The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.72 of 2023 Swarnarekha Sarangi …. Appellant Mr. Anirudha Das, Advocate -Versus- Deepak Kumar Acharya …. Respondent CORAM: JUSTICE ARINDAM SINHA JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 14.11.2023 Order No. 03. 1. The appeal was moved before co-ordinate Bench on 14th July, 2023. Inter alia, there was direction for issuance of notice. The appeal was next called on 13th October, 2023 by another division Bench, to which one of us was party (Arindam Sinha, J.). We reproduce below paragraphs 2 to 5 from order made that day. “2. Co-ordinate Bench by order dated 14th July, 2023 had directed issuance of notice. The postal article has been returned un-served with endorsement ‘addressee left without instruction’. Return to sender’. In terms of M/s. Madan and Co. v. Wazir Jaivir Chand, reported in AIR 1989 SC 630, paragraph 6, we accept the position to be good service on respondent- husband. 3. Appellant has chosen to appeal instead of applying for setting aside ex-parte judgment. Hence, we observe that appellant did not Page 1 of 7 crossexamine respondent-husband for testing the evidence adduced by him in the Trial Court. In the circumstances, the evidence was accepted by the Trial Court and that is no error. Based on the evidence, there has been direction to dissolve the marriage. 4. We find further from impugned judgment that the trial Court was conscious of interim maintenance paid by respondent-husband till date of judgment aggregating Rs.6,52,000/- and dealt with the question under issue no.(iv). In the circumstances, we adjourn hearing of the appeal to enable appellant to file application for adducing evidence in appeal, if so advised. In event appellant does so, she must disclose her income, assets and liabilities along with any evidence she may be able to adduce regarding income, assets and liabilities of respondent- husband. We make it clear, in event application is not filed prior to adjourned date or an application without substance is filed, the appeal is likely to be dismissed. 5. List on 14th November, 2023.” 2. Today Mr. Das, learned advocate appearing on behalf of appellant files affidavit dated 13th November, 2023 disclosing following documents:- (i) Sale deed dated 24th July, 2009, wherein respondent-husband is purchaser in respect of seven decimals of land in Mouza-Kathagada for ₹ 2,11,750/-. (ii) Extract of RoR signed by the Tahsildar, Dhenkanal on 19th August, 2011. Mr. Das submits, it is in Page 2 of 7 respect of above purchased land having been mutated in the record. (iii) Income Tax calculation sheet for month of March, 2015 pertaining to assessment year 2015-2016 and for month of March, 2016 pertaining to assessment year 2016-2017. Former calculation sheet bears date 26th April, 2016. 3. Appellant has raised several grounds of appeal. Mr. Das submits, prayer in the appeal memo be read as appellant seeking to prefer appeal from impugned judgment dated 17th February, 2023, for directing remand and trial with participation of his client. Though the prayer speaks otherwise we accept submission made by Mr. Das. 4. On query made no ground in the memorandum attacking the judgment on merit was shown to us. Hence, our adjudication must be directed to whether appellant was denied opportunity of hearing since, of the two remedies available, one for seeking setting aside of ex-parte decree and the other for appeal, she has chosen to appeal. Be it mentioned here that appellant filed written statement and participated at trial upto partly cross-examining respondent-husband. In the circumstances, it is doubtful whether the judgment can be said to be ex-parte against her. 5. We perused order-sheet from the lower Court record. We note that after several adjournments obtained by appellant culminating in order dated 7th May, 2022 debarring appellant from filing written statement and directing placing the matter Page 3 of 7 on 27th June, 2022 for hearing, while permitting appellant to participate without written statement, on adjourned date (27th June, 2022) appellant filed her written statement. The Court below accepted it. Order dated 9th September, 2022 records said Court’s attempt at conciliation. There is record of failure. On that day itself respondent-husband filed evidence on affidavit, was examined in chief and cross-examined in part. On 21st September, 2022 the Court disallowed two questions put in cross-examination. On behalf of appellant a petition was filed. Respondent-husband filed objection thereto and it was heard and disposed of by order dated 26th September, 2022. The petition was rejected. 