Calcutta High Court (Appellete Side)
Rita Adhikary vs The State Of West Bengal & Anr on 4 April, 2022
D/L8 C.R.R. No.4024 of 2017
April 4, With
CRAN 2 of 2019 (Old CRAN 2567 of 2019)
Bpg.
Rita Adhikary
Versus
The State of West Bengal & Anr.
Ms. Jharna Biswas.
...for the applicant in CRAN 2567 of
2019/opposite party no.2 in CRR4024 of 2017.
Mr. Supratik Basu,
Ms. Samata Charri,
Mr. Shuvam Shaw.
...for the opposite party no.2 in CRAN
2567 of 2019/petitioner in CRR 4024 of 2017.
Re: CRAN 2 of 2019 (Old CRAN 2567 of 2019)
An application for recalling and/or modification of the
judgment and order dated 02.07.2019 passed in CRR 4024 of 2017
has been filed at the instance of the applicant one Rita Adhikary.
Record reflects that the learned Magistrate in C. Case
No.812 of 2010 (T.R. No.461 of 2005) was pleased by judgment
dated 25th May, 2017 to allow the application under Section 12 of
the Protection of Women from Domestic Violence Act with certain
directions including monetary relief of Rs.10,000/- per month.
Ms. Biswas, learned advocate appearing for the applicant
submits that the spirit and tenor of the judgment dated 02.07.2019
in CRR 4024 of 2017 was based on the foundation that there was
no affidavit enclosed along with the application under Section 12 of
the Protection of Women from Domestic Violence Act. The order of
the learned Magistrate reflects that after full-fledged evidence was
completed, the learned Magistrate arrived at his own conclusion.
As such, the issue of affidavit, if not raised at the earliest point of
time, should not have been a prime consideration for setting aside
the judgment which was arrived at after whole evidence was
complete. It would be a full repeated exercise if the parties are sent
back and asked to repeat the same set of things.
It has been emphatically submitted by the learned
advocate appearing for the applicant, Rita Adhikary that there is an
affidavit already available on records before the learned Magistrate
and so far as the same is concerned the document was not before
the Hon'ble Judge who decided the matter.
Be that as it may, the only issue remains is whether an
affidavit was accompanying the application under Section 12 of the
Protection of Women from Domestic Violence Act, 2005. In case the
learned Magistrate finds that in the original application under
Section 12 of the Protection of Women from Domestic Violence Act,
2005 there is an affidavit existing in the records, the learned
Magistrate would after issuing notice to both parties and a hearing
on the issue whether affidavit was there or not there in the records
reconsider the issue. In case, the learned Magistrate finds that the
affidavit was there on records, the learned Magistrate would be at
liberty to continue directing payment of sum of Rs.10,000/- per
month which was granted as a monetary relief and was stalled
because of the order of the Hon'ble High Court on 02.07.2019.
As the learned advocates representing both the parties
are present, I direct that both the parties should appear before the
learned Judicial Magistrate, 6th Court, Sealdah on 19th April, 2022
when the learned Magistrate would fix subsequent dates for
continuation of the issue which will be placed before the said court.
With the aforesaid observations, CRAN 2 of 2019 (Old
CRAN 2567 of 2019) is disposed of.
Let the lower court records be sent back to the learned
Judicial Magistrate, 6th Court, Sealdah within a week from date.
Department is directed to take urgent necessary steps for
forwarding the records.
All parties shall act on the server copy of this order duly
downloaded from the official website of this Court.
Urgent photostat certified copies of this order, if applied
for, be given to the parties upon compliance of all requisite
formalities.
(Tirthankar Ghosh, J.)
