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2017 DIGILAW 1493 (GAU)

Lakhi Boruah v. Bijumoni Boruah

2017-12-01

A.K.GOSWAMI

body2017
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. N. Dhar, learned counsel for the petitioner. By this application under Article 227 of the Constitution of India filed on 22.9.2017, the petitioner seeks to challenge the order dated 8.9.2016 passed by the learned District Judge, North Lakhimpur, in Misc. (J) Case No. 8/2016. 2. The relevant portion of the prayer made in this petition reads as follows: "A. To pass an order in setting aside the impugned order dated 8.9.2016 passed by the learned District Judge, Lakhimpur, in Misc. (J) Case No. 8 of 2016 awarding compensatory costs upon the petitioner, and/or B. To pass an order in directing the learned District Judge, Lakhimpur, to decide the Misc. (J) Case No. 6 of 2015 filed by the opposite party u/s. 20(3) of the Hindu Adoption and Maintenance Act, 1956, as to the maintainability of the aforesaid misc. case in accordance with the law; and/or C. to pass such further and other orders shall not be passed as your Lordship may deem fit and proper under the facts and circumstances of the case in the interest of justice." 3. The respondent of this petition is the daughter of the petitioner who had filed a petition under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956, which was registered as Misc. (J) Case No. 6/2015. 4. A perusal of the order dated 18.12.15, passed by the learned District Judge, Lakhimpur in Misc. (J) Case No. 6/2015 goes to show that the respondent has no source of income and that though she is studying in Harhi College, due to financial constraints she had lost two of her academic years. It is stated therein that the petitioner is a Constable in Assam Police getting a salary of about Rs. 25,000/- and he has an annual income of about Rs. 80,000/- through cultivation. 5. By the order dated 18.12.2015 passed in Misc. (J) Case No. 6/2015, the learned District Judge, Lakhimpur allowed the petition awarding maintenance at the rate of Rs. 4,000/- per month payable by the respondent from the date of filing of the instant petition till she gets married or until further orders. 6. The petitioner had filed an application under Order 9 Rule 13 read with Section 151 CPC being Misc. (J) Case No. 8/2016 for setting aside the ex parte judgment and decree dated 18.12.2015 passed in Misc. 6. The petitioner had filed an application under Order 9 Rule 13 read with Section 151 CPC being Misc. (J) Case No. 8/2016 for setting aside the ex parte judgment and decree dated 18.12.2015 passed in Misc. (J) No. 6/2015. Though the report of the process server had indicated that the petitioner had refused to accept notice, because of procedural lapses on the part of the process server, the ex parte decree was set aside with a cost of Rs. 25,000/-. The operative portion of the order dated 8.9.2016 reads as follows: "Accordingly, while allowing the instant petition of Misc. Case No. 8/2016, this court awards an amount of Rs. 25,000/- (Rupees twenty five thousand) only as cost to the Opposite Party here-in i.e., the petitioner in Misc. (J) Case No. 6/2015. The aforesaid cost shall be paid by Sri Lakhi Baruah, the Petitioner here-in and he is directed to enter appearance in Misc. (J) Case No. 6/2015 on 03.11.2016, on which date, the Petitioner here-in shall deposit the cost of Rs. 25,000/- (Rupees twenty five thousand) only before this court. The Misc.(J) Case No. 6/2015 be proceeded if the cost amount is paid by the Petitioner herein to the Opposite Party here-in, and in case of non-compliance, the instant Misc. (J) Case No. 8/2016 shall be deemed to have been dismissed." 7. In terms of the order dated 8.9.2016, the petitioner was required to deposit Rs. 25,000/- on 3.11.2016 towards cost. It was made clear in the said order that in case of non-compliance or failure to deposit the cost, Misc. (J) case No. 8/2016 shall be deemed to have been dismissed. 8. Though not forming part of the record, Mr. Dhar has handed over a certified copy of the order sheet of the court of the learned District Judge, Lakhimpur. 9. A perusal of the order sheet goes to show that while the respondent was present on 3.11.2016, the petitioner was absent. No deposit was also made by the petitioner in terms of the order dated 8.9.2016. 10. In view of the order passed on 8.9.2016 and due to non-deposit of cost of Rs. 25,000/-, the Misc. (J) Case No. 8/2016 stood dismissed and the order dated 18.12.15 passed in Misc. (J) Case 6/2016 came into force;. No deposit was also made by the petitioner in terms of the order dated 8.9.2016. 10. In view of the order passed on 8.9.2016 and due to non-deposit of cost of Rs. 25,000/-, the Misc. (J) Case No. 8/2016 stood dismissed and the order dated 18.12.15 passed in Misc. (J) Case 6/2016 came into force;. The petitioner had not also paid the maintenance amount awarded till date despite being aware of the fact that the order dated 18.12.2015 required him to deposit Rs. 4,000/- a month. The order dated 20.5.2017 of the learned court below goes to show that the petitioner had to pay Rs. 72,000/-. It was only on 20.10.2017 that the petitioner appeared before the Court of the learned District Judge, North Lakhimpur to file a petition to inform about filing of this case before this Court. 11. There is no challenge to the order dated 18.12.2015 in this petition except mentioning in the prayer portion that a direction be issued to the learned District Judge, Lakhimpur to decide the maintainability of Misc. (J) Case No. 6/2015. Unless a challenge is made to the order dated 18.12.2015 passed in Misc. (J) Case No. 6/2015 and the same is sustained, there cannot arise any occasion for a direction as prayed for by the petitioner. Having regard to the facts and circumstances of the case, I am of the considered opinion that no case is made out for interference with the order dated 8.9.2016. Accordingly, the petition is dismissed.