Orissa High Court
Dr. Anil Kumar Sahoo vs Chinmayee Sahoo on 20 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 12275 OF 2022
Dr. Anil Kumar Sahoo .... Petitioner
Mr. Kailash Chandra Kar, Advocate
-versus-
Chinmayee Sahoo .... Opp. Party
Mr. Sailesh Das, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 20.09.2022
5. 1. This matter is taken up through hybrid mode.
2. Order dated 4th April, 2022 (Annexure-1) passed by
learned Judge, Family Court, Cuttack in C.P. No.459 of 2015 is
under challenge in this writ petition, wherein the written
statement filed by the Opposite Party is accepted and the matter
was posted to 2nd May, 2022 for evidence of the Opposite
Party.
3. Mr. Kar, learned counsel for the Petitioner submits that
earlier the Petitioner assailing the order dated 29th October,
2021 passed by learned Judge, Family Court, Cuttack in the
aforesaid civil proceeding had approached this Court in
W.P.(C) No.35819 of 2021, whereby learned Judge, Family
Court posted the matter for evidence of the Opposite Party,
when she is precluded from filing of the written statement vide
order dated 21st January, 2017. This Court disposed of the writ
petition vide order dated 1st December, 2021 directing as under:
"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
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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."
4. It is submitted by learned counsel for the Petitioner that
the order of this Court was produced before learned Judge,
Family Court on 18th December, 2021. In spite of the same,
learned Judge, Family Court in its order dated 4th April, 2022
accepted the written statement filed by Opposite Party and
permitted her to lead evidence. He, therefore, submits that in
essence, learned Judge, Family Court has committed contempt
of this Court. Since this Court disposed of the writ petition with
a direction to pronounce the judgment by taking into
consideration the pleadings, evidence and materials available
on record, there is no scope for the learned Judge, Family Court
to accept the written statement and posted the matter for
evidence from the side of the Opposite Party. He, therefore,
prays for setting aside the impugned order and to direct the
learned Judge, Family Court to pronounce the judgment at
once.
5. Mr. Das, learned counsel for the Opposite Party submits
that although the written statement was filed earlier on 30th
August, 2019 along with a petition for acceptance of the same,
but the matter was inadvertently posted for evidence. It,
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therefore, proceeded with the matter for accepting the written
statement filed by the Opposite Party and passed the impugned
order. It is his submission that earlier the writ petition in
W.P.(C) No.35819 of 2021 was filed suppressing material fact.
Said writ petition was also disposed of without issuing notice to
the Opposite Party. Hence, the Opposite Party had filed W.A.
No.83 of 2022 assailing the order dated 1st December, 2021
passed in W.P.(C) No.35819 of 2021. It is submitted that while
disposing of the Writ Appeal as withdrawn, the Division Bench
of this Court has observed as under:
"5. At the time of hearing, counsel for the
Petitioner prays for permission to withdraw the
present writ appeal as the Family Court by
subsequently order dated 4th April, 2022 has
permitted the Appellant-Wife to place on record the
written statement.
6. In view of the above, the writ appeal is
dismissed as withdrawn."
In view of the above, Mr. Das, learned counsel for the
Opposite Party submits that learned Judge, Family Court has
committed no error in passing the impugned order under
Annexure-1.
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
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varied/modified. However, the order dated 4th April, 2022 was
passed at that juncture when the 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.
7. Learned Judge, Family Court, Cuttack is directed to act
upon the order dated 1st December, 2021 passed in W.P.(C)
No.35819 of 2021, if it is not varied/modified in the meantime.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
ms
