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2015 DIGILAW 85 (CAL)

Anirban Sen v. Sreyashi Das (Sen) alias Mani

2015-02-03

JYOTIRMAY BHATTACHARYA, TAPASH MOOKHERJEE

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JUDGMENT JYOTIRMAY BHATTACHARYA, J. Mr. Mahata, learned advocate appearing for the husband/appellant submits that the deficit court fees of Rs.20/- has been deposited by his client vide Filing No. A-1716 dated 3.2.2015. The defect as pointed out by the Additional Stamp Reporter in his report is thus rectified. While considering the respondent’s application under Section 24 of the Hindu Marriage Act, we have considered the merit of the appeal. The husband/appellant filed a suit for divorce against the wife/respondent. After filing written statement by the wife/respondent in the said suit, issues were framed by the Learned Trial Judge on 5th October, 2012. After the issues were framed in the said suit, the husband/appellant filed an application before the Learned Trial Judge for framing additional issue in the said suit. His prayer was rejected. Hence, the husband/appellant filed a revisional application before this Court challenging the said order by which his prayer for framing additional issue was rejected by the Learned Trial Judge. The said revisional application being C.O. 1893 of 2013 was entertained by this Court and an order was passed staying further proceeding of the suit during pendency of the revisional application. The said revisional application was ultimately allowed by this Court on 30th July, 2013. Pursuant to the order passed by this Court in the said revisional application, additional issue was framed by the Learned Trial Judge on 26th November, 2013. Thereafter, the suit was fixed for hearing on 31st January, 2014. On that date, the husband/appellant sought for an adjournment on the ground that as he fell in the toilet on the previous night, he was unable to walk freely as he was suffering from pain. Such prayer for adjournment was rejected by the Learned Trial Judge as the Learned Trial Judge found that on the previous day i.e. on 30th January, 2014, the husband/appellant attended the Court to put his signature before the Notary Public for swearing affidavit. Thus considering such conduct of the husband/appellant, the Learned Trial Judge held that he was not inclined to proceed with the case anymore. His prayer for adjournment was rejected and simultaneously by the selfsame order, the suit was also dismissed for non-prosecution without cost. The legality and/or propriety of the said order is under challenge in this appeal at the instance of the husband/appellant. His prayer for adjournment was rejected and simultaneously by the selfsame order, the suit was also dismissed for non-prosecution without cost. The legality and/or propriety of the said order is under challenge in this appeal at the instance of the husband/appellant. On perusal of the materials on record including the order impugned, we find that the reasons for his non-appearance and/or for not taking any step in the suit during the period from 20th December, 2012 till 30th July, 2013 have been sufficiently explained by the appellant. In fact, the proceeding in the suit before the Learned Trial Court was stayed during the major part of the said period. As such, his non-appearance during the said period cannot be held to be unjustified. However, having regard to the fact that sufficient evidence was not brought on record to show his illness which prompted the appellant to file an application for adjournment on 31st January, 2014, we hold that the Learned Trial Judge was not absolutely unjustified in refusing to grant adjournment. However while rejecting the appellant’s application for adjournment, the Learned Trial Judge, in our view, ought not to have dismissed the suit itself without granting some reasonable time to the appellant to participate in the trial of the suit. Having regard to the fact that the suit was also dismissed by the selfsame order by which the appellant’s prayer for adjournment was rejected, we hold that the impugned order of dismissal of the suit suffers from infirmity and as such, we set aside that part of the impugned order by which the suit was also dismissed for non-prosecution by the Learned Trial Judge subject to payment of cost of Rs.10,000/- (rupees ten thousand only) to be paid by the husband/appellant to the wife/respondent within a week from date. In case, the wife/respondent refuses to accept such payment of cost, the husband/ appellant will be at liberty to deposit the cost amount to the credit of the wife/respondent in the court below. It is thus clarified that in the event such cost is paid within the time fixed above, the Learned Trial Judge will try the suit afresh from the stage where it was left immediately before dismissal of the suit. The appeal is thus allowed. It is thus clarified that in the event such cost is paid within the time fixed above, the Learned Trial Judge will try the suit afresh from the stage where it was left immediately before dismissal of the suit. The appeal is thus allowed. Re: CAN 11436 of 2014 (appropriate order) In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the application for appropriate order filed by the husband/appellant. The said application being CAN 11436 of 2014 is thus deemed to be disposed of. Re: CAN 12557 of 2014 (application for maintenance) Having regard to the fact that the appeal is disposed of, we are not passing any order on the respondent’s application for maintenance under Section 24 of the Hindu Marriage Act. In case, the wife/respondent feels that any revision is necessary, she may approach the Learned Trial Judge with proper application and if such application is filed by the wife/respondent before the Learned Trial Judge, the Learned Trial Judge will consider and dispose of the same according to his own wisdom. The application for maintenance under Section 24 of the Hindu Marriage Act filed by the wife/respondent being CAN 12557 of 2014 is thus disposed of.