The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Mar-2024 17:10:25 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). NO.32933 OF 2023 Debasish Mishra …. Petitioner Mr. Jagannath Senapati, Advocate -versus- Soumyashree Nanda Opp. Party Mr. Nirmal Kishore Rath, Advocate …. Order No. 04. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 04.03.2024 This matter is taken up through hybrid mode. Petitioner in this writ petition seeks to assail the order dated 23rd August, 2023 (Annexure-13) passed by learned Judge, Family Court-II, Bhubaneswar in Civil Execution Case No.29 of 2019, whereby an application under Order XXI Rule 26 CPC filed by the Petitioner to stay execution proceeding, has been rejected. 3. Mr. Senapati, learned counsel submits that the Petitioner being the husband had filed CP No.306 of 2016 before learned Judge, Family Court Bhubaneswar for judicial separation under Section 10 of the Hindu Marriage Act, 1955 (for brevity the ‘Act’). The Opposite Party-wife appeared and filed her written statement. She also filed an application 24 of the Act for maintenance pendente lite, which was allowed vide order dated 2nd January, 2018 directing the Petitioner to pay Rs.12,200/- per month as maintenance pendente lite for the Opposite Party and Rs.5,200/- per month for the minor daughter from the date of application, i.e., from 7th April, 2017. Subsequently, on 27th February, 2019, the Opposite Party filed counter claim with a prayer to dissolve the marriage between them by a decree of divorce as well as for Page 1 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Mar-2024 17:10:25 // 2 // permanent alimony. The Petitioner also filed written statement to the said counter claim on 22nd July, 2019. When the matter stood thus, a petition under Order XXIII Rule 1 CPC was filed by the Petitioner with a prayer to abandon his claim in CP No.306 of 2016. 4. Although, the petition was filed on 11th January, 2019, learned Judge, Family Court, Bhubaneswar without disposing of the same, posted the CP to different dates either for filing objection or for hearing of the petition. Being aggrieved, the Petitioner moved this Court in W.P.(C). No.31644 of 2021, which was disposed of on 29th July, 2022 (Annexure-10) with the following direction: “8. The parties are before Court on petitioner having invoked jurisdiction of this Court under article 227 in the Constitution of India. The power of superintendence thereby conferred in High Courts is extraordinary. It is accordingly directed that the Court below will forthwith determine cost to be paid by petitioner for abandoning the proceeding. On the cost being paid as directed, the proceeding shall stand abandoned by petitioner. It shall be renumbered and registered as a divorce suit filed by opposite party (wife) against petitioner, as respondent. Issuance of further notice on the renumbered and registered divorce petition is dispensed with as this order is being made in petitioner’s presence. Above directions be complied with within three weeks from date and thereupon, the renumbered and registered divorce petition be proceeded with on resumption, as expeditiously as possible.” 5. Accordingly, the cost was determined by the Court to be Rs. 2500/- and the Petitioner paid the same on 30th November, 2022 and the petition under Section 10 of the Act filed by the Petitioner was treated to have been abandoned. However, the counter claim was renumbered as a separate divorce suit and is sub-judice. Page 2 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Mar-2024 17:10:25 // 3 // 6. Mr. Satpathi, learned counsel for the Petitioner further submits that the Petitioner is liable to pay the maintenance pendente lite till 11th January, 2019, i.e., the date on which the application for abandonment of his claim was filed. The counter-claim may continue, but since the order of maintenance pendente lite was passed in the petition under Section 10 of the Act, the Petitioner is not liable to pay any maintenance pendente lite after 11th January, 2019. In support of his case, the Petitioner relied upon the case law of Manish Jain vrs. Akanksha Jain in Civil Appeal No.4615 of 2014, disposed of on 30th March, 2017 wherein Hon’ble Supreme Court held as under: “17. The order impugned herein is set aside and the appeal is allowed. The amount of Rs.60,000/- awarded as maintenance pendente lite is reduced to Rs.25,000/- per month which is in addition to Rs.10,000/- paid under the proceedings of the D.V. Act. The appellant-husband is directed to pay the arrears w.e.f. 01.02.2012 till the disposal of the divorce petition, within four weeks from today. The appellant-husband shall continue to pay Rs.25,000/- per month in addition to Rs.10,000/-paid under the proceedings of the D.V. Act on or before 10th of every English calendar month till the disposal of the divorce petition. If the appellant-husband has paid or deposited any amount of maintenance pursuant to the order of the High Court dated 21.02.2014, the same shall be set-off against the arrears to be paid by the appellant-husband. The respondent-wife is at liberty to withdraw the amount, if any, deposited by the appellant-husband pursuant to the order dated 21.02.2014. We make it clear that we have not expressed any opinion on the merits of the matter. In case the appellant-husband does not comply with the order, as above, including for payment of arrears, he would be visited with all consequences including action for contempt of Court.” 