Karnataka High Court

Nikita W/O Devidas Rathod vs Devidas S/O Govind Rathod on 13 December, 2023

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                     WP No.201372 of 2023




                              IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                       DATED THIS THE 13TH DAY OF DECEMBER, 2023

                                          BEFORE
                     THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR


                          WRIT PETITION NO.201372 OF 2023 (GM-CPC)
                   BETWEEN:

                   NIKITA W/O DEVIDAS RATHOD,
                   AGE: 30 YEARS, OCC: HOUSE WIFE,
                   R/O C/O SURESH NAIK, ACC LTD.
                   RAILWAY STATION, NEAR BANJARA NAGAR,
                   ANJANEYA TEMPLE,
                   SHAHABAD, TQ: CHITTAPUR,
                   DIST: KALABURAGI.

                                                             ...PETITIONER

                   (BY SMT ARUNA P. CHAVAN, ADVOCATE)

                   AND:

Digitally signed   DEVIDAS S/O GOVIND RATHOD
by SACHIN
                   AGE: 38 YEARS, OCC: TEACHER,
Location: HIGH
COURT OF           R/O NEAR MOUNESHWAR TEMPLE,
KARNATAKA          KUSNOOR ROAD,
                   KALABURAGI-585 101.

                                                            ...RESPONDENT

                   (BY SRI SUDHEER KULKARNI, ADVOCATE)

                        THIS WRIT PETITION IS FILED UNDER ARTICLES 226
                   AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
                   ISSUE A) A WRIT ORDER, OR DIRECTION IN NATURE OF
                   CERTIORARI SETTING ASIDE ORDER DATED 20.04.2023
                   PASSED IN O.S.NO.2/2020 BY THE HON'BLE DISTRICT JUDGE,
                   FAMILY COURT AT KALABURGI AT ANNEXURE-J; B) ISSUE A
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                                            WP No.201372 of 2023




WRIT IN THE NATURE OF DIRECTION OR A WRIT OF
MANDAMUS DIRECTING THE HON'BLE DISTRICT JUDGE,
FAMILY COURT AT KALABURAGI TO ALLOW THE ADJOURNMENT
APPLICATION DATED 17.04.2023 AT ANNEXURE-H AS PRAYED
FOR AND FURTHER DIRECTION TO DISPOSE OFF BOTH THE
PROCEEDINGS I.E., O.S.NO.2/2020 & M.C.NO.103/2022
SIMULTANEOUSLY AS IN BOTH THE CASES ISSUES ARE
INTERDEPENDENT IN ORDER TO AVOID CONFLICTING
DECISIONS AND ETC.


     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:


                               ORDER

Heard learned counsel for the petitioner and learned

counsel for the respondent.

2. This petition is filed by the petitioner seeking to

set aside the order dated 20.04.2023 passed in

O.S.No.2/2020 by the Family Court at Kalaburagi.

3. The respondent-husband filed a suit in

O.S.No.2/2020 for declaring the marriage between the

respondent and the petitioner as nullity and to declare that

she is not the legally wedded wife. In the said suit, the

petitioner was defendant, who has appeared and

contested the matter and during the stage of evidence, the

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petitioner made an application before the Court for leading

her evidence. The petitioner filed a memo along with the

medical certificate and sought for adjournment and the

same was rejected which is questioned before this Court.

In earlier occasion on 17.04.2023, the petitioner filed an

application under Section 151 of CPC seeking time. The

learned Trial Judge dismissed the application and posted

the matter for addressing the argument. The argument on

behalf of the plaintiff was addressed and the matter was

posted for argument of the defendant/petitioner, on which

date, i.e., on 19.04.2023 a memo came to be filed seeking

adjournment. The said memo came to be rejected, as

adjournment cannot be given on the memo and posted the

very next day i.e., on 20.04.2023, on which date, the

defendant's counsel again filed memo along with the

medical certificate seeking time which also came to be

rejected and the matter again posted for argument. By

taking the argument of the defendant/petitioner herein as

nil, the matter was posted for judgment. The petitioner

being aggrieved by the said order is before this Court.

