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2013 DIGILAW 14 (CAL)

Anthoni Cornalious v. Usha Cornalious

2013-01-10

JYOTIRMAY BHATTACHARYA, MRINAL KANTI SINHA

body2013
JUDGMENT 1. This appeal is directed against the judgment and/or order dated 2nd June, 2012 passed by the learned Additional District Judge, 4th Court at Nadia, Krishnagar, in Matrimonial Case No. 923 of 2009 at the instance of the defendant/appellant. In connection with the said appeal, an application has been taken out by the defendant/appellant praying for disposal of the appeal itself by directing the learned Trial Judge to dispose of the appellant's counter claim on merit in the light of the provision contained in Order 8 Rule 6D of the Civil Procedure Code. Copy of the said application has been served upon the plaintiff/respondent. Affidavit of service has also been filed by the defendant/appellant. Let the said affidavit of service be kept with the record. 2. Despite service of such notice, the plaintiff/respondent remains unrepresented. Under such circumstances, the application filed by the appellant is taken up for consideration ex parte. 3. Here is the case where we find that the plaintiff/respondent (wife) filed a matrimonial suit against the defendant/appellant (husband) praying for dissolution of their marriage by way of decree of divorce. The appellant/defendant (husband) appeared in the said suit and filed a written statement containing counter-claim therein. In the said counter-claim, the husband also claimed a decree for divorce on different grounds. 4. By the impugned judgment/decree, the suit for divorce filed by the plaintiff/respondent was dismissed for default on 2nd June, 2012 as the plaintiff/respondent did neither take any step in her suit on the said date nor she had shown any cause for her failure to take steps in the suit on the previous date of hearing i.e. on 27th March, 2012. The learned Trial Judge, however, refused to consider the appellant's counter-claim as learned Trial Judge was of the view that the written statement filed by the appellant could not be regarded as a counter-claim of appellant as he claimed relief for divorce therein which was identical to the prayer made by the wife in her suit. As such no direction was given for consideration of the counter-claim of the defendant/appellant. 5. The legality and/or propriety of the said judgment/decree has been challenged by the defendant/appellant in this appeal. 6. We have considered the written statement filed by the defendant/appellant in the suit for divorce filed by the plaintiff/respondent. 7. As such no direction was given for consideration of the counter-claim of the defendant/appellant. 5. The legality and/or propriety of the said judgment/decree has been challenged by the defendant/appellant in this appeal. 6. We have considered the written statement filed by the defendant/appellant in the suit for divorce filed by the plaintiff/respondent. 7. On perusal of the said written statement, this Court finds that the defendant/appellant filed the written statement containing counter-claim praying for divorce on the grounds as mentioned therein. Court-fees in support of the relief claimed in the said counter-claim was also paid by him. Thus, after considering the written statement filed by the defendant/appellant as a whole, we are of the view that the said written statement contained counter-claim and as such in view of the provision contained in Order 8 Rule 6D of the Code of Civil Procedure, the counter-claim should have been considered independently, even after dismissal of the plaintiff's suit for divorce for default. 8. Thus, this Court holds that though the learned Trial Judge did not commit any mistake in dismissing the plaintiffs suit as she neither appeared in the said suit on the date of hearing nor took any effective step for explaining the reasons for her default on the previous date of hearing, i.e. on 27th March, 2012, but at the same time the learned Trial Judge, in our view, committed illegality by not fixing a date of hearing of the counter-claim of the defendant/appellant independently in the light of the provision contained in Order 8 Rule 6D of the Civil Procedure Code. 9. Accordingly, the appeal as well as the application are disposed of with a direction upon the learned Trial Judge to register the counter-claim filed by the defendant/appellant as an independent suit and dispose of the same on its merit in accordance with law. Both the appeal and the application, thus, stand disposed of.