Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 883 (CAL)

Nandalal Basak v. Beauti Alias Beauty Basak

2008-09-02

L.NARASIMHA REDDY

body2008
JUDGMENT: PRASENJIT MANDAL, J. (1.) CHALLENGE is to the order dated 08. 02. 2008 passed by the learned Additional District Judge, Sixth court, Barasat in Matrimonial Suit No. 12 of 2008 whereby the learned Additional District Judge has fixed the next date on 11. 03. 2008 for filing a written statement of defence. The Court has also directed the wife/respondent to obtain certified copy of the plaint in the meantime. (2.) THE short fact of the case is that the plaintiff/petitioner filed the suit for divorce under Section 13 (1) (i) and (ia) of the hindu Marriage Act, 1955 against the wife/respondent. The plaintiff/petitioner took several steps for issuance of service upon the wife/respondent. Ultimately, he had to take steps for newspaper publication for substituted service. Thereafter on 21. 01. 2008 he filed an application for fixing the date of ex parte hearing of the suit. That petition was fixed for hearing on 08. 02. 2008. On that day, the learned Additional District Judge did not hear the learned Advocate for the plaintiff/petitioner over his petition dated 21. 01. 2008. But he passed the impugned order behind his back. There is no mention about the petition of the plaintiff/petitioner dated 21. 01. 2008 in the impugned order. Being aggrieved by the impugned order, the plaintiff/petitioner has preferred this application for setting aside the said order. (3.) HAVING considered the submission of the learned Advocate of both the sides and on perusal of the record, I find that the scope of dispute between the parties is very much limited. The fact remains that the plaintiff/petitioner, after filing the suit for divorce against his wife, had to take several steps for service of summons upon the respondent. Ultimately, he had to take steps for substituted service by newspaper publication at a cost of rs. 3,000/ -. Thereafter, he filed an application dated 21. 01. 2008 for ex parte hearing of the suit, which was fixed on 08. 02. 2008 for hearing. But on that day, the learned Additional District judge did not hear the learned Advocate for the petitioner at all and disposed of the two applications filed by the wife/respondent by the impugned order. In the circumstances, the learned Advocate for the petitioner has submitted for vacating the impugned order and for awarding costs incurred in issuing processes against the opposite party. In the circumstances, the learned Advocate for the petitioner has submitted for vacating the impugned order and for awarding costs incurred in issuing processes against the opposite party. I find that the impugned order does not lay down that it was passed upon hearing both the sides and in fact there is no whisper about the petition dated 21. 01. 2008 filed by the plaintiff/petitioner. The order impugned is not, therefore, sustainable at all. (4.) THE learned Advocate for the wife/respondent has contended that at present her client has filed a written statement of defence; copy of which has been served upon the plaintiff/petitioner and the same has been accepted by him. This fact is not denied by the learned Advocate for the petitioner. This being the position, I hold that the suit being one for a decree for divorce, it should be disposed of on contests and that after acceptance of the copy of the written statement filed by the wife/respondent, there is no way of going back. (5.) IN the circumstances, the Matrimonial Suit will proceed according to law. However, the plaintiff/petitioner had to incur certain expenses for effecting service of summons upon the wife/respondent. At present, there is no scope of fixing ex parte hearing of the suit. So the petition dated 21. 01. 2008 has become infructuous and it stands disposed of without any order. (6.) THE learned Advocate for the plaintiff/petitioner prays for awarding costs by this Court because of the expenses incurred by his client. The petitioner had to incur expenses for effecting service. The learned Advocate for the petitioner has specifically mentioned that this Court in exercise of supervising jurisdiction can well award cost of Rs. 3,000/- or any amount as is deemed fit and proper. In this regard, I am of the opinion that the Trial court is the best judge, upon perusal of the record, as to what amount of cost should be awarded for effecting service upon the wife/respondent. As I have observed that the petition dated 21. 01. 2008 filed by the plaintiff/petitioner has now become infructuous, liberty is given to the plaintiff/petitioner to file a petition before the learned Trial Court praying for costs for effecting service, if so advised. This Court is not in a position to determine costs to be awarded. Therefore, this matter is left entirely with the learned Trial Court for decision. 01. 2008 filed by the plaintiff/petitioner has now become infructuous, liberty is given to the plaintiff/petitioner to file a petition before the learned Trial Court praying for costs for effecting service, if so advised. This Court is not in a position to determine costs to be awarded. Therefore, this matter is left entirely with the learned Trial Court for decision. (7.) THE application is thus disposed of with the above orders. Both the parties are directed to appear before the Trial court on 22.09.2008 at 10.00 a.m. for receiving further directions from the Trial Court. There will be no order as to costs.