Allahabad High Court
Shailendra Kaushik vs Parul Sharma on 14 November, 2022
Bench: Surya Prakash Kesarwani, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 3
Case :- FIRST APPEAL No. - 704 of 2022
Appellant :- Shailendra Kaushik
Respondent :- Parul Sharma
Counsel for Appellant :- Ram Shiromani Yadav
Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Rajendra Kumar-IV,J.
Heard Sri Krishna Kant Yadav (Advocate Roll No.A/K 0285/2012) holding brief of Sri Ram Shiromani Yadav, learned Counsel for the Defendant/appellant.
On 29.09.2022, this Court passed the following order:-
"Heard Sri Vimal Kumar holding brief of Sri Ram Shiromani Yadav, learned counsel for the defendant - appellant.
This appeal has been filed praying to set aside the judgment and decree dated 08.07.2022 in Matrimonial Case No.149 of 2021 (Parul Sharma Vs. Shailendra Kaushik), passed by the Additional Principal Judge, Family Court, Moradabad, whereby the marriage has been dissolved on the ground of cruelty by the defendant - appellant.
Perusal of the impugned judgment shows that more than sufficient opportunities were provided to the defendant - appellant by the court below but the defendant - appellant deliberately did not file even written statement. After the evidences were closed then the defendant - appellant filed written statement alongwith recall application (paper No.27 Ga) on 25.05.2022 whereas the date was fixed for argument for 01.07.2022.
It appears from record of this appeal that even no amount towards maintenance to the plaintiff - respondent and the minor daughter, has been paid by the defendant - appellant. From the records it also appears that defendant - appellant is or has been in Government Service. The court below has also observed that the defendant - appellant is making effort to delay the disposal of the case. The order for payment under Section 125 Cr.P.C. has also not been complied with. Recall application 27 Ga was rejected by a detailed order dated 01.07.2022.
Learned counsel for the appellant submits that impugned judgment and decree is ex parte and, therefore, one opportunity may be afforded to the appellant to contest the case before the court below.
We have carefully considered the submissions of learned counsel for the defendant - appellant. We find that the defendant - appellant appeared personally in the aforesaid case on 03.03.2021 and obtained copies of relevant documents and 03.04.2021, 13.05.2021, 29.07.2021 and 20.09.2021 were fixed for filing of written statement but the defendant - appellant did not file it. Again on 11.11.2021, 25.11.2021, 09.12.2021 and 20.12.2021 were fixed for filing the written statement but despite appearing in Court, the defendant - appellant did not file written statement. Effort for reconciliation also failed. Therefore, on 20.12.2021 ex - parte proceedings were drawn in presence of the defendant - appellant and the next date i.e. 21.01.2022 was fixed for evidence. After several dates, the defendant - appellant filed a recall application on 07.04.2022 and still did not file any written statement alongwith recall application. Therefore, the court below directed him to file recall application alongwith written statement by 05.05.2022. On 05.05.2022, the defendant- appellant filed an adjournment application 29 Ga showing inability to file written statement. The adjournment application was rejected by the court below giving him time to file written statement after lunch hours. However, the defendant - appellant still had not filed written statement. The plaintiff - respondent completed his evidence on 25.05.2022 and the date was fixed for argument for 01.07.2022. Thereafter, the defendant - appellant filed recall application 27 Ga on 25.05.2022 alongwith written statement which was rejected by the court below by a detailed reasoned order dated 01.07.2022.
Looking into the conduct of the defendant - appellant as briefly noted above and also the fact that he is not even paying any amount to the plaintiff - respondent and his minor daughter despite orders under Section 125 Cr.P.C., we direct the defendant - appellant to deposit a sum of Rs.50,000/-within three weeks from today with the Registrar General of this Court to show his bonafide. The amount so deposited shall be paid to the plaintiff - respondent to contest this case.
Put up as a fresh case on 20.10.2022 on which date the defendant - appellant shall also file copies of orders under Section 125 Cr.P.C. or other orders providing for interim maintenance to the plaintiff - respondent and the minor daughter and shall also disclose in his affidavit as to whether the entire amount for interim maintenance etc. as directed by competent court, have been paid by him or not. "
On 20.10.2022, the case was adjourned on the request of learned Counsel for the appellant. Again, by order dated 21.10.2022, the case was adjourned on the request of learned Counsel for the appellant and two weeks further time was granted to the appellant to comply with the order dated 29.09.2022 by depositing a sum of Rs.50,000/- with the Registrar General of this Court.
Today, learned Counsel for the appellant states that the appellant could not deposit the amount as directed by order dated 29.09.2022 to show his bonafide. He further states that appellant shall not deposit the aforesaid amount.
In view of the aforesaid, the appeal is dismissed due to non compliance of the order dated 29.09.2022 and defendant-appellants failure to show his bonafide.
Order Date :- 14.11.2022
I.A.Siddiqui
