Orissa High Court
Sunita Senapati vs Bismaya Mohapatra on 24 September, 2024
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.28 of 2024
Sunita Senapati .... Appellant
-versus-
Bismaya Mohapatra .... Respondent
Learned advocates appeared in this case:
For appellant : Mr. Prafulla Kumar Jena, Advocate
For respondent : Mr. Pravat Kumar Mohanty, Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
___________________________________________________________________________________________________________________________________ Date of hearing and judgment : 24th September, 2024 ___________________________________________________________________________________________________________________________________ ARINDAM SINHA,J.
1. Mr. Jena, learned advocate appears on behalf of appellant, wife in the marriage annulled by ex-parte judgment dated 7th April, 2023 made by the Family Court. He had earlier submitted, the appeal is directed against order dated 16th January, 2024 of the Family Court, refusing to admit the application for setting aside the ex parte judgment. Though, his client was precluded from filing written statement, it cannot stand in the way of relief under rule 13 in order Page 1 of 7 IX, Code of Civil Procedure, 1908. On subsequent occasion he had submitted that not only was his client precluded from filing written statement but also, when learned advocate engaged by her had failed to appear, the Family Court ought to have issued notice to his client. He had relied on judgment dated 2nd December, 1997 of the Supreme Court in Malkiat Singh v. Joginder Singh, reported in AIR 1998 SC 258 .
2. At this juncture, we reproduce below paragraphs 2 and 3 from our order dated 18th April, 2024.
"2. Adjournment is granted for Mr. Jena to show us provision in law requiring Court to issue fresh notice/summons to a party, who had entered appearance through learned advocate but said advocate did not appear/withdrew.
3. On query from Court Mr. Jena submits, valuable articles were given as gifts in the marriage. Mr. Mohanty, learned advocate appears on behalf of respondent-husband and submits, he will take instruction regarding gifts."
3. The appeal was subsequently heard on 9th May, 2024. Paragraph-2 from our order made that day is reproduced below. Page 2 of 7 MATA no.28 of 2024 "2. We have compared the lists handed up.
Respondent-husband admits to have received a chain, a bracelet and seven rings. More or less it matches with the list handed up on behalf of appellant-wife, on three rings short. The jewellery items mentioned, as given for the bride, must be demonstrated from the evidence as had been made over to respondent. Apart, there are an almirah, alana and mattress etc." Today, Mr. Mohanty, learned advocate appearing on behalf of respondent hands up two receipts both dated 2nd July, 2024 to demonstrate return of articles as mentioned in above extracted paragraph-2 in order dated 19th May, 2024.
4. Mr. Jena submits, there are other articles not returned. He submits further, there could not have been annulment of the marriage on finding that his client, wife in the marriage, was impotent. We reproduce below section 12(1)(a) in Hindu Marriage Act, 1955.
"12(1) .... .... ..... (a) That the marriage has not been consummated owing to the impotence of the respondent;"
The provision is gender neutral. It is in that light the allegation was made, to be found true by the Family Court on rendering said ex parte Page 3 of 7 MATA no.28 of 2024 judgment. Appellant having had entered appearance and thereafter failed and neglected to file written statement within prescribed time as extended, stood precluded.
5. In Malkiat Singh (supra) the Supreme Court found, appellants before it had engaged counsel to defend them in the civil suit. The counsel had pleaded "no instructions" but the Court did not issue any notice to the appellants, who were not present on the date when their counsel had so reported. The appellants only came to know, inter alia, about the ex parte decree when they approached their counsel. It was within four days thereafter they filed application for setting aside the ex parte decree.
6. In this case, after appellant was precluded from filing written statement, the learned advocate engaged by her did not appear. The ex parte judgment was made on 7th April, 2023 and the application for setting it aside, on 9th January, 2024. It contained two paragraphs. Reproduced below is paragraph-2 from the application.
"2. That, the petitioner for the first time on 26/12/2023 could know about the aforesaid ex-parte Page 4 of 7 MATA no.28 of 2024 Judgment and decree when she came to her native village from Chennai. Therefore, there is no delay in filing of this CMA in view of the provisions under Article-123 of The Limitation Act. But, for a better precaution, the petitioner is filing this application for condonation of delay if found by this Hon'ble Court."
Finding by the Family Court was appellant had not been able to render satisfaction that she had been prevented by any sufficient cause from appearing. The finding does not appear to be erroneous. Mr. Jena has not been able to show us a provision in law saying that after a party to a matrimonial dispute in a civil proceeding enters appearance and thereafter fails to appear, there is requirement to issue fresh notice/summons.
7. There must be finality of legal proceedings. Law of procedure allows for full opportunity, to be availed by a party to the proceeding. Law of procedure also allows for the Court to proceed ex parte. Once the Court does so, the work can be undone only on sufficient cause shown for being prevented to appear, rendered to satisfaction of the Court. This is all the more necessary since there is huge backlog of Page 5 of 7 MATA no.28 of 2024 cases to be adjudicated. Having to adjudicate twice over a case because a party was negligent, does not serve the interest of justice.
8. Mr. Jena relies on section 13 in Family Courts Act, 1984. The provision is reproduced below.
"13. Right to legal representation - Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner:
Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae. "
Contention of appellant appears to be that the Family Court ought to have acted in terms of the proviso. The proviso has to be read with the provision itself. The provision says, no party to a suit or proceeding shall be entitled as of right to be represented by a legal practitioner. The proviso follows regarding the Family Court considering it necessary in the interest of justice to seek assistance from amicus curiae. Facts are, appellant did not seek before the Family Court right to be represented by legal practitioner. She appointed one and entered appearance. It is thereafter the omissions to file written statement and appear.
Page 6 of 7 MATA no.28 of 2024
9. We do not find error, either on facts or in law, made by the Family Court on impugned order. It is confirmed.
10. The appeal is disposed of.
( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 25-Sep-2024 16:58:10 Page 7 of 7 MATA no.28 of 2024