# Liaqat Hussain v. Smt. Jainab Parveen

- **Citation:** (2021) 8 ILRA 9
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-04
- **Case number:** First Appeal No. 119 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/liaqat-hussain-v-smt-jainab-parveen-47329
- **Pages:** 3

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Order XII Rule 6 - Family dispute
- Restitution of Conjugal Right - Wife's
admission of her willingness to cohabit
with
plaintiff-husband
-
Effect
of
admission - Held, finding of trial court is
perverse and against the evidence on
record - Suit should have been decreed on
the basis of admission of the defendantrespondent. (Para 10 and 12)
Appeal allowed. (E-1)

## Text

8 All. Liaqat Hussain Vs. Smt. Jainab Parveen
9
urged on behalf of the appellant was only a
"legal plea" though no specific plea was
taken or no precise issues were framed in
that behalf. The High Court failed to bear
in mind that it is not every question of law
that could be permitted to be raised in
second appeal. The parameters within
which a new legal plea could be permitted
to be raised, are specifically stated in subsection (5) of Section 100 CPC. Under the
proviso, the Court should be "satisfied"
that the case involves a "substantial
question of law" and not a mere "question
of law". The reason for permitting the
substantial question of law to be raised,
should be "recorded" by the Court. It is
implicit therefrom, that on compliance of
the above, the opposite party should be
afforded a fair or proper opportunity to
meet the same."

29. Upon consideration of the
aforesaid factors, it is apparent that the
judgment and order of the first appellate
court reversing the findings of fact
recorded by the trial court is based on the
material evidence on record and after
discussing the findings recorded by the trial
court. As such in the considered opinion of
this Court, there is no substantial question
of law involved which may require
admission of the second appeal.

30. Consequently the second appeal
being devoid of merits is dismissed
upholding the judgment & decree dated
16th February, 2015 passed in First Appeal
No. 136 of 2003. Parties shall bear their
own costs.
----------
(2021)08ILR A9
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2021

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

First Appeal No. 119 of 2021

Liaqat Hussain ...Appellant
Versus
Smt. Jainab Parveen ...Respondent

Counsel for the Appellant:
Sri Arun K. Singh Deshwal, Sri Anil Kumar
Dubey

Counsel for the Respondent:

A. Civil Law - Code of Civil Procedure,
1908 - Order XII Rule 6 - Family dispute
- Restitution of Conjugal Right - Wife's
admission of her willingness to cohabit
with
plaintiff-husband
-
Effect
of
admission - Held, finding of trial court is
perverse and against the evidence on
record - Suit should have been decreed on
the basis of admission of the defendantrespondent. (Para 10 and 12)
Appeal allowed. (E-1)
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Subhash
Chand, J.)

1. Heard Sri Arun K. Singh Deshwal,
learned counsel for appellant.

2. Despite service of notice on
respondent no.2 none has put in appearance
on her behalf.

3. On the basis of submissions of
learned counsel for appellant and the
admission of defendant-respondent in her
written statement filed before the court
below, we proceed to decide this appeal at
the admission stage even in absence of
counsel for respondent.
10 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The instant appeal has been filed
against the judgment and order dated
23.10.2020 passed by Principal Judge,
Family Court, District Amroha in Original
Suit No. 623 of 2017 (Liaqat Hussain Vs.
Smt. Jainab Parveen), whereby the suit of
the plaintiff-appellant for restitution of
conjugal rights has been dismissed.

5. The plaintiff-appellant Liaqat
Hussain had filed a suit for restitution of
conjugal rights against the defendantrespondent Smt. Jainab Parveen with the
allegations that she had been residing
separately without any reasonable cause
and had been depriving of his conjugal
relations.

6. The defendant-respondent Smt.
Jainab Parveen filed her written statement
with the defence that she was subjected to
physical and mental cruelty and had fear of
life.

7. The learned trial Judge after having
framed three issues dismissed the suit of
the plaintiff.

8. Learned counsel for appellant has
contended that there is sufficient evidence
on record and admission of respondent
herself that she was willing cohabit with
plaintiff and despite the admission of the
respondent the learned trial Judge had
dismissed the suit of plaintiff.

9. Learned counsel for plaintiff also
relied upon the statement of D.w.1 Jainab
Parveen.
The
defendant-respondent
although in her examination-in-chief has
stated that she was subjected to physical
and mental cruelty at the matrimonial
house yet in her cross-examination she has
categorically stated that after "NIKAH" up
to 2016 she had been residing with
plaintiff-appellant and she is willing to pass
her
remaining
matrimonial
life
with
appellant-Liaqat.

