on her behalf. This empowerment can be deduced from the use of the word 'or to be filed against me' contained in Clause 1 of the General Power of Attorney. If this were not so, there would be no occasion or reason to empower the agent to appear and conduct Court proceedings which were anticipated to be filed in the future. It is true that there is no specific empowerment to the father to accept service of summons but I find that no other meaning can be attributed to the words mentioned above. In the circumstances of the litigation where the father is already representing Defendant No.1 in the previously instituted Suit, and has also filed an application for maintenance on her behalf, there cannot be an iota of doubt that Defendant No.1 is fully aware of the proceedings. Substantive justice cannot be held captive by procedural formalities.
5. Learned counsel for the Revisionist/Defendant No.2 has laid great store on the proceedings filed by the Respondent/Plaintiff in the Suit for Declaration, where the present Defendant No.1, who is the sole Defendant was similarly stated to be the resident of Janak Puri, Delhi. It appears that after the filing of a Petition by the Husband/Plaintiff under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, proceedings were initiated in the United States of America for annulment of the marriage. It is averred in the Suit that neither of the spouses resided within the jurisdiction of the Texas Court, nor did the marriage take place in Texas or in the USA. The Civil Judge hearing the Suit for Declaration bearing No.591/2000 had, on an application filed by the Father/Defendant No.2 herein directed the Plaintiff/Respondent to file an amended Memo of Parties mentioning the wife's address in the Texas, USA, since in the view of that Civil Judge the Plaintiff/Respondent was aware of that address through the matrimonial proceedings filed in Texas, USA by Defendant No.1. It is contended on behalf of the Defendant No.2/Revisionist that the present Civil Judge was bound to follow the same procedure. I find no justification or merit in the submission. Both Judges are in the same juridical hierarchy. Every Judge is invested with the discretion to conduct proceedings in a manner which in his opinion will ensure speedy justice. It is also trite to state that as against the wide powers possessed by an Appellate Court, the only role of the Revisionist is to bring to the notice of the High Court of an Order which allegedly manifests an error in the exercise of jurisdiction. Thereafter, the Revisionist does not have a right to be heard any further. In the course of the present proceedings, disparate and divergent approaches of two Civil Judges has been brought to the notice of this Court. Since I am of the opinion that the Revision Court ought not to supplant or substitute the reasoning of the Court below with the one preferred by it, I shall refrain from making any observations in respect of Orders passed in Suit No.591/2000 (Suit for Declaration). The fact remains that it is not the case of the Revisionist that he has no means to inform his daughter (Defendant No.1) of the filing of the case. Glossing over the fact that the Father has been representing his daughter/Defendant No.1 in all proceedings is certain to cause a miscarriage of justice. Added to these considerations is the significant fact that the father is the duly constituted Attorney of Defendant No.1. So far as service is concerned, I find no error in the manner in which the Trial Court has exercised jurisdiction.
6. It is next contended that there has been a material suppression of facts and that this factor alone warrants the dismissal of the Suit for Injunction. My attention has been drawn by learned counsel for the Plaintiff/Respondent to paragraph 13 of the Plaint which reads as follows:
'that the defendant no.2 & 3 could not succeed in their evil design to get rid of the plaintiff or to make him succumb to their desire in getting the marriage annulled. Defendant no.2 and 3 shifted defendant no.1 to United States of America in pursuance of evil desire somehow to bring the marriage between the parties to an end, which fact as well as has been challenged by the plaintiff.'
It is contended and not without merit that the underlined words contain sufficient reference to the previously instituted Suit. It should be borne in mind that proceedings are at their initial stages and to reject a Plaint in the face of such pleadings would result in a miscarriage of justice. Courts of law have repeatedly frowned on the practice of filing applications which have the consequence of not allowing the Suit to progress. If a frivolous Suit is brought, it can always be dismissed with exemplary costs. Accordingly, it would not be in the interest of justice to snuff out a case hurriedly and precipitately.
7. Learned counsel for the Petitioner has relied on Saleem Bhai & Ors. Versus State of Maharashtra & Ors. 2002 10 AD (S.C.) 537 wherein it has been opined that Order VII Rule 11 CPC makes it clear that only the averments in the Plaint are to be looked at for the purposes of an application filed under those provisions. The Hon'ble Supreme Court held that it was not open to the Court to defer on the disposal of the application by insisting on the filing of a Written Statement. In the case in hand, no doubt the Trial Court has ordered the filing of a Written Statement disclosing the Defendants' version. It has, however, specifically dismissed the application. Perhaps it would have been wiser for the Trial Court to explain that it did not find sufficient reason to reject the Plaint merely on the basis of averments contained in it. I prefer to read this into the impugned Order, since this is obviously what has transpired. Furthermore, I am also of the view that the arguments which have now been put before me are on tangent to those which were raised before the Trial Court on the basis of the application under Section 151 of the CPC. The prayer has already been reproduced above. Primarily, it indicates that the Applicant/Defendant No.2, sought the rejection of the Plaint for the alleged reason that no cause of action had been disclosed against him. This is abundantly clear from the fact that a similar relief has also been prayed in respect of Defendant No.3. Significantly, no such relief has been prayed for in respect of Defendant No.1. Even before me, it has not been stated that the wife/Defendant No.1 is a permanent resident of the United States of America at the material time. This is certainly not deducible from the averments contained in the Plaint. There was no reason whatsoever for the Trial Court to come to the conclusion at the incipient stage of the litigation that the Defendant is not a resident of Janak Puri, New Delhi.
8. The Petition is wholly without merit as it does not disclose any error in the exercise of jurisdiction by the Trial Court. The grounds on which the impugned Order has been attacked are technical and procedural in nature and do not disclose that a miscarriage of justice has taken place. On the contrary, if the arguments of the Revisionists are accepted the only consequence would be an inordinate delay in the disposal of the suit and avoidable expense to the Petitioner, since the Defendants' case is that Defendant No.1 is now residing in the USA, where no part of the cause of action appears to have arisen. The matter had been argued at considerable length. The Revision is dismissed with costs of Rs.15,000/-.
9. Trial Court record be sent back immediately
10. Copy of this Judgment be given dusty to learned counsel for the parties.