The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No. 89 of 2023 Mandakini Kar …. Petitioner Mr. Pranaya Swain, Advocate -versus- State of Odisha …. Opp. Party Mr. Debasish Biswal, ASC CORAM: JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 05.02.2024 01. 1. Heard learned counsel for the Petitioner and the State. 2. By means of this application, the Petitioner-wife seeks intervention of this Court praying for a direction to the Opp. Party- husband to properly furnish affidavit with regard to the assets and liabilities and for further direction to the learned court below to take necessary action in case of failure on the part of the Opp.Party to furnish the same and/or in case of suppression of any requirement, as directed by the Apex Court in the case of Rajnesh vs. Neha & another, (2021) 2 SCC 324. 3. The background facts of the case are that, out of the matrimonial discord between the husband and the wife, the Petitioner-wife moved a motion before the learned Judge, Family Court, Dhenkanal claiming maintenance under Section 125, Cr.P.C. The application Page 1 of 5 // 2 // was allowed ex parte in favour of the Petitioner-wife on 09.05.2023. However, the Opp.Party-husband got the said ex parte order dated 09.05.2023 set-aside and restored the original application to the files of the court. Accordingly the learned court below directed the Petitioner-wife for her appearance to face the cross-examination. However, before passing of the ex parte order dated 09.05.2023, on 13.01.2023 the learned court below also had directed the Opp.Party- husband to disclose his assets and liabilities. The Petitioner-wife had filed her assets and liabilities on 20.01.2023 when the Opp.Party- husband remained absent. 4. On 26.12.2023 the Petitioner wife filed a petition seeking intervention of the learned Judge, Family Court for a direction to the Opp.Party-husband to disclose his assets and liabilities, whereupon the learned Judge, Family Court on the very same day directed the Opp.Party-husband to submit his detail account of assets and liabilities by way of an affidavit, which the Opp.Party-husband too complied on the same day. The Petitioner-wife after receiving a copy of the said affidavit of the Opp.Party-husband submitted her objection to which the learned court allowed the Opp.Party-husband to once again counter to the said objection of the Petitioner. 5. Be that as it may, the main plank of contentions raised by the learned counsel for the Petitioner-wife emerges herein is that the learned court below passed the impugned order dated 18.01.2024 without affording an opportunity to the Petitioner on the objection raised by her to the affidavit submitted by the Opp.Party-husband on the assets and liabilities, which apparently reveals a clear Page 2 of 5 // 3 // suppression of fact, as the Opp.Party-husband did not disclose certain facts as given in the Format for declaration of the assets and liabilities. According to the learned counsel, without giving an opportunity to the Petitioner, the learned court below rejected the objection dt. 05.01.2024 filed by the Petitioner in the impugned order violating the principles laid down in the matter of Rajnesh vs. Neha & another, (2021) 2 SCC 324 as propounded by the Apex Court. Hence, the same is deserved to be interfered with by this Court. 6. An extra ordinary jurisdiction is not to be inferred readily by the Court unless there is a compelling circumstance requiring interference with the order of the courts below. The Apex Court in the Judgment dated 17th April 2023 in Civil Appeal arising out of SLP (Civil) Nos.22021-22022 of 2022 in the matter of M/S. South Indian Bank Ltd. & Others vs. Naveen Mathew Philip & Another, etc. etc. referring to the decision in the matter of Hari Vishnu Kamath vs. Syed Ahmad Ishaque, (1955) 1 SCR 1104, 7, held as under:- “The position was thus summed up by Morris, L.J. 8 “It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision, or irregularity, or absence of, or excess of, jurisdiction where shown”. In Veerappa Pillai v. Raman & Raman Ltd. [(1952) SCR 583], it was observed by this Court that under article 226 the writ should be issued “in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, Page 3 of 5 // 4 // or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record”. In T.C. Basappa v. T. Nagappa [(1955) SCR 250] the law was thus stated: “An error in the decision or determination itself may also be amenable to a writ of ‘certiorari’ but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by ‘certiorari’ but not a mere wrong decision.” 7. In the light of the principles above discussed this Court finds no such material apparent on the face of the impugned order that requires interference invoking the extra ordinary jurisdiction since Petitioner has an efficacious remedy available to ventilate its grievance. As a necessary corollary, here in this context, it is indeed correct for this Court to say that after the cross-examination of the Petitioner she would be getting an opportunity to cross-examine the Opp.Party-husband in accordance with law. The questions raised herein can very well be brought on record in course of the cross- examination of the Opp.Party-husband. This would help the learned court below to perceive if there is likelihood of a suppression of fact in the declaration of assets and liabilities and to take further course of action either by calling for necessary documents from the concerned Banks or otherwise to ensure the actual assets and liabilities of the Opp.Party-husband basing on the reply of the Opp.Party itself and irrespective of a motion to be moved by the Petitioner in calling for such documents to enable the learned court to reach a just conclusion in the case with regard to grant of maintenance. Page 4 of 5 // 5 // 8. Consequently, the anxiety shown by the Petitioner-wife seeking an intervention of this Court at this stage prematurely when the matter is yet to be adjudicated does not merit consideration to invoke the extraordinary jurisdiction of this Court. With the observation as above the CRLMP stands dismissed. Judge (Chittaranjan Dash) S.K. Parida Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 07-Feb-2024 10:47:36 Page 5 of 5