10. The learned trial Judge has
dismissed the suit despite the admission of
the defendant-respondent, which is based
on perverse finding and against the
evidence on record.

11. There is specific provision in
Civil Procedure Code wherein Order XII
Rule 6 is relevant, which is extracted
below:

"6. Judgment on Admissions :-
(1)Where admissions of fact have been
made either in the pleading or otherwise,
whether orally or in writing, the Court may
at any stage of the suit, either on the
application of any party or of its own
motion and without waiting for the
determination
of
any
other
question
between the parties, make such order or
give such judgment as it may think fit,
having regard to such admissions.

(2) whenever a judgment is
pronounced under sub-rule (1) a decree
shall be drawn up in accordance with the
judgment and the decree shall bear the date
on which the judgment was pronounced."

12. As such the suit of plaintiff should
have been decreed on the basis of
admission of the defendant-respondent.
Consequently, the impugned judgment of
the trial court needs interference by this
Court.

13. Accordingly, the appeal is
allowed. The judgment and order dated
23.10.2020 passed by Principal Judge,
Family Court, District Amroha in Original
Suit No. 623 of 2017 (Liaqat Hussain Vs.
Smt. Jainab Parveen) is set aside and
8 All. Prahlad & Ors. Vs. Smt. Hameedan & Anr.
11
quashed. The Original Suit No. 623 of 2017
(Liaqat Hussain Vs. Smt. Jainab Parveen)
is decreed.
----------
(2021)08ILR A11
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2021

BEFORE

THE HON'BLE VIVEK VARMA, J.

Second Appeal No. 211 of 2021

Prahlad & Ors. ...Appellants
Versus
Smt. Hameedan & Anr. ...Respondents

Counsel for the Appellants:
Sri Kshitij Shailendra

Counsel for the Respondents:
Sri Anay Kumar Srivastava

A. Civil Law - Code of Civil Procedure,
1908 - Section 100 - Order XLI R. 31 -
Second Appeal - Substantial question of
law - Point of Determination - Failure of
first appellate court to frame it - Effect -
Held, first appellate court being final court
of fact must not record mere general
expression of concurrence with the trial
court judgment, rather it must give
reasons for its decision on each point
independently to that of the trial Court -
Entire evidence must be considered and
discussed in total. Such exercise should be
done after formulating the points for
determination in terms of the provisions
contained under Order 41 Rule 31 C.P.C.
and the Court must proceed in adherence
to the requirements of the statutory
provisions
-
High
Court
found
the
substantial question of law involved in the
appeal - Matter remitted to the First
Appellate Court for fresh consideration.
(Para 11, 16 and 17)
Appeal allowed. (E-1)
Cases relied on :-
1. Laliteshwar Prasad Singh & ors. Vs S.P.
Srivastava (Dead) through L.Rs., (2017) 2 SCC
415
(Delivered by Hon'ble Vivek Varma, J.)

1. Heard Sri Kshitij Shailendra,
learned counsel for the appellants, and Sri
Anay Kumar Srivastava, learned counsel
for the caveator- respondent. With the
consent of learned counsel appearing for
the parties, the present appeal is being
decided at this stage itself in terms of the
Rules of the Court.

2. The present second appeal has been
filed challenging the judgment, order and
decree dated 21.11.2020 passed by the
Additional District & Sessions Judge/
Special Judge (SC/ST Act), Baghpat in
Civil Appeal No. 6 of 2019 (Prahlad and
others v. Smt. Hameedan and others), and
the judgment, order and decree dated
03.12.2018 passed by the Civil Judge,
Junior Division-Ist, Baghpat in Original
Suit No. 143 of 2005 (Smt. Hameedan and
another v. Prahlad and others).

3. The plaintiff-respondent no. 1
instituted a civil suit for permanent
prohibitory
injunction
against
the
defendants-appellants. The case of the
plaintiff-respondent was that the land in
dispute had been allotted to her by Gaon
Sabha on 12.06.1969, over which she had
constructed a Gher and that, the defendants,
having no concern with the property, were
causing interference in her possession.

4. The trial Court vide judgment and
order dated 03.12.2018 decreed the suit
against which the defendants filed a civil
appeal, being Civil Appeal No. 6 of 2019,
which was dismissed by the lower appellate