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Civil Rule No. 941 of 1968, decided on 12th August 1968.

‑Revision Relief in‑Discretionary.

In the instant case a husband sued his wife (the petitioner) for restitution of conjugal rights. The wife prayed for stay of suit on the plea that she had applied to Union Council Conciliation Court under section 8, Muslim Family Laws Ordinance, 1961 for dissolution of marriage. The trial Court rejected the stay applica tion but she did not go in revision against such order.

The petitioner subsequently applied to the trial Court stating that her marriage had been dissolved by Conciliation Court and prayed for framing an additional issue namely "does the marriage still subsist" and if not "whether the suit should proceed" and also prayed for deciding this additional issue before taking up any other issue. The trial Court allowed the application partly for framing such additional issue but rejected the prayer for deciding the same first before taking up other issues. The petitioner moved the High Court in revision under section 115, C. P. C. on the plea that the additional issue of whether the marriage subsisted between the parties was an issue of law and went to the root of the whole case

the petitioner actually missed the bus by not moving against the order rejecting stay application and had no alternative except trying to exploit the provisions of Order XIV, rule 2 of the C. P. C. Relief in revision is after all discretionary and in the circumstances disclosed, the Court was not called upon to interfere.

A. M. Fazlul Wahab for Petitioner.

Moinul Huq for the Opposite‑Party No. 1.

Dates of hearing : 7th and 8th August 1968.

.‑This revision is directed against the order of the Subordinate Judge, 1st Court, Dacca dated the 6th June 1968, in Title Suit No. 215 of 1967 rejecting the petitioner's application for deciding a particular additional issue which was claimed to be of law before taking up the issues as framed already in the said suit. The relevant circumstances may be stated as under: On 21‑7‑67 the petitioner filed before the Chairman, Bhadura Union Council Conciliation Court, P. S. Ramganj, Noakhali, an application under section 8 of the Muslim Family Laws Ordnance of 1961 for dissolution of her marriage with opposite‑party No. 1. The said application was registered and notice of the same was issued on opposite‑party No. 1 who on receiving the same on 27‑7‑67 started a false criminal case against the petitioner alleging theft of a large number of ornaments and clothes and got a warrant of arrest and a warrant for search of the house of the petitioner's maternal-grandfather.

Subsequently police gave final report in the said case. Thereafter on 3‑8‑68 opposite‑party No. 1 instituted the present Title Suit No. 215 of 1967 in the 1st Court of the Subordinate Judge, Dacca for restitution of conjugal rights over the petitioner and impleaded opposite‑parties Nos. 2 to 6 as defendants with a prayer for permanent injunction restraining them from interfering with the peaceful enjoyment of the plaintiff's conjugal right by obstructing the defendant petitioner from returning to the plaintiffs domain.

On 9‑8‑68 he applied to the said Bhadura Union Council Conciliation Court for time which was granted and 18‑9‑67 was fixed for hearing of the petitioner's application under section 8 of the Muslim Family Laws Ordinance, 1961.

Instead of appearing before the said Conciliation Court on that day, opposite‑party No. 1 filed a revisional application in the Court of Subordinate Judge, Noakhali for staying the proceedings in the said case in the Bhadura Union Council Conciliation Court and the said revision was rejected on contest on 27‑1‑68.

On 26‑12‑1967 the petitioner filed written statement in Title Suit No. 215 of 1967 and on 10‑4‑68 the Union Council Concilia tion Court passed an order dissolving the petitioner's marriage with opposite‑party No. 1 and on 1‑5‑68 the petitioner filed a certified copy of the said order of dissolution of marriage in Title Suit No. 215 of 1967 along with an application praying for disposal of the said suit on the basis of the said order.

On the 6th of June 1968, which was the date of hearing, the petitioner filed an application before the learned Subordinate Judge for framing an additional issue to the effect that "does the marriage between the plaintiff and defendant No. 1 still subsist If not, whether the present suit for restitution of conjugal rights should proceed " and made a prayer for deciding this additional issue first before taking up any other issue.

On the same date the learned Subordinate Judge after, hearing the parties passed an order allowing the petitioner's said application in part and framed the additional issue to the above effect but rejected the petitioner's prayer for deciding the same first before taking up other issues.

The view of the petitioner was that if the aforesaid decision of the Bhadura Union Council Conciliation Court dissolving the petitioner's marriage was taken up first and decided, the: suit would be concluded and she would be spared the cost and harassment of fighting other issues.

