Calcutta High Court (Appellete Side)
Smt. Gopa Sengupta (Nee Das) vs Sri Shankha Sengupta & Ors on 6 December, 2022
S/L 64
06.12.2022
Court. No. 12
Suvayan
CO 1860 of 2022
With
IA No: CAN 1 of 2022
(Application not here)
Smt. Gopa Sengupta (nee Das)
Vs.
Sri Shankha Sengupta & Ors.
Mr. Sounak Bhattacharyya
...for the petitioner.
Ms. Shohini Chakraborty
Ms. Prajaaini Das
...for the caveator/opposite party.
Learned Advocate for the petitioner and the
learned Advocate for the opposite party are present.
In the instant revisional application as filed under
Article 227 of the Constitution of India the petitioner/wife
has challenged the legality and veracity of the Order No.
32 dated 07.05.2022 as passed in Misc. Case No. 241 of
2021 arising out of Matrimonial Suit No. 2280 of 2019 as
passed by learned Additional District Judge, 13th Court,
Alipore, District - South 24 Parganas.
By the impugned order learned Trial Court struck
out the defence of the present petitioner/wife for non-
filing of her affidavit of asset in view of the mandate of the
reported decision (2021) 2 SCC 324 (Rajnesh Vs. neha &
Anr.) as passed by the Hon'ble Apex Court while
disposing of Criminal Appeal No. 730 of 2020 on
04.11.2020.
In support of the instant revisional application
learned Advocate for petitioner/wife at the outset draws
2
attention of this Court to the impugned order. Attention
of this Court is also drawn to the petition for strking out
the defence as filed by the present respondent
No.1/husband before the learned Trial Court and the copy
of the written objection as filed by the present
petitioner/wife as against the said petition before the
Trial Court. It is submitted that while passing the
impugned order learned Trial Court misconstrued the
mandate of the Hon'ble Apex court as passed in the case
of Rajnesh (Supra) and, thus, unnecessarily strike out the
defence of the present petitioner without visualizing the
predicament of the petitioner/wife in filing her affidavit of
asset before the learned Trial Court. It is contended
further that the learned Trial Court while passing the
impugned order also failed to appreciate that at the
material time the learned Advocate for the present
petitioner/wife was suffering from COVID-19 which is
why the affidavit of asset could not be filed by her within
the specified time. It is, thus, submitted this is a fit case
for setting aside the impugned order by allowing the
instant revisional application.
While opposing the contention of the learned
Advocate for the petitioner/wife, learned Advocate for
respondent No. 1/husband also draws attention of this
Court to the impugned order. It is contended by her that
learned Trial Court while passing the impugned order
rightly noticed that there were intentional latches on the
part of the petitioner/wife in filing her affidavit of asset.
It is also submitted that in the impugned order
learned Trial Court has elaborately discussed the ill
conduct of the petitioner/wife only with the intention to
drag the proceeding. It is, thus, submitted that the
present revisional application may be rejected.
This Court has meticulously gone through the
impugned order as passed by the learned Trial Court.
This court has also perused the opposite party No.
1/husband's application for striking out the defence of the
present petitioner as filed before the learned Trial Court
as well as the written objection as filed by the
petitioner/wife before the learned Trial Court. This Court
has given its anxious consideration over the submissions
of learned Advocates for both sides.
On perusal of the certified copy of the impugned
order it reveals to this Court that there is no doubt that
while passing the impugned order learned Trial Court has
correctly observed that in spite of getting several
opportunities since the date of her appearance in the said
suit, the petitioner/wife for some reason or order did not
file her affidavit of asset. Admittedly learned conducting
Advocate for the present petitioner/wife before the
learned Trial Court was suffering from COVID-19 but
learned Trial Court has rightly observed that the delay
occurred in between 01.03.2022 and 06.04.2022 remain
unexplained. However, keeping in mind the spirit of the
aforesaid reported judgment of Rajnesh (Supra), this
Court considers that justice would be sub-served if the
present petitioner/wife is granted an opportunity to file
her affidavit as to asset within a shortest specified date,
however, subject to certain terms.
In view of such, the instant revisional application is
allowed. The impugned Order No. 32 dated 07.05.2022
as passed in Misc. Case No. 241 of 2021 arising out of
Matrimonial Suit No. 2280 of 2019 as passed by learned
Additional District Judge, 13th Court, Alipore is hereby set
aside.
Consequently, the petition for striking out the
defence of the present petitioner/wife stands hereby
rejected on contest. The present petitioner/wife is hereby
directed to file her affidavit as to asset within seven days
from the date of passing of this order and she is further
directed to pay cost of Rs. 15,000/- out of which Rs.
7,500/- is to be paid to the opposite party No. 1/husband
and the remaining of Rs. 7,500/- is to be paid with
Secretary District Legal Service Authority, South 24
Parganas. It is further ordered that the cost as imposed
by this Court shall also have to be paid within six days
from the date of passing of this order and the receipt
showing payment of such cost shall have be filed along
with a list of document before the learned Trial Court
within seven days from the date of passing of this order.
It is further directed that learned Trial Court shall not
accept the affidavit of asset of the present petitioner/wife
unless the cost as directed is paid or deposited.
It is also made clear that in the event that the cost
is not paid within the specified time or the affidavit of
asset is not filed as directed by this Court within the time,
it will be presumed that no favourable order has been
passed in this revisional application in favour of the
present petitioner/wife.
Accordingly, CO 1860 of 2022 along with interim
application CAN 1 of 2022 are disposed of.
Urgent photostat certified copies of this order, if
applied for, be supplied to the parties upon compliance
with all the necessary formalities.
(Partha Sarathi Sen, J.)