7. He, therefore, submits that the Petitioner is liable to pay maintenance pendente lite till 11th January, 2019, i.e., abandonment of his claim for judicial separation. He also relied upon the case law in the case of Pratap Bhai V. Trevedi vrs. Priyamvada @ Page 3 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Mar-2024 17:10:25 // 4 // Ghamu Pratapbhai, reported in II (1993) DMC 25, wherein Hon’ble Supreme Court held as under: “6. It becomes clear from the aforesaid provision that the plaintiff can abandon the suit or abandon the part of his claim as a matter of right without the permission of the Court. This is known as unconditional withdrawal of the suit by the plaintiff. When the plaintiff withdraws the suit unconditionally firstly he becomes liable to pay such costs to the defendant as may be awarded by the Court, and secondly, he is precluded from instituting fresh suit in respect of same subject-matter under Sub-rule (3) of Rule (1) of Order XXIII. It is pertinent to note that there is no provision in the C. P. Code which authorises the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with the suit. The principle underlying the provision for withdrawal and abandonment is, that the law confers upon a man no rights or benefits, who he does not desire, invito bene fictum non datur. This principle is based on public policy and it is well established that the law would not ordinarily compel a person to prosecute the proceedings which he does not want to prosecute.” 8. He, therefore, submits that after submission of the petition under order XXIII Rule 1 CPC to abandon his claim for judicial separation nothing remains to be done by the Court. For abandonment of the whole or part of the claim, no intervention or permission of the Court is necessary. No specific order is also required to be passed by the Court for abandonment of the case operates from the date of filing of the petition. However, the court in such cases is required to pass an order regarding cost to be paid by the applicant. If the Petitioner does not pay the cost, it can be realized from him subsequently following due procedure of law. But, abandonment of the claim does not wait for payment of the cost. As such, the abandonment of claim of the Petitioner became effective from the date of filing of the petition under Order XXIII Rule 1 CPC. Hence, the Petitioner is not liable to pay any maintenance pendente lite from 11th January, 2019. He also relied Page 4 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Mar-2024 17:10:25 // 5 // upon several other decisions in the line of aforesaid case law, which are not required to be referred to. He, therefore, prays for setting aside the impugned order and stay the execution Case No.29 of 2019. 9. Mr. Rath, Learned counsel for the Opposite Party vehemently objects to the same. It is his submission that at the instance of the Petitioner, this Court in W.P.(C). No.31644 of 2021 while disposing of the writ petition categorically observed that learned Judge, Family Court will forthwith determine the cost to be paid by the Petitioner for abandoning the proceeding. ‘On the cost being paid as directed, the proceeding shall stand abandoned by the Petitioner.’ It is also submitted that this Court directed to register the counter-claim of the Opposite Party separately and proceed with the same. In view of the above, the proceeding shall be treated to be disposed of only on 30th November, 2022, i.e., the date on which the cost of Rs.2500/- was paid by the Petitioner and acknowledged by the Opposite Party. On the said date, the Court also recorded that the case filed by the Petitioner is abandoned. In any case, the counter-claim filed by the Opposite Party shall continue. Thus, learned Judge, Family Court, Bhubaneswar has committed no error in refusing to stay execution proceeding. 10. Taking note of submission made by learned counsel for the parties and on perusal of the record, it appears that in the writ petition filed by the Petitioner in W.P.(C). No.31644 of 2021, this Court disposing of the same vide order dated 29th July, 2022 held that learned Judge, Family Court, Bhubaneswar shall determine the cost to be paid by the Petitioner for abandoning the proceeding forthwith. It is also held that on the cost being paid as directed, the Page 5 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Mar-2024 17:10:25 // 6 // proceeding shall stand abandoned by the Petitioner. In view of the unambiguous words of this Court in disposing of the W.P.(C) No. 31644 of 2021, there remains no confusion that the proceeding under Section 10 of the Act shall stand abandoned on payment of cost to be determined by the Family Court. Admittedly, the cost was paid by the Petitioner on 29th July, 2022 and on the same date learned Family court recorded abandonment of the proceeding of the Petitioner filed under Section 10 of the Act. The said order was not challenged and thus attained its finality. Thus, the Petitioner is estopped to take a different stand and submit that the proceeding under Section 10 of the Act was abandoned since 11th January, 2019. Thus, the case law cited by learned counsel for the Petitioner are of no assistance to the Petitioner as those have no application to the facts and circumstances of the case. 11. In view of the direction of this Court, the proceeding of the Petitioner stood abandoned on the date of payment of cost. In fact, the Petitioner paid the cost on 30th November, 2022 and on the very same day, learned Judge, Family Court, Bhubaneswar recorded that the case of the Petitioner is abandoned. 12. As such, the Petitioner has not made out any case to stay the Civil Execution Case No.29 of 2019 pending in the Court of learned Judge, Family Court-II, Bhubaneswar. 13. Accordingly, the writ petition, being devoid of any merit, stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 6 of 6