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2015 DIGILAW 414 (ORI)

Sarat Kumar Mishra v. Sandhyarani Satapathy

2015-07-14

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT : S.K.Sahoo, J. This is an appeal filed by appellant Sarat Kumar Mishra (hereafter ‘the petitioner–husband’) under section 19 of the Family Courts Act, 1984 challenging the impugned order dated 24.09.2009 of the learned Judge, Family Court, Cuttack passed in Misc. Case No.277 of 2008 in dismissing the petition filed by the petitioner-husband under Order 9 Rule 13 CPC to set aside the ex parte decree dated 12 .11.2008 passed in Civil Proceeding No.177 of 2008 with a further prayer for allowing the petitioner-husband to participate in Civil Proceeding No. 177 of 2008. 2. The respondent Smt. Sandhyarani Satapathy (hereafter ‘the opposite party-wife’) filed a petition under Section 13 of Hindu Marriage Act, 1955 in the Court of the learned Judge, Family Court, Cuttack which was registered as Civil Proceeding No. 177 of 2008 for seeking a decree of divorce against the petitioner-husband and for permanent alimony of Rs.5,00,000/-(Rupees five lakhs). It is the case of the opposite party-wife that she is the legally married wife of the petitioner-husband and their marriage was solemnized on 9.5.2001 according to Hindu rites and customs and at the time of marriage, cash of Rs. 50,000/-and other household articles worth of Rs. 50,000/-were given to the petitioner-husband and his family members including gold ornaments weighing about 10 bharis and silver ornaments weighing about 30 bharis by her father and other relations. The marriage was consummated in the house of the petitioner-husband. After two months of marriage, the opposite party-wife who was working as a demonstrator in a private college at Cuttack came to her parents’ house for continuing her service in the college where she was working. The opp. party-wife used to visit her in-laws’ house in regular intervals. It is the further case of the opp. party-wife that the petitioner-husband was very adamant and behaved with her in a very inhuman manner, subjected her to cruelty and forcibly took away all the gold and silver ornaments from her. The petitioner-husband also did not look after her comfort and he had no love and affection for her. Due to frequent assault on her by the petitioner-husband, the opp. party-wife became very much apprehensive of her life and thought that it would be very much harmful and injurious on her part to live in the company of her husband. The petitioner-husband also did not look after her comfort and he had no love and affection for her. Due to frequent assault on her by the petitioner-husband, the opp. party-wife became very much apprehensive of her life and thought that it would be very much harmful and injurious on her part to live in the company of her husband. The petitioner-husband was working as a Computer Operator in CESU at Bhubaneswar and staying at Bhubaneswar and he did not allow the opp. party-wife to stay with him to lead a conjugal life. The opp. party-wife was deprived of resumption of normal conjugal life and cohabitation and all attempt made by her for such resumption was in vain. 3. On being noticed, the petitioner-husband entered appearance in Civil Proceeding No. 177 of 2008 through his counsel on 24.06.2008 but subsequently he remained absent for which the case was set ex parte against him on 23.9.2008. 4. The opp. party-wife filed her evidence affidavit which remained unchallenged. 5. The learned trial Judge vide order dated 12.11.2008 decreed the case ex parte against the petitioner-husband after going through the averments made in the plaint and the unchallenged sworn testimony of the opp. party-wife. Taking into account the destitute condition of the opposite party-wife, while dissolving the marriage solemnized between the parties by a decree of divorce, the learned trial Judge directed the petitioner-husband to pay Rs. 2,00,000/-(Rupees two lakhs) as permanent alimony to the opp. party-wife within two months. 6. The petitioner-husband filed a petition under Order 9 Rule 13 CPC on 10.12.2008 before the learned Judge, Family Court, Cuttack which was registered as Misc. Case No. 277 of 2008 for setting aside the ex parte order dated 12.11.2008 passed in Civil Proceeding No. 177 of 2008. On being noticed, the opp. party-wife appeared through her counsel. The learned trial Judge after hearing both the sides came to hold that though the petitioner-husband on receipt of the summons issued by the Court in Civil Proceeding No. 177 of 2008 appeared through his counsel on 24.06.2008 but he did not file any petition on the date of his appearance seeking permission of the Court to engage any legal practitioner to conduct the case on his behalf as per the provisions under section 13 of the Family Courts Act, 1984. The learned trial Judge further held that though the case was adjourned to 19.07.2008 for filing written statement and for conciliation but no steps were taken either on 19.07.2008 or on subsequent dates for which the case was set ex parte on 23.09.2008 and then the case was adjourned to 17.10.2008 and then to 06.11.2008 for ex parte hearing but the petitioner-husband did not take any steps on those dates. No explanation had also been offered by the petitioner-husband for his non-appearance on the date fixed. The learned trial Judge further held that the petitioner-husband adopted dilatory tactics and due to his noncooperation, the proceeding suffered some adjournments. Since the petitioner-husband failed to satisfy that he was prevented by any sufficient cause for appearing before the Court on the date fixed after his appearance and also on the date of ex parte hearing, the learned trial Judge held that he was not entitled to get any relief and accordingly the petition filed under Order 9 Rule 13 CPC was dismissed on 24.09.2009. 