THE HON’ BLE SRI JUSTICE NAGESH BHEEMAPAKA Civil Miscellaneous Appeal No.608 of 2024

JUDGMENT:

The plaintiff-wife filed the Suit i.e., O.S.No.3 of 2024 before the Court of Principal Family Judge, City Civil Court, at Hyderabad, for granting temporary anti-Suit injunction against the defendant-husband, restraining the defendant from proceeding and further participating in the proceedings in Case No.24-104453-DO on the file of Hon’ble Circuit Court for the County of Wayne, Family Division, State of Michigan, United States of America, and restraining the defendant from filing any other Suit or Petition in any other State in USA and country/countries.

In the said Suit, the plaintiff filed I.A.No.666 of 2024, under Order 39 Rules 1 and 2 of Code of Civil Procedure (CPC), read with Section 151 of the CPC, praying the Court to restrain the defendant from initiating any other or further action or proceedings of filing any Suit or Claims against the plaintiff in any Court in any Country outside India with regard to the matrimonial disputes between the plaintiff and defendant. The said I.A.No.666 of 2024 was allowed by granting temporary injunction in favour of the plaintiff, and against the defendant, thereby restraining the defendant from initiating any further action in any suit or claim against the plaintiff in any Court/Tribunal/Forum in any other Country outside India with regard to matrimonial disputes between them. Aggrieved thereby, the defendant filed this appeal.

2. Heard Mr. Sriharshitha Chada, learned counsel for the defendant/appellant; and Mr. T.L. Nayan Kumar, learned counsel for the plaintiff/respondent. Perused the record.

3. Learned counsel for the appellant (defendant) contends thatthe parties are residing at USA and therefore the Court at County of Wayne is the forum conveniens; that most of the assets related to the parties are in the Court in the USA and therefore no prejudice would have been caused if injunction was refused; that the plaintiff, by filing reply in the proceedings before the Court at USA, submitted herself to the jurisdiction of foreign Court; that the plaintiff even sought leave to appeal before the Court of Appeal and therefore she suppressed the fact; that on receiving summons from the II Additional Family Court at Hyderabad, the defendant (through his Advocate) filed vakalat followed by NOC vakalat on 26.10.2024, but the same were returned on the ground that the vakalat has not been filed along with the petition under Section 13 (amicus curiae) of Family Courts Act, 1984; that the defendant filed the petition under Section 13, duly notarized, on 02.11.2024, however, the Court proceeded to pass ex parte order; that on 02.11.2024 when the defendant filed the petition under Order 9 Rule 7 of CPC read with Section 151 CPC, along with Petition under Section 151 CPC for Re-open along with List of Documents in IA No.666 of 2024, the Court has returned the same on certain grounds and passed the impugned order setting the defendant/appellant ex parte; that the ex parte orders are generally not to be passed unless there is demonstrable failure by a party to appear or cooperate despite adequate opportunity; that the plaintiff is not under the Family Courts Act, 1984 and therefore the petition under Section 13 of the Family Courts Act, which is about representation by an Advocate with prior permission of the Court, was not needed; that procedural technicalities should not override substantial justice; that both the parties have submitted to the jurisdiction of the Court at County of Wayne, Family Division, State of Michigan, and therefore parallel jurisdiction by the II Additional Family Court at Hyderabad, would go against the principles of comity of Courts; therefore the impugned order is liable to be set aside. Learned counsel relies on the judgment of the Hon’ble Supreme Court in Modi Entertainment Network vs. W.S.G. Cricket PTE Ltd, (2003) 4 SCC 341; and Hari Vishnu vs. Ahmad Ishaque, (AIR 1955 SC 233)

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