Dr. Anil Kumar Sahoo vs Chinmayee Sahoo
2022 Latest Caselaw 7522 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 W.P.(C) No. 35819 OF 2021
                 Dr. Anil Kumar Sahoo                  ....       Petitioner
                                        Mr. Kailash Chandra Kar, Advocate
                                         -versus-
                 Chinmayee Sahoo                             .... Opp. Party
                                                     Mr. Sailesh Dash, Advocate

                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                        ORDER

Order No.                              19.12.2022
   2.       1.      This matter is taken up through hybrid mode.

2. Mr. Sailesh Dash, learned counsel submits that he has already entered appearance on behalf of the sole Opposite Party on 22nd November, 2022 by filing Vakalatnama. But, his name does not appear in the case list.

3. This writ petition has been filed assailing the order dated 29th October, 2021 passed by learned Judge, Family Court, Cuttack in C.P. No.459 of 2015, allowing the Opposite Party to lead evidence in the matter.

4. Initially the present writ petition was allowed vide order dated 1st December, 2021 with the following order:

"1. Mr. Kar, learned advocate appears on behalf of petitioner and submits, his client has impugned order dated 29th October, 2021 passed by the Family Court in directing the divorce case to be put up for evidence from side of opposite party wife. He point out from orders of Court below that opposite Party was precluded to file written statement by order dated 21st November, 2017. Said order is quoted hereinbelow:

"Both parties are absent through advocates hariza for petitioner & petition for time to file W.S. is filed. None moves. OP is precluded to file W.S.. Put up on 9.1.18 for hearing."

2. He relies on rule 10 in order VIII of Code of Civil Procedure to submit, no evidence can be sought from party, who has not filed written statement.

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3. Court does not think it is necessary to issue notice. It is well settled that there cannot be any evidence not based on pleadings. Written statement not having been filed by opposite party and she precluded from filing the same, does not allow her to adduce or lead evidence. All that she can do is cross-examine plaintiff's witness or witnesses. Mr. Kar submits, his client's evidence was closed.

4. The Court below is directed to forthwith pronounce judgment on consideration of pleadings, evidence and argument, to be made before it, as mandated in the procedure provided under rule 10 in order VIII.

5. The writ petition is disposed of."

5. Since the order was passed without issuing notice to the Opposite Party, she filed Writ Appeal No.83 of 2022, which was also dismissed as withdrawn vide order dated 18th April, 2022. Subsequently, the Petitioner filed RVWPET No.270 of 2022, which was allowed vide order dated 22nd November, 2022 recalling the order dated 1st December, 2021 passed in W.P.(C) No.35819 of 2021. Accordingly, the matter is placed before this Bench for adjudication.

6. Mr. Kar, learned counsel for the Petitioner submits that at a juncture when Writ Appeal No.83 of 2022 was pending, learned trial Court vide order dated 4th April, 2022, accepted the written statement filed by the Opposite Party and posted the matter to 2nd May, 2022 for evidence of the Opposite Party. Assailing the same, the Petitioner preferred W.P.(C) No.12275 of 2022. After hearing learned counsel for the parties, this Court vide order dated 20th September, 2022 passed the following order:

"6. Taking into consideration the rival contentions of the parties and the materials placed, this Court is of the considered opinion that the order dated 1st December, 2021 passed in W.P.(C) No.35819 of 2021 although challenged in Writ Appeal No.83 of 2022, but the same was permitted to be dismissed as withdrawn on the submission of learned counsel for the Appellant (Opposite Party herein). Thus, it appears that the order dated 1st December, 2021 passed by the writ Court is not verified/modified. However, the order dated 4th April, 2022 was passed at that juncture when the

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writ appeal was not disposed of. Further, it appears that the writ appeal was dismissed as withdrawn. In that view of the matter, learned Judge, Family Court has committed judicial impropriety in accepting the written statement filed by the Opposite Party and posting the matter for her evidence. In view of the discussion made above, the impugned order under Annexure-1 is not sustainable and is hereby set aside."

The said order was never challenged and attained its finality. Hence, the Opposite Party may lead evidence without propounding her own case. He, therefore, submits that the writ petition may be disposed of modifying the impugned order to the aforesaid extent.

7. Mr. Dash, learned counsel for the Opposite Party submits that a close reading of the order dated 20th September, 2022 passed by this Court in W.P.(C) No.12275 of 2022 would reveal that the said order was passed taking into consideration that W.P.(C) No.35819 of 2021 was allowed and Writ Appeal assailing the same was dismissed as withdrawn. After that order dated 1st December, 2021 passed in W.P.(C) No.35819 of 2021 was called in question in RVWPET No.270 of 2022, which has been allowed. Hence, the order passed in W.P.(C) No.12275 of 2022 loses its significance. Hence, the said order has no effect on the impugned order. He, therefore, submits that since the written statement of the Opposite Party has already been accepted, she may be permitted to lead her evidence.

8. Taking into consideration the rival contentions of the parties and on perusal of the record placed, this Court is of the considered opinion that order dated 20th September, 2022 passed in W.P.(C) No.12275 of 2022 was passed taking into consideration that W.P.(C) No.35819 of 2021 was allowed vide order dated 1st December, 2021 and Writ Appeal No.83 of 2022 filed against the said order was dismissed as withdrawn. But the

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situation has changed after the order dated 1st December, 2021 passed in W.P.(C) No.35819 of 2022 has been recalled. As such, the order passed in W.P.(C) No.12275 of 2022 has lost its significance.

9. In the instant case, the written statement filed by the Opposite Party has already been accepted. She has also cross- examined the witnesses of the Plaintiff. The matter is now posted before learned Judge, Family Court, Court for leading evidence on behalf of the Opposite Party.

10. In that view of the matter, this Court is of the considered opinion that the Opposite Party should be allowed to lead her evidence on the basis of her pleadings. Restricting the Opposite Party to lead evidence without propounding her own case, will not only be an abuse of process of Court, but will end in miscarriage of justice.

11. Accordingly, the writ petition is disposed of without interfering with the impugned order directing the Opposite Party to lead her evidence in the matter.

12. As the civil proceeding is pending since, 2015, an endeavour should be made for early disposal of the same preferably within a period of four months from the date of production of certified copy of this order, if there is no other legal impediment. Parties are also directed to co-operate with learned trial Court for early disposal of the civil proceeding.

Urgent certified copy of this order be granted on proper application.

                                         (K.R. Mohapatra)
ms                                             Judge