7. During pendency of the appeal, on being noticed the opposite party-wife appeared in the case and the matter was referred to mediation and Mr. Yeeshan Mohanty, Senior Advocate was appointed as mediator. The report of the mediation was submitted by Mr. Mohanty wherein he had indicated that after long deliberation, the dispute between the parties could not be settled mutually and the mediation failed. 8. During hearing of the appeal, the learned counsels for both the parties on instructions submitted at the bar that there is no chance of reconciliation between the parties. In view of the changed scenario and the prevailing situation, the learned counsel for the petitioner-husband also did not challenge the ex parte order of divorce but prayed for reduction of the quantum of permanent alimony of Rs. 2,00,000/-as was fixed by the learned trial Judge. He submitted that there was no material before the learned trial Judge to determine and fix up that amount and the petitioner-husband is serving as a Data Entry Operator in CESU, Bhubaneswar and at the time of passing of the ex parte decree, he was getting a sum of Rs.3,390/-per month and subsequently he was getting a consolidated sum of Rs.4,500/-per month. 9. 9. After going through the pleadings and the impugned order, we found that the reasonings assigned by the learned trial Judge in dismissing the petition filed by the petitioner-husband under Order 9 Rule 13 CPC in Misc. Case No. 277 of 2008 are quite cogent, sound and acceptable. The Hon’ble Supreme Court in the case of Parimal v. Veena reported in (2011) 3 SCC 545 , held that the Second Proviso of Order 9 Rule 13 of CPC is mandatory and has interpreted the expression "sufficient cause" as under: ”13. 'Sufficient cause' is an expression which has been used in a large number of statutes. The meaning of the word 'sufficient' is 'adequate' or 'enough', inasmuch as may be necessary to answer the purpose intended. Therefore, word 'sufficient' embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, 'sufficient cause' means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been 'not acting diligently' or 'remaining inactive'. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. [Vide Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 ; Lonand Grampanchayat v. Ramgiri Gosavi, AIR 1968 SC 222 ; Surinder Singh Sibia v. Vijay Kumar Sood, (1992) 1 SCC 70 and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn., (2010) 5 SCC 459 ]. x xx x x 15. While deciding whether there is sufficient cause or not, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the Court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. While deciding whether there is sufficient cause or not, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the Court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94 ; Madanlal v. Shyamlal, (2002) 1 SCC 535 ; Davinder Pal Sehgal v. Partap Steel Rolling Mills (P) Ltd., (2002) 3 SCC 156 ; Ram Nath Sao v. Gobardhan Sao, (2002) 3 SCC 195 ; Kaushalya Devi v. Prem Chand, (2005) 10 SCC 127 ; Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd., (2005) 13 SCC 95 and Reena Sadh v. Anjana Enterprises, (2008) 12 SCC 589 ].) 16. In order to determine the application under Order 9 Rule 13, CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the Court with a reasonable defence. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application. In the case of G.P. Srivastava v. R.K. Raizada reported in (2000) 3 SCC 54 , the Hon’ble Supreme Court held as under: “7. Under Order 9 Rule 13, CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for nonappearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words 'was prevented by any sufficient cause from appearing' must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. The words 'was prevented by any sufficient cause from appearing' must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The 'sufficient cause' for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufficient cause' is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” Keeping in view the ratio laid down by the Hon’ble Supreme Court in the aforesaid cases, we are of the view that the learned trial Judge has rightly held that no sufficient cause was shown by the petitioner-husband for non-taking of steps continuously after the first date of appearance. 10. So far as the permanent alimony part is concerned, the learned trial Judge, Family Court, Cuttack has directed the petitioner-husband to pay a sum of Rs. 2,00,000/-(Rupees Two Lakhs) as permanent alimony to the opp. party-wife. The quantum of permanent alimony has not been challenged in the appeal. The petitioner husband is working as Computer Operator in CESU at Bhubaneswar. The contention of the learned counsel for the petitioner-husband that the petitioner was getting a scanty consolidated amount of Rs. 4,500/-per month is not supported by any documentary evidence. party-wife. The quantum of permanent alimony has not been challenged in the appeal. The petitioner husband is working as Computer Operator in CESU at Bhubaneswar. The contention of the learned counsel for the petitioner-husband that the petitioner was getting a scanty consolidated amount of Rs. 4,500/-per month is not supported by any documentary evidence. Considering the economic status of the parties, their respective needs, the capacity of the petitioner-husband to pay and taking note of the fact that the amount of permanent alimony fixed for the wife should be such that she can live in reasonable comfort and simultaneously it should not be excessive or extortionate and affect the living condition of the husband and considering the young age of the opp. party-wife and that she has to meet any kind of man-made misfortune in future, we are of the view that direction to the petitioner-husband to pay Rs. 2 lakhs (Rupees two lakhs only) as one time alimony to the opposite party-wife as was fixed by the leaned trial Judge can be said to be quite reasonable in the ends of justice. 11. Accordingly, we do not find any illegality or impropriety in the impugned order dated 24.09.2009 passed by the learned Judge, Family Court, Cuttack in Misc. Case No. 277 of 2008. In the result, MATA application stands dismissed. No order as to costs.