Orissa High Court
Netaji Bhoi vs Bijaya Laxmi Behera @ Bhoi ....... Opp. ... on 7 September, 2021
Author: Biswajit Mohanty
Bench: Biswajit Mohanty
IN THE HIGH COURT OF ORISSA, CUTTACK
RPFAM No.125 of 2019
An application under Section 19(4) of the Family Courts Act.
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Netaji Bhoi ....... Petitioner
-Versus-
Bijaya laxmi Behera @ Bhoi ....... Opp. Party
For Petitioner: - M/s. M. Mishra , R.B.Sinha
S.R.Rana (Advocate)
For Opp. Party: - Mr. D.P. Dhal,
Advocate
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JUDGMENT
P R E S E N T:
THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY
---------------------------------------------------------------------------------- Date of Hearing: 03.09.2021 Date of Judgment: 07.09.2021
---------------------------------------------------------------------------------- B. Mohanty, J. This revision petition has been directed against the exparte judgment dated 30.3.2017 passed by the learned Judge, Family Court, Kendrapara in Criminal Proceeding No. 214 of 2011/CRP No. 373 of 2013, which was initiated under Section 125 of the Criminal Procedure Code by the opposite party-wife.
2. The wife of the petitioner who is the sole opposite party filed a petition under Section 125 of Cr.P.C. against the petitioner // 2 // with a prayer for grant of maintenance of Rs.5,000/- per month with Rs.10,000/- as litigation expenses. In the said petition, the opposite party has stated that both she and the petitioner are governed under Mitakshar School of Hindu Law and their marriage was solemnized on 12.7.2007 as per Hindu Customs. At the time of marriage the petitioner was given different household articles, gold ornaments as per his demand and the demand of his family members. After six months of the marriage, the opposite party noticed change in behavior of the petitioner and his family members as they were not satisfied with the dowry given. Accordingly the petitioner started demanding Rs.25,000/- to be brought from her father so that he could expand his stationery- cum-betel shop. As her father was not in a position to meet such demand, she was tortured mentally and physically and she was not provided food properly. After the father of the opposite party came to know about this, he gave Rs.6,000/- to the petitioner and requested not to torture her. However in June, 2009, the petitioner left the opposite party for her father's house and made it clear to her that unless she brings the rest amount demanded, she would be harmed. Thereafter the father of the opposite party gave Rs.8,000/- to the petitioner and left the opposite party in the house of the petitioner. Again the opposite party was tortured and after some time the opposite party came to know about the illicit Page 2 of 9 // 3 // relationship of the petitioner with his elder sister-in-law and when she protested, she was again assaulted by the petitioner. When the petitioner tried to kill the opposite party, the opposite party was rescued and since then she has been staying at her parent's house in a miserable condition. It is in this background she filed an application under Section 125 of Cr.P.C. praying for maintenance and litigation expenses. Therein she stated that the petitioner earns more than Rs.30,000/- per month from the betel-cum-stationery shop and agriculture. Thus despite having sufficient means he is not maintaining her.
3. It is the case of the petitioner that though in the said case after receipt of summons, the petitioner had engaged his advocate to proceed with the case but the Advocate did not take any steps and the petitioner was set ex parte. In such background the matter proceeded and ultimately same was dismissed on 13.6.2014 by the learned Judge, Family Court, Kendrapara. Challenging the said order the opposite party filed RPFAM No. 74 of 2014 before this Court and this Court vide order dated 24.11.2015 allowed the same and remitted the matter to the trial Court for fresh adjudication and for passing necessary orders. It is in this background the trial Court has passed the impugned judgment directing the petitioner to pay Rs.3,000/- per month from the date of the application subject to adjustment of interim maintenance, if Page 3 of 9 // 4 // any, paid. It is the further case of the petitioner the impugned order was not within his knowledge. When the petitioner received the information from the local police on 8.1.2019 about issuance of N.B.W. against the petitioner, he approached his Advocate who immediately handed over the file to the petitioner and in order to know the exact status of the case he contacted another Advocate, who intimated the petitioner that the matter has been decided ex- parte due to non-taking of steps by the previous Advocate.
4. Mr.Mishra, learned counsel for the petitioner mainly submitted that though on receipt of summons the petitioner had engaged an advocate to defend him, however the learned lawyer did not take any steps as a result of which, the petitioner was not only set ex-parte but has ultimately suffered an ex-parte judgment and for laches of his advocate the petitioner should not suffer. Mr.Mishra also disputed the income of the petitioner as pointed out by the opposite party in her plaint and evidence and submitted that in the interest of justice the impugned judgment ought to be set aside and the petitioner should be given an opportunity to cross- examine the witnesses examined from the side of the opposite party and where after the learned court below can pronounce its judgment.
5. Mr.Dhal, learned counsel for the opposite party strongly objected to the prayer of the petitioner and submitted that Page 4 of 9 // 5 // such a prayer should not be entertained. He submitted that the only intention of the petitioner is to drag the matter. He also submitted that notwithstanding the order dated 12.5.2014 of the Court below directing the petitioner to pay interim maintenance of Rs.2,000/- with effect from the date of filing of application i.e. 5.4.2011 and litigation expenses of Rs.3,000/- but till date the opposite party has received only Rs.30,000/- pursuant to order dated 29.5.2019 passed by this Court in I.A. No. 233 of 2019. According to him by now the outstanding due relating to maintenance stands at Rs.2,63,000/-. In such background he prayed that the present revision be dismissed as the sole opposite party is suffering a lot.
Heard learned counsel for the parties. Perused the L.C.R.
