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2016 DIGILAW 726 (ORI)

GURUBARI NAIK v. JYOCHHANA NAIK

2016-08-31

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. - Heard learned counsel for the petitioner. 2. This is an application filed by the petitioner Gurubari Naik, who is the husband of the opposite party No. 1, Jyochhana Naik and father of opposite parties Nos. 2 and 3 challenging the order dated 24.06.2016 passed by the learned J.M.F.C., Nayagarh in C.M.C. No. 33 of 2015 in awarding maintenance in favour of the opposite parties in an application under Section 125 of Cr.P.C. 3. On perusal of the impugned order, it appears that as the petitioner did not appear and file his show cause, he was set ex parte vide order dated 15.10.2015. On 10.02.2016 the counsel of the petitioner filed a petition to set aside the ex parte order and accordingly, on 14.04.2016 the petitioner was allowed to contest the case subject to payment of cost of Rs. 500/- (rupees five hundred only) but as on 27.05.2016 the petitioner did not pay the cost nor appeared in the proceeding and no step was taken on his behalf, he was again set ex parte and thereafter, the impugned order was passed. 4. Learned counsel for the petitioner contended that at no point of time, after the first ex parte order was set aside by the learned J.M.F.C., Nayagarh, the counsel engaged by the petitioner intimated him about the position of the case for which the petitioner could not take steps and he was set ex parte for the second time. Learned counsel for the petitioner further contended that the petitioner has sufficient grounds to convince the learned Magistrate that opposite parties are not entitled to get any maintenance. He further submits that the petitioner is ready and willing to deposit the entire maintenance amount as per the impugned order passed by the learned J.M.F.C., Nayagarh as well as the cost imposed on him. 5. Since the petitioner is ready and willing to pay the entire monthly maintenance amount as per the award passed by the learned J.M.F.C., Nayagarh along with cost which was imposed on him vide order dated 14.04.2016, I am of the view that another opportunity should be provided to the petitioner to contest the case. If notice is issued in the matter to the opposite parties, there is every likelihood of delay in disposal of proceeding. Therefore, the impugned order dated 24.06.2016 is set aside subject to deposit of Rs. If notice is issued in the matter to the opposite parties, there is every likelihood of delay in disposal of proceeding. Therefore, the impugned order dated 24.06.2016 is set aside subject to deposit of Rs. 6000/- (six thousand only) towards the maintenance amount and additional amount of Rs. 500/- (five hundred only) towards the cost, in total Rs. 6500/- (six thousand five hundred only) by the petitioner by 09.09.2016. In case such an amount is deposited by the petitioner within the stipulated period, the same shall be disbursed immediately to the opposite party No. 1 on appropriate application. Thereafter, the petitioner will be provided an opportunity to file his show cause by 16.09.2016 and to cross-examine the two witnesses already examined by the opposite parties. If the opposite parties want to adduce any further evidence, opportunity should be provided to them by the learned J.M.F.C., Nayagarh. The petitioner will also be given an opportunity to adduce his evidence thereafter. After hearing the respective parties, the learned J.M.F.C., Nayagarh shall pass final order and till the final order is passed, the petitioner shall go on paying the interim maintenance to the opposite parties at the rate fixed in the impugned order. The entire exercise should be completed by the end of October, 2016. It is made clear that if the petitioner does not pay the maintenance amount in time or fail to file the show cause in time as stipulated above or does not come forward to cross-examine the witnesses of the opposite parties then the learned J.M.F.C., Nayagarh is at liberty to proceed against the petitioner in accordance with law.