6. On following dates of hearing appellant had sought adjournments on ground that writ petition had been filed challenging said order dated 26th September, 2022. This carried on for a while and the Court below enquired whether there was stay of proceeding in the suit obtained by appellant wife in the writ petition. As no such order had been made and appellant having had submitted that the writ petition could not be listed, respondent-husband was directed to be cross- examined. There was no attempt at cross-examination. On application made on behalf of respondent-husband, his evidence was closed. 7. The wit petition was thereafter dealt with by a learned single Judge on order dated 2nd February, 2023. We reproduce paragraphs 5 to 9 from said order made in WP(C) no.32575 of 2022 (appellant’s writ petition) Page 4 of 7 “5. Upon hearing learned counsel for the parties and on perusal of the record, it appears that learned Judge, Family Court dealt with the petition filed by the Petitioner in detail and came to a conclusion that, even if, the protection report contains that the Petitioner has meted out with cruelty, the same cannot be utilized in a proceeding under Section 13(1) of the Hindu Marriage Act, 1955 (for short ‘the Act’) against the Opposite Party. It was further observed that the same cannot also be confronted to the Opposite Party. 6. As the report filed in D.V. Case cannot be in a a subject matter of consideration proceeding under Section 13(1) of the Act, the suggestion to that effect would be irrelevant, as rightly observed by learned Judge, Family Court, Dhenkanal. It further appears the cross- 7. examination of P.W.1 has already been over in the meantime and his evidence has been closed. Thus, the writ petition has become academic. that 8. Accordingly, the writ petition is disposed of without interfering with the impugned order under Annexure-2. 9. As requested by Mr. Pattnaik, learned counsel for the Petitioner, learned Judge, Family Court, Dhenkanal should make an endeavour for early disposal of C.P. No.38 of 2020.” (emphasis supplied) Pursuant to the writ petition having had been disposed of without interfering with order impugned therein, learned advocate for appellant in the Court below pleaded no instruction. This was inspite of direction obtained by appellant from the writ Court for early disposal. The trial thereafter Page 5 of 7 proceeded without participation of appellant and impugned judgment came to be passed. 8. Conduct of appellant in the Court below speaks of having caused obstruction to the trial. Nevertheless, since documents have been produced in this appeal, it is necessary to point out that those documents are as aforesaid, sale deed registered on 24th July, 2009 and subsequent mutation appearing in extract of the record bearing date 19th August, 2011 and two calculation sheets lastly, on assessment year, 2016-17. The documents could well have been produced by appellant at trial conducted in year, 2022 culminating in impugned judgment dated 17th February, 2023. So far as the calculation sheets are concerned, the net income reflected for assessment year, 2016-17 is less than ₹10 lakhs per annum. Appellant had in her written statement filed on 27th June, 2022 alleged that respondent-husband was earning ₹1,20,000/- per month. Obviously, she had relied on something other than the calculation sheets disclosed at this time before us. 9. The property documents and calculation sheets, in view of last preceding paragraph, were not documents that were presented before the Court below but refused to be admitted in evidence. Those documents also cannot be said to be additional evidence that appellant notwithstanding exercise on due diligence was not within her knowledge or could not after exercise of due diligence be produced by her at the time the judgment was passed. Those documents were never required by the Court below in discussing claim under issue no.4, for permanent alimony made at ₹60 lakhs by appellant. Hence, Page 6 of 7 the clauses under rule 27 in order XLI, Code of Civil Procedure, 1908 for admitting additional evidence in appeal are not satisfied by the documents annexed to the affidavit of appellant for production as additional evidence in the appeal. 10. We are convinced that appellant had every opportunity given to her by the trial Court to present her case. The opportunity appears to have been squandered by her. There must be finality of litigation. Impugned judgment is confirmed. 11. The appeal is dismissed. (Arindam Sinha) Judge (S. S. Mishra) Judge RKS Signature Not Verified Digitally Signed Signed by: RANJAN KUMAR SETHI Designation: Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 15-Nov-2023 11:32:11 Page 7 of 7