6. A perusal of the L.C.R. shows that in the 125 Cr.P.C. proceeding, the petitioner received the notice to show cause on 4.8.2011 and as per the said notice, date of appearance was fixed to 3.11.2011. Since he took no steps after personal service he was set ex parte on 10.2.2012. The opposite party filed evidence affidavit on 26.9.2012 and again on 3.9.2013 and examined herself on 3.9.2013. On the same date the father of the opposite party was also examined as P.W.2 and matter was posted for further hearing to 27.9.2013. From the order sheet it appears that later on the Page 5 of 9 // 6 // same date i.e. 3.9.2013, the petitioner appeared through lawyer and his Vakalatnama was accepted subject to limited purposes as per law. He also filed a petition seeking permission to file objection without serving copy of the same either to opposite party or her counsel. This petition was directed to be put up on 27.9.2013 for hearing on its maintainability. Thus it is clear that despite notice, the petitioner never cared to appear on the date fixed. Rather he appeared at a much later stage. In such background, he cannot be permitted to throw blame on the lawyer. On 27.9.2013 the advocate for the petitioner took time. On the same date, an application was filed by the opposite party praying for interim maintenance. On 4.11.2013 the petitioner filed an application with a prayer to recall the ex-parte order dated 3.9.2013 and for allowing him to cross- examine the opposite party. Matter was directed to be put up to 28.11.2013. On 28.11.2013 the matter was adjourned to 6.1.2014. On that date there was no appearance from the side of the petitioner on repeated calls and the petitioner was set ex-parte for the second time and further prayer of the petitioner to set aside probably the earlier exparte order was rejected. However as no order was passed with regard to the prayer of the petitioner for cross-examining the opposite party; by implication it can be said that such prayer of the petitioner also stood rejected. The matter was directed to be put up on 18.1.2014. The order dated 18.1.2014 Page 6 of 9 // 7 // reveals that the opposite party was present and her Advocate filed a memo stating about filing of affidavit evidence on 26.9.2012. The memo was directed to be put up on 7.2.2014 along with I.A. No. 33 of 2013 i.e. the petition filed by the opposite party, where she had prayed for interim maintenance. On 3.2.2014 the record was put up on the strength of an advance petition along with a petition to recall the orders dated 6.1.2014 and 18.1.2014. The matter was again directed to be put up on the date fixed i.e. 7.2.2014. On 2.4.2014 the opposite party filed her objection to the petition dated 3.2.2014 filed by the petitioner. The hearing on the petition dated 3.2.2014 was held on 5.5.2014 and ultimately on 12.5.2014 the prayer made in the petition dated 3.2.2014 filed by the petitioner was rejected after referring to the prayer of the petitioner to give him opportunity to cross-examine the witnesses of the opposite party. This order was never challenged by the petitioner. On the same date the prayer of the sole opposite party for interim maintenance was allowed directing the petitioner to pay interim maintenance of Rs.2,000/- per month to the opposite party from the date of filing of application i.e. 5.4.2011 and litigation expenses of Rs.3,000/- till disposal of the original proceeding and the original proceeding was fixed to 11.6.2014 for argument. On 13.6.2014 the petition under Section 125 Cr.P.C. was dismissed by the learned Judge, Family Court, Kendrapara which was set aside Page 7 of 9 // 8 // by this Court on 24.11.2015 in RPFAM No. 74 of 2014 and ultimately the matter was heard on 18.3.2017 after rejecting the prayer of the petitioner for adjournment.
7. From the above narration of events, it is clear that despite receipt of notice, petitioner never cared to appear on 03.11.2011 i.e. the date fixed. Accordingly, he was set ex parte on 10.02.2012. He entered appearance only on 3.9.2013 by which time examination of witnesses from the side of the opposite party was over. Further as indicated earlier he did not challenge the order passed by the court below on 12.5.2014 dismissing the petition dated 3.2.2014 filed by the petitioner with prayer for recalling the orders dated 6.1.2014 and 18.1.2014. As indicated earlier on 6.1.2014 by implication the prayer of the petitioner for cross-examining the opposite party had stood rejected. Therefore for all purposes the orders setting the petitioner ex-parte and implied rejection of his prayer to cross-examine the opposite party reached its finality on 12.5.2014. In order dated 12.05.2014 the learned Court below has discussed about the prayer of the petitioner to cross-examine. Also as indicated earlier, the order dated 12.5.2014 was never challenged by the petitioner and it is also nowhere the case of the petitioner that he was never informed about such order by his Advocate. In such background the petitioner cannot throw the blame on the lawyer to escape from the Page 8 of 9 // 9 // rigors of law. Further direction to pay maintenance of Rs.3,000/- a month cannot be described as a huge amount by any stretch of imagination in these days as the same cannot be even enough to meet the cost of fooding of the opposite party. Further a perusal of order dated 12.5.2014 clearly shows that the learned court below has come to a finding that the petitioner was not interested for disposal of the case and wanted to linger the same. Considering all these things this Court is of the opinion that the impugned judgment cannot be said to suffer from any illegality or impropriety and accordingly is not inclined to entertain the present revision and the same is dismissed. Interim order dated 29.5.2019 staying operation of order dated 26.3.2019 passed by the learned Judge Family Court, Kendrapara in Criminal Execution Proceeding No. 15 of 2011 stands vacated.
Office is directed to send a copy of this order along with the L.C.R forthwith to the Court of Judge Family Court, Kendrapara.
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Biswajit Mohanty, J.
Orissa High Court, Cuttack The 7th September, 2021 /Kishore Page 9 of 9