Rohit Kumar Ekka vs Unknown
2021 Latest Caselaw 11394 Ori

                    HIGH COURT OF ORISSA : CUTTACK
                                      SAO No.1 of 2021


            In the matter of appeal under Section-100 of the Code of Civil
      Procedure assailing the judgment and decree dated 22.01.2021 passed
      by the learned District Judge, Sundargarh in MAT Appeal No.1 of 2018.
                                       .........

             Rohit Kumar Ekka                                      ::::    Appellant.
                                        -:: VERSUS ::-
             Ambika Kishan                                         ::::    Respondent.

Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.

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For Appellant ... Mr. Rabi Narayan Behera, Advocate For Respondent ... None

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PRESENT:

THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing and Judgment: 08.11.2021

--------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Order 43 Rule 1(u) of

the Code of Civil Procedure (for short, 'the Code') has assailed the

judgment dated 22.01.2021 passed by the learned District Judge,

Sundargarh in MAT Appeal No.1 of 2018.

{{ 2 }}

The Appellant being the Petitioner had filed an application under

section 13(1)(i-a) of the Hindu Marriage Act, 1955 for dissolution of his

marriage with the Respondent-Opposite Party. That application having

been allowed ex parte by dissolving the marriage between the parties,

the Respondent had carried the Appeal. The Appellate Court after

hearing and on going through the record having set aside the ex parte

order of dissolution of marriage between the parties, has remanded the

matter to the Trial Court permitting the Respondent to file the written

statement for its consideration and directing the Trial Court to decide

the matter afresh in accordance with law by further providing the parties

to lea evidence and argue their case.

2. Learned counsel for the Appellant submits that the Trial Court

having taken the pain in sending, notice to the Respondent on several

occasions did commit no mistake in passing the ex parte order when the

Respondent being adamant refused to receive the notice. He further

submits that the very move of the Respondent from the beginning was to

protract the matter without having intention as to reunion or disposal on

merit and under the given situation, the Lower Appellate Court is thus

not correct in further remanding the matter. He also submits that the

view taken by the Lower Appellate Court that the Respondent refusing {{ 3 }}

to accept the notice had nothing to gain in the facts and circumstance is

not right when in reality the purpose was to harass the Appellant which

has not been taken note of. He therefore urges for admission of the

Appeal formulating the above substantial questions of law.

3. Keeping in view the submissions made, the impugned judgment

in the Appeal being perused, paragraph-8 appears to be relevant for the

purpose.

The Trial Court has allowed the application filed by the Appellant

for his dissolution of marriage with the Respondent ex parte. The

Respondent had been said ex parte therein on the basis of the report of

the process server that she refused to receive the notice of the

proceeding. Judgments of the courts below do not reveal that while

sending the notice to the Respondent through the process of the court

simultaneously notice through registered post had also been sent. The

Respondent as is seen has challenged that ex parte order without any

such gross delay.

In that situation, the Lower Appellate Court having taken a view

that by refusing to accept the notice the Respondent who is a working

woman had nothing to gain and thus has made out a case for being given

an opportunity to contest the case before the Trial Court afresh; this {{ 4 }}

Court is not in a position to accept the submission of the learned counsel

for the Appellant that any substantial question of law surfaces meriting

admission of this Appeal.

4. Accordingly, the Appeal stands dismissed. No order as to cost.

(D. Dash), Judge.

Aksethy