C.R. No. 1832 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 1832 of 2008 Date of Decision: July 24, 2009 Beant Kaur …..Petitioner Vs. Kamaljit Singh …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. F.S. Virk, Advocate for the petitioner. Mr.Ishwar Lal, Advocate for the respondent. -.- M.M.S. BEDI, J. (ORAL) The respondent had obtained a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, (for short ‘the Act’). The marriage of the petitioner with respondent was dissolved by a decree of divorce dated December 14, 2001 passed by Sh.A.K. Mehta, Additional District Judge, Ludhiana, under Section 13-B of the Act. C.R. No. 1832 of 2008 [2] Subsequently the petitioner filed a suit for declaration that the judgment and decree dated December 14, 2001 had been obtained by playing fraud upon her as her signatures had been obtained on the pretext that the respondent- husband would be able to go abroad and earn more money. The respondent filed an application under Order 7 Rule 11 CPC for rejection of the plaint stating therein that the suit is not maintainable and the judgment and decree dated December 14, 2001 had been passed after recording of the statement of both the parties before the Court of competent jurisdiction. The Civil Judge (Junior Division), Ludhiana, vide order dated October 22, 2007 allowed the application of the respondent observing that the remedy is available to the petitioner for setting aside the decree of divorce by moving an application before the District Judge as per Section 19 of the Act. Counsel for the petitioner has vehemently contended that the trial Court has acted illegally in dismissing the suit of the petitioner. Reliance has been placed on the judgment of Anita Vs. R.Rambilas, 2003 (1) CCC 284 (AP), to contend that if the evidence is placed on the record by one of the parties that fraud had been played, in such event the only remedy left with the party against whom fraud is played, is to file a separate suit for setting aside the decree obtained by fraud. In the said judgment it had been observed that the factum of consent can be investigated in summary proceedings but the reality of the consent cannot be so investigated by moving an application under Section 151 CPC. C.R. No. 1832 of 2008 [3] Counsel for the respondent has contended that the petitioner- wife is remarried and she had admitted this fact in proceedings under Section 125 Cr.P.C., therefore, this petition should be dismissed. After hearing counsel for the petitioner and counsel for the respondent, I am of the opinion that the short question which is required to be determined in the present case is whether the application of the respondent- husband under Order 7 Rule 11 CPC could have been allowed to reject the plaint of the petitioner who has claimed that a fraud had been played upon her by her husband while obtaining a decreed under Section 13-B of the Act. Since fraud has been alleged in the plaint, it has to be established by the plaintiff by leading cogent evidence for which the defendant- respondent will have a fair opportunity to rebut. No doubt, an application under Section 151 CPC could have been filed by the petitioner before the District Judge for seeking the setting aside of decree under Section 13- B of the Act but the disputed question of fact can be determined only after framing of issues and permitting the parties to lead evidence. Replying upon the judgment of Anita’s case (supra), I am of the opinion that the rejection of the plaint of the petitioner exercising jurisdiction under Order 7 Rule 11 CPC in the present case is not sustainable. Order 7 Rule 11 CPC regarding the rejection of the plaint reads as follows:- “Order 7 Rule 11:- Rejection of plaint:- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; C.R. No. 1832 of 2008 [4] (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law;” I have considered the contention of counsel for the respondent that the petitioner has re-married. In case it is presumed for the sake of arguments that the petitioner has re-married, but once she has sought the setting aside of decree taking up the ground of fraud, her rights cannot be jeopardized by summarily rejecting her plaint, as has been done vide impugned order. Application of defendant- respondent does not fall in any of the conditions mentioned in Order 7 Rule 11 CPC as such the impugned order dated October 22, 2007 is hereby set aside. Parties are direction to appear before the Civil Judge (Senior Division), Ludhiana, on August 29, 2009. The Civil Judge (SD) would take up the case for further proceedings. It is observed that it will be open to the Civil Judge (Senior Division) to entrust the case for adjudication to any other Court. C.R. No. 1832 of 2008 [5] Disposed of. July 24, 2009 (M.M.S.BEDI) sanjay JUDGE