Orissa High Court
Subrat Das vs Sugyani Prabha Panigrahy on 23 June, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.41 of 2022
Subrat Das .... Appellant
Mr. R.K.Sahoo, Advocate
-versus-
Sugyani Prabha Panigrahy .... Respondent
Mr.S.K.Dash,Advocate
CORAM:
SHRI JUSTICE S. TALAPATRA
SHRI JUSTICE B. P. ROUTRAY
ORDER
23.6.2022
Order No.
04. 1. The matter is taken up through Hybrid mode.
2. This appeal arises from the judgment dated 1st December, 2021
delivered in Civil Proceeding No.72 of 2021, which has been
renumbered as Mat Case No.22 of 2019 before the Family Court,
Parlakhemundi, Gagapati. The Respondent filed a petition under
Section 9 of the Hindu Marriage Act, 1955 for restitution of the
conjugal rights. There is no dispute regarding the facts relating to
marriage and that the Appellant is living separately from the husband.
The matrimonial discord was, on earlier occasions, settled by
intervention of the family elders, but again the Respondent has been
subjected to harassment. But all these allegations have been denied by
the Appellant. On the face of the rival pleadings, following issues
were framed for adjudication of the said petition:
i) Whether the case is maintainable?
ii) Whether the petitioner is cause of action?
iii) Whether the petitioner is entitled to restitution for
conjugal rights with respondent?
iv) To what (any other) relief may be granted?
3. It appears from the record that the Respondent, the Petitioner in
the original proceeding, has adduced two witnesses (Respondent
himself and his mother, PW2). Certain serious allegations have been
made by the Appellant including the allegations of violating her body
by the father in law and physical assault on 23rd April, 2017, in her
written statement, it has been also stated that finally she was driven
out from the matrimonial home. It appears further from the records
that 1st December, 2021 was fixed for appearance of the Appellant,
but on that date as is evident from the order dated 1st December, 2021,
neither of the parties was present when the matter was taken up. In the
said order dated 1st December, 2021, it has been noted that on 18th
November, 2021, the evidence of the petitioner (Respondent herein)
was closed. On 25th November, 2021, the evidence of the Appellant
was also declaredclosed "without any witness examined on behalf of
the respondent". On 1st December, 2022, the case was fixed for
argument. As there was no representation from the parties, the suit has
been disposed of, taking recourse to the provision of Order 17 Rule 3
of the CPC.
4. Mr.R.K.Sahu, learned counsel appearing for the Appellant has
quite succinctly submitted that the Judge, Family Court has taken the
recourse under Order 17 Rule 3 of the CPC wrongly, inasmuch as
Order 17 Rule 3 provides that the Court may proceed notwithstanding
either party fails to produce evidence, etc. It has been provided that
where any party to a suit to whom time has been granted fails to
produce his evidence, or to cause the attendance of his witnesses, or to
perform any other act necessary for to the further progress of the suit,
for which time has been allowed, the Court may, notwithstanding such
default (a) if the parties are present, proceed to decide the suit
forthwith, or (b) if the parties are, or any of them is, absent, proceed
under rule 2.
5. Mr. Sahu, learned counsel has further pointed out that both the
parties were absent on the date when the impugned judgment was
passed. In that circumstances, Order 17 Rule 2 CPC may not apply
inasmuch as Rule 2 provides that where, any day to which the hearing
of the suit is adjourned, the parties or any of them fail to appear, the
Court may proceed to dispose of the suit in one of the modes directed
in that behalf by Order 9 or pass such other order as it thinks fit. In the
present case, by the impugned judgment, recourse to Order 9 has not
been taken. As such the procedure as adopted has been vitiated in law.
6. Mr.S.K.Das, learned counsel appearing for the Respondent
contended that when the impugned judgment was passed, the Court
had no other alternative recourse.
7. We have perused the records and also examined the judgment
carefully and are of the opinion that the judgment passed under Order
17 Rule 3 cannot be sustained as the parties were absent and there
would have been no recourse to the provisions of Order 9 CPC. In
view of that, the impugned judgment stands set aside. The petition
being Civil Proceeding No.72 of 2021, renumbered as Mat Case
No.22 of 2019, is remanded for commencement of adjudication from
the stage of recording of the evidence of the Respondent [the
Appellant herein). Since the matter requires early disposal, we would
request the Judge, Family Court, Paralakhemundi to take all initiatives
to complete the proceeding within six months from the date when a
copy of this order will be available before that court.
8. In the result, the appeal stands allowed. Registry is directed to
draw the decree and send the LCRs thereafter.
( S. Talapatra)
Judge
( B.P. Routray)
Judge
C.R. Biswal / M.K.Panda