Mr. Fazlul Wahab, learned Advocate appearing in support of the rule has urged ground No. 2 of the petition which is as under:‑

"(ii) for that the learned Subordinate Judge acted illegally and with material irregularity in exercising his jurisdiction in rejecting the petitioner's prayer for taking up and deciding the additional issue first without considering that the decision of the additional issue in favour ‑of the petitioner would have totally concluded the suit and spared her of the cost and harassment of fighting other issues."

Before considering the force of the above contention, it is necessary to quote the short order as impugned before us. It runs

"19. 19‑6‑68.‑Both parties file hazira. The suit is taken up for hearing. At this stage defendant No. 1 files a petition for framing the issue. Does the marriage between the plaintiff' and defendant No. 1 still subsist. If not, whether the present suit for restitution of conjugal right should proceed and for deciding the same first before taking up any other issues. Heard, the prayer for additional issue is allowed and the same is added. As for disposing of that issue first the prayer is rejected. It is proposed that all the issues will be decided in the judgment after hearing the full evidence (V. O. P.).

20. Later. Plaintiff ready. Defendant No. 1 files a petition for adjournment of bearing of the suit today, so that the defendant No. 1 may take the matter to the Hon'ble High Court for decision. Heard both the sides. Prayer allowed in view of the defendants' intention to move the Hon'ble High Court but as the defendant did not take the step earlier, she is responsible for the adjournment and must pay the cost which is Rs. 60. O. P. to 18‑7‑68 for P. H."

This shows that the learned Subordinate Judge, partially accepted the prayer of the petitioner by adding the new issue as an additional issue although he refused to decide it first.

Mr. Wahab has argued that the additional issue as to whether the marriage subsisted between the parties was an issue of law and that it was an issue that went to the root of the whole case. According to him, if the learned Judge decided that issue first, the petitioner could be saved from unnecessary harassment. And that the learned Judge was bound to decide that issue first under Order XIV, rule 12 of the Code of Civil Procedure.

He has also argued that the learned Judge has not given any reason for the course taken by him.

The learned Subordinate Judge would have done better if be had expressed some opinion before taking the course he has taken and the contention in on this score is not altogether without substance.

But examining the whole records of the case we do not feel inclined to interfere in this revision for the reason that on 15‑4‑68 the petitioner applied to the Court for stay of the suit and failing therein the petitioner did not move in revision though a revision lay therefrom. That order of 15‑4‑68 is in these terms:‑

"13. 15‑4‑68‑Defendant 1 (wife) prays for stay of the order under Order X, C. P. C. on the ground that she has already applied under the Family Laws Ordinance and hence the suit by the husband for restitution of conjugal right should be stayed. The application is opposed by the plaintiff (husband).

It is to be noticed that under section 8 read with section 7 of the Family Laws Ordinance there cannot be any decision in an application under that section. The Chairman is to constitute an Arbitration Council which will take all steps necessary to bring about a reconciliation. Hence it cannot be said that the issues that are framed in the suit are also the subject‑matter of trial in the proceeding under Family Laws Ordinance. Besides it is clear that the plaintiff is not going to submit to the Arbitration and here no purpose can be served by staying this suit. The Arbitration Council under the Family Laws Ordinance cannot in that sense be called a Court and I therefore hold that section 10, C. P. C. has no applicability to this case. Hence the petition for stay under section 10 of the C. P. C. is rejected. "

This shows that the learned Judge already gave some consideration to the point and having so considered that point once before, the Judge thought it fit to classify the additional issue with the other issues as already framed.

The force of the application under Family Laws Ordinance was considered by the learned Judge and he came to the finding that it was not a Court for the purpose of section 10 of the Code of Civil Procedure.

Moreover, Mr. Moinul Huq, learned Advocate appearing for the opposite‑party has argued not altogether without force that the Arbitration Council was not competent to grant dissolution.

The petitioner actually missed the bus by not moving against this order of 15‑0‑68 and had no other alternative except trying to exploit the provisions of Order XIV, rule 2 of the Code of Civil Procedure.

Relief in revision is after all discretionary and in the circumstances disclosed we do not feel called upon to interfere.

The rule is, therefore, discharged, but without any orders as to costs.

Let the records be sent down expeditiously.

.‑I agree.

A. E.

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