Jharkhand High Court
Md. Afroz Alam vs Arfiya Khatoon on 20 September, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
FA No. 14 of 2019
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Md. Afroz Alam, son of Md. Eqbal Ansari @ Akbal Ansari, resident of
village Samaldih, PO Basodih, PS Satgawan, District Koderma
... .... Appellant/Plaintiff
Versus
Arfiya Khatoon, wife of Md. Afroz Alam, resident of village Samaldih, PO
Basodih, PS Satgawan, District Koderma, at present residing at village
Samaldih, PO Basodih, PS Satgawan, District Koderma
.... .... Opposite Party/Defendant
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant(s) : Mr. Shree Nivas Roy, Advocate
For the Respondent : Mrs. Rashmi Kumar, Advocate
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ORDER
th
20 September 2022
Per, Shree Chandrashekhar,J.
This First Appeal has been filed against the judgment dated
31st July 2018 passed in Original Suit No. 68 of 2017.
2. The Original Suit No. 68 of 2017 was filed by the husband of Arfiya
Khatoon under section 281 of Mohammedan Law to bring forth his matrimonial
cause for restitution of conjugal rights.
3. In the judgment dated 31st July 2018, the Principal Judge, Family
Court, Koderma dealt with evidence laid by the appellant through six witnesses.
4. The learned Principal Judge, Family Court, Koderma has also
considered evidence of the witnesses produced by the wife during the trial of
Original Suit No. 68 of 2017.
5. The learned Family Court Judge has also referred to the judgments in
"Itwari v. Asghari" AIR 1960 Allahabad 684; "Moonshee Buzloor Ruheem v.
Shumsoonnissa Begum" (1866-67) 11 Moo Ind App 551 (PC), and; "Anis Begum v.
Muhammad Istafa Wali Khan" AIR 1933 All 634 to arrive at a conclusion that
Original Suit No. 68 of 2017 cannot be decreed in favour of the husband.
6. In the proceeding of the present First Appeal, the parties expressed
their inclination to engage in mediation exercise and, accordingly, by an order
dated 22nd January 2020 they were directed to approach the Mediator, JHALSA
within four weeks subject to the condition that the appellant shall pay Rs. 3,000/-
to his wife for her travelling and other incidental expenses.
7. Unfortunately, the mediation between the parties has failed and, at the
same time, the appellant did not pay cost of Rs. 3,000/- for one date to the
respondent.
8. On 16th March 2020, on instructions from the appellant, Mr. Shree
Nivas Roy, the learned counsel for the appellant, made a statement in the Court
that cost of Rs. 3,000/- shall be paid to the respondent within one week.
9. The order of the Court was not complied with by the appellant.
10. Mr. Shree Nivas Roy, the learned counsel for the appellant, states that
since whereabouts of the respondent could not be traced by that time the cost of
Rs. 3,000/- was not paid to her.
11. On 9th July 2020, the following order was passed by this Court:
09/09.07.2020 Mr. Shree Nivas Roy, learned counsel for the
appellant seeks 3 weeks' time to ensure that payment of Rs.3000
due as cost of mediation is made to the respondent through her
counsel Ms. Rashmi Kumar in compliance of the order dated
16.03.2020.
Matter has already been admitted on 16.03.2020 and
Lower Court Record has also been received. Let the case be listed
under the heading for hearing as per its age.
12. Thereafter on 14th September 2022 this matter came up on Board for
hearing. However, at the request of the learned counsel for the appellant, the
hearing of this appeal was adjourned for today.
13. On a Court's query, Mr. Shree Nivas Roy, the learned counsel for the
appellant, makes a statement in the Court that he could not receive any instruction
from the appellant as regards payment of cost of Rs. 3,000/-.
14. Under section 35-B of the Code of Civil Procedure, payment of cost
on the next date following the date of such order is a condition precedent for
further prosecution of the suit by the plaintiff.
15. Relevant portions of sub-section (1) to section 35-B of the Code of
Civil Procedure are extracted as under:
35-B. Costs for causing delay.--
(1).......................................................................................................
the Court may, for reasons to be recorded, make an order requiring
such party to pay to the other party such costs as would, in the
opinion of the Court, be reasonably sufficient to reimburse the
other party in respect of the expenses incurred by him in attending
the Court on that date, and payment of such costs, on the date next
following the date of such order, shall be a condition precedent to
the further prosecution of--
(a) the suit by the plaintiff, where the plaintiff was ordered to pay
such costs,
(b) the defence by the defendant, where the defendant was ordered
to pay such costs.
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16. Since cost of Rs. 3,000/- has not been paid by the appellant, the
present First Appeal is dismissed in default.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 20th September, 2022
SB/Nibha-NAFR
