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REPORTABLE     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO(S).9453 OF 2019 (Arising from SLP(C)No. 18971/2019)

ASHI KUMAR                               APPELLANT(S)

                               VERSUS

ASEEM AGARWAL                         RESPONDENT(S)

O R D E R

1. Leave granted.

2. This  appeal  takes  exception  to  the

judgment and order dated 15.07.2019 passed by the

High  Court  of  Delhi  at  New  Delhi  in  C.M.(M)

No.1019  of  2019,  whereby  the  High  Court

entertained  the  writ  petition  filed  by  the

respondent  herein,  Assem  Agarwal,  under  Article

227 of the Constitution of India challenging the

order dated 01.12.2018 passed by the Family Court,

Patiala House in H.M.A. No.33 of 2012 directing

the respondent to produce the subject documents.

3. The High Court by the impugned order not

only entertained the writ petition but stayed the

trial before the Family Court, which is pending

since 2011 (renumbered in 2012).

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4. The necessity of producing the documents by

the  respondent  relates  back  to  Order  dated

28.01.2014 passed by the Family Court, which reads

thus:

“28/1/2014

Pr: Petitioner in person alongwith her     father and Sh.N.K. Srivastava.  

SPA Ms. Reena Jain for the respondent is also advocate for respondent.

Petitioner  wants  to  file  formal response to affidavit as referred in order dated 6/12/2013. On communication from the respondent  along  with  the  attested affidavit in original (copy already filed) has been filed by the Ld. SPA.

Adjourned  for  filing  of  response  by the  petitioner  and  for  production  of remaining  original  documents,  if  any  and admission/denial of documents on 12/3/2014. Let the  attested copy of divorce petition and  the  judgment  and  decree  passed  by Family Court at Auckland in New Zealand be filed by the respondent and advance copy be given to the other side.”

(emphasis supplied in italics)

5. It is not in dispute that this order has

been allowed to become final by the respondent. As

a matter of fact, the respondent partly complied

with  this  direction  by  only  producing  decree

passed  by  the  Family  Court  at  Aukland  in  New

Zealand and not the judgment and divorce petition.

Resultantly, the appellant moved the Family Court

for  issuing  necessary  directions  to  the

respondent, which application was allowed by the

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Family Court vide order dated 01.12.2018.

6. Indisputably,  directions  were  issued  to

the  respondent  to  produce  the  stated  documents

which,  however,  remained  uncomplied  till

19.03.2019. On 29.03.2019 the respondent through

counsel gave undertaking to the Family Court that

he would file the documents on the next date of

hearing. When the matter was again taken up on

03.04.2019, the Family Court was informed that the

documents are in transit. Even on 21.05.2019, the

respondent  gave  impression  to  the  Family  court

that the documents were still in transit.

7. Instead  of  complying  with  the

undertaking,  the  respondent  chose  to  file  writ

petition to challenge the order dated 01.12.2018,

which, as aforesaid, has been entertained by the

High Court being oblivious of the fact that the

respondent had given a solemn undertaking to the

Family Court to produce the documents, through his

counsel.

8. Counsel for the appellant contends that

the undertaking to the Family Court was given not

only by the counsel appearing for the respondent

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but also by his Power of Attorney. The respondent,

however,  disputes  the  correctness  of  this

submission. We are not required to go into this

controversy.

9. Suffice it to note that the High Court

was  impressed  by  the  specious  argument  of  the

respondent  that  the  documents  insisted  upon  are

not relevant to decide the controversy in issue.

On that basis, the High Court proceeded to stay

the trial.  

10. In  our  opinion,  the  respondent  having

given  undertaking  to  the  Family  Court  through

counsel and/or Power of Attorney, as the case may

be, was obliged to comply with the same unless

absolved  therefrom  by  the  Family  Court.   The

question  of  entertaining  writ  petition  despite

such  undertaking  to  the  Family  Court  cannot  be

countenanced.  If the respondent is not relieved

of the undertaking by the Family Court, he must

take the consequences of the order passed by the

Family  Court  directing  production  of  the  said

documents.  We  are  of  the  opinion  that  if  this

position was brought to the notice of the High

Court  on  15.07.2019,  perhaps  the  writ  petition

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would not have been entertained by the High Court.

11. The  counsel  for  the  respondent  submits

that this argument was advanced before the High

Court. If so, the High Court ought to have taken

note of the same in the impugned judgment, which

is conspicuously absent. Even for that reason, the

impugned judgment cannot be sustained.

12. In view of the above, we set aside the

impugned order as also dismiss the writ petition

filed  by  the  respondent  before  the  High  Court

being  C.M.(M)  No.1019/2019,  but  give  liberty  to

the respondent to approach the Family Court by way

of  appropriate  application  including  to  absolve

the respondent from the undertaking given on his

behalf  or  in  the  alternative  to  produce  the

documents referred to in the order of the Family

Court dated 01.12.2018, as may be advised. If such

application is filed, the same be considered by

the Family Court on its own merits in accordance

with  law.  If  the  respondent  needs  some  more

reasonable  time  to  produce  the  document  in

question even that application can be made before

the  Family  Court  which  be  considered

appropriately.

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13. We further make it clear that it will be

open  to  the  Family  Court  to  proceed  with  the

proceedings  pending  before  it  on  the  basis  of

record/evidence to be produced by the parties.

14. Needless  to  observe  that  production  of

the stated documents by the respondent will not

come in his way to contend that the same are not

relevant  for  deciding  the  matter  pending  before

the  Family  Court.  That  contention  can  be

considered on its own merits by the Family Court

in accordance with law.

15. The appeal and pending applications are

accordingly disposed of in the above terms.

..................,J.        (A.M. KHANWILKAR)

..................,J.    (DINESH MAHESHWARI)

 NEW DELHI DECEMBER 16, 2019.

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ITEM NO.48               COURT NO.7               SECTION XIV

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)  No(s).  18971/2019

(Arising out of impugned final judgment and order dated  15-07-2019 in CMM No. 1019/2019 passed by the High Court Of Delhi At New  Delhi)

ASHI KUMAR                                         Petitioner(s)

                               VERSUS

ASEEM AGARWAL                                      Respondent(s)

(FOR ADMISSION and I.R. )   Date : 16-12-2019 This petition was called on for hearing today.

CORAM :           HON'BLE MR. JUSTICE A.M. KHANWILKAR          HON'BLE MR. JUSTICE DINESH MAHESHWARI

For Petitioner(s) Mr. Prabhjit Jauhar, Adv. Ms. Aishwarya, Adv.

                   For Mr. S. S. Jauhar, AOR                     For Respondent(s) Ms. Geeta Luthra, Sr. Adv.

Ms. Reema Jain Malhotra, Adv.                     Mr. Chandan Kumar, AOR

Ms. Asmita Narula, Adv.                     

       UPON hearing the counsel the Court made the following                              O R D E R

Leave granted.

The  appeal  and  pending  applications  are

disposed of in terms of the signed order.

(NEETU KHAJURIA) COURT MASTER

(VIDYA NEGI) COURT MASTER

(Signed order is placed on the file.)