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4. On perusal of the order sheet, it is seen that

the petitioner/defendant has been continuously taking

adjournment for one or the other reason and despite

imposition of the cost by the Trial Court, the petitioner has

not co-operated with the Court and has filed applications

for adjournments and memo seeking adjournments time

and again. This aspect has been noted by the Trial Judge

in the order sheet by stating that the case has been

adjourned at the instance of the petitioner from

28.09.2022.

5. Be that as it may, the memo is filed on

20.04.2023 along with the medical certificate of the

petitioner for grant of some time to lead the evidence of

the petitioner/defendant. There may be an error in filing

the memo and not following the Code of Civil Procedure

and the rules for filing an application for adjournment.

However, medical certificate was produced before the

Family Court. Under these circumstances, the petitioner

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seeks to set aside that order and provide one more

opportunity to lead her evidence.

6. Learned counsel for the respondent, who is the

plaintiff before the Family Court contends that the

petitioner has been deliberately prolonging and protracting

the matter from 2022 and has initially been successful in

taking adjournments. Now the matter is posted for

judgment, but she has not co-operated with the Court to

lead evidence and cross-examine the witnesses. This

being the facts and circumstances of the case, the

rejection of the memo by the Family Court is on the

ground that the adjournment cannot granted on the

memo. Technically, the Family Court may be right, but

the Trial Courts while dealing with the issues concerned

with the Family, have to take lenient view with regard to

conducting the case and not depend upon hyper-technical

approach in considering the grant of adjournments.

The fact remains that the petitioner has been taking

adjournments time and again and not co-operating with

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the Court which are borne from the order sheet of the

Family Court. It is also submitted across the bar that

during the pendency of the original suit, the petitioner has

filed a petition for a decree of divorce against the

respondent in M.C.No.103/2022 and obtained a decree of

divorce.

7. It is seen that in this petition the petitioner has

sought to set aside the order dated 20.04.2023 vide

Annexure - J rejection of the memo along with the medical

certificate, but on perusal of the order sheet, it is seen by

an order dated 19.04.2023, the learned Judge has

rejected the memo for adjournment and prior to that, an

application which was filed under Section 151 of CPC for

adjournment came to be rejected on 17.04.2023. Despite

all these antecedents of the case, the petitioner has not

bothered to seek a prayer to set aside the order of

rejection of the application for adjournment on 17.04.2023

and also adjournment on memo which was rejected on

19.04.2023. It is very unfortunate that despite bringing to

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the knowledge of the learned counsel, she insist that her

prayer made in 'B' in the writ petition should be

considered, wherein she sought writ of mandamus

directing the District Judge, Family Court, Kalaburagi to

allow the adjournment application dated 17.04.2023 at

Annexure - H. Unfortunately, it is the party who will be

put to difficulty due to non-filing of proper application

under the correct provisions of law. Hence, for proper

adjudication of the matter and to provide a last

opportunity to the petitioner to effectively contest her

case, exercising the discretionary powers under Article 226

of the Constitution of India, it is appropriate to permit the

petitioner to lead evidence. Accordingly, I pass the

following:

ORDER

(i) The petition is allowed in part.

(ii) The order dated 20.04.2023 in O.S.No.2/2020 passed by the District Judge, Family Court, Kalaburagi is hereby set aside subject to

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payment of cost of Rs.2,500/- payable to the respondent hereby before the Family Court which will be condition precedent to proceed further.

(iii) The order dated 17.04.2023 rejecting the application of the petitioner is set aside. The said application is allowed and the petitioner is permitted to lead evidence or cross-examine the respondent.

(iv) The order dated 19.04.2023 is also consequently set aside.

(v) The Family Court shall dispose of the matter within three months from the date of receipt of a certified copy of this order by providing opportunity to the petitioner to cross-examine the respondent and lead her evidence.