Orissa High Court
Smt. Sasmita Jena vs Ajit Kumar Samantray on 14 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 65 of 2021
Smt. Sasmita Jena .... Appellant
Mr. B.B. Mishra (2), Advocate
-versus-
Ajit Kumar Samantray .... Respondent
Mr. T.K. Mishra, Advocate
CORAM:
JUSTICE S. TALAPATRA
JUSTICE M. S. SAHOO
ORDER
Order No. 14.09.2022
06. 1. This matter is taken up through hybrid mode.
2. The appellant filed the matrimonial suit seeking
divorce. Initially, the respondent opposed the prayer of
divorce, but before the proceeding was taken to the
stage of recording evidence, the respondent filed an
affidavit apprising the court that in the emerged
circumstances, he would accede to the relief of divorce.
Thereafter, several dates were posted for recording the
evidence of the appellant as the petitioner in the said
proceeding being C.P. No.145 of 2015. But she was not
attending the proceeding. Thereafter, the evidence of
the defendant was recorded by the Judge, Family Court
and finally, the decree of divorce was granted pursuant
to the judgment dated 18.12.2017. The operative part
of the said judgment reads as follows:
"Marriage between petitioner wife Sasmita
Jena and respondent husband Ajit Kumar
Samantray solemnized on 18.11.2011
stands dissolved by a decree of divorce and
that the petitioner is entitled to get
permanent alimony of rupees four lakhs
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twenty thousand. The decree of divorce shall
come into force after deposit of rupees four
lakhs twenty thousand by the respondent
husband and after expiry of the appeal
period."
3. Against the said order, the appellant herein filed an
application for setting aside the purported ex parte
judgment as aforementioned under Order 9 Rule-13 of
the C.P.C. being C.M.A. No.8 of 2018. The said
application was dismissed by the Judge, Family Court
by order dated 16.09.2021 observing inter alia that:
"Since the judgment and decree passed in Civil
Proceeding No.145 of 2015 is not found to be an ex parte
judgment, no remedy is available for the petitioner-wife
U/o-9 Rule-13 of the C.P.C. for setting aside said
judgment. Moreso, nowhere in the Civil Proceeding
No.145 of 2015, the respondent-husband has been set
ex parte. Fact remains that it is the petitioner-wife who
has not attended in Court on number of dates of posting
for hearing for which the respondent-husband had
moved the Hon'ble Court seeking direction for disposal
of the proceeding at an early. The Court has not made
any order that the proceeding be dismissed when the
petitioner-wife did not appear when the case is called on
for hearing on several dates although on such dates, he
has been found present in Court in person.
As per Order-9 Rule-8 of the CPC, where
defendant appears and the plaintiff does not appear,
when the suit is called on for hearing, the Court shall
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make an order that the suit be dismissed, unless the
defendant admits the claim, or part thereof, in which
case the Court shall pass a decree against the
respondent upon such admission and where the part
only of the claim has been admitted, shall dismiss the
suit so far as it relates to the reminder. In view of the
provisions U/o-9 Rule-8 of the CPC, it would not be in
the interest of justice to say that the judgment and
decree passed in Civil Proceeding No.145 of 2015 upon
the written admission of the respondent-husband is
shrouded with any wrong.
As per Order-17 Rule-2 of the CPC, where on any
day to which the hearing of the suit is adjourned, the
parties or any of them failed to appear, the Court may
proceed to dispose of the same in one of the modes
directed in that behalf by Order-9 or make such other
order as it thinks fit."
4. Elaborate reasons have been laid for dismissing the
petition for setting aside purported ex parte judgment.
However, we do prima facie find that no reason has
been given how without any admission or any evidence,
the permanent alimony has been quantified. Be that as
it may, in this stage, we would request Mr. B.B.
Mishra, learned counsel appearing for the appellant to
obtain instruction from the appellant on whether she
would continue with her challenge against the decree of
divorce or not.
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5. Mr. T.K. Mishra, learned counsel has entered
appearance for the respondent.
6. Let the matter be listed on 17th October, 2022.
7. As per the decision of the Hon'ble Apex Court in the
case of Rajnesh vrs. Neha & another: (2021) 2 SCC
324, the parties shall file the statement of income,
assets and liability on the next date.
(S. Talapatra)
Judge
(M.S. Sahoo)
Judge
RRJena/GS
