Ashok Kumar Rath vs Annapurna Rath And Another
2023 Latest Caselaw 3397 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                            W.P.(C) No. 6308 OF 2022
         Ashok Kumar Rath                           ....       Petitioner
                                      Mr. Tusar Kumar Mishra, Advocate
                                       -versus-
         Annapurna Rath and another                   .... Opp. Parties
                                              Mr. Anupam Dash, Advocate
                                                    (For Opp. Party No.1)

              CORAM:
              JUSTICE K.R. MOHAPATRA
                                JUDGMENT

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Heard and disposed of on 13.04.2023

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1. This matter is taken up through hybrid mode.

2. The Petitioner in this writ petition seeks to assail the order dated 20th December, 2021 (Annexure-3) passed by learned Judge, Family Court, Rourkela in Civil Proceeding No.42 of 2007, whereby a direction has been made to the Petitioner to pay a sum of Rs.18,90,000/- to Opposite Party No.1 within a period of three months failing which, liberty was given to Opposite Party No.1 to realize the same by due process of law.

3. Marriage between the parties was solemnized on 10th June, 1995. Out of their wedlock, a son was born on 11th May, 1996 and a daughter was born on 30th October, 2001. Due to dissention arose between the parties, Opposite Party No.1 left the matrimonial home. Subsequently, Opposite Party No.1-Wife along with children filed an application under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, 1956 (for brevity 'the HAM Act') in C.P. No.154 of 2005 in the Court of

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learned Judge, Family Court, Rourkela. The Petitioner also filed an application under Section 9 of the Hindu Marriage Act, 1955 (for brevity 'the HM Act') for restitution of conjugal right in C.P. No.214 of 2005. Both C.P. No.154 of 2005 and 214 of 2005 were heard analogously. While dismissing the application under Section 9 the HM Act, learned Judge allowed the petition under Sections 18 and 20 of the HAM Act vide order dated 16th September, 2006 directing the Petitioner to pay maintenance of Rs.3,000/- per month to the Wife, Rs.800/- per month to the son and Rs.300/- per month to the daughter. The said order was not challenged and attained its finality. Thereafter, the Petitioner filed C.P. No.42 of 2007 for dissolution of marriage by a decree of divorce, which was dismissed by learned Judge, Family Court, Rourkela vide judgment dated 26th August, 2011 under Annexure-1. Assailing the same, the Petitioner filed MATA No.75 of 2011 before this Court. During pendency of the appeal, this Court vide order dated 8th October, 2015 passed the following order:

"..........As an interim measure, therefore, we direct the appellant-husband to come with a bank draft of Rs.5,00,000/- (Rupees five lakh) of a Nationalized Bank standing in the name of his wife on 30th October, 2015, on which date this Matrimonial Appeal shall come up for further deliberation. Meanwhile, we direct that the appellant-husband should not be allowed by the Authority of the Rourkela Steel Plant to take out any money except a sum of Rs.5,00,000/- from his Provident Fund, Gratuity etc. He will get only half salary per month. Henceforth, half of the salary of the appellant- husband be deposited by the Rourkela Steel Plant in a bank account to be opened by it which amount shall be utilized subject to further order passed by this Court."

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4. On 17th November, 2015, this Court passed the following order:

"List this matrimonial appeal again on 30.11.2015. On the next date, learned Counsel for the appellant shall intimate us as to what amount the appellant would like to part away to be given to his wife. Meanwhile, half of the salary of the appellant, which has now been deposited in a separate account, is directed to be paid to the wife."

5. Subsequently, MATA No.75 of 2011 was allowed vide judgment dated 15th April, 2019 under Annexure-2 with the following directions:

"11. In view of the discussion of facts and circumstances of the case, we feel it appropriate to remand the matter back to the learned trial Court to frame a specific issue as to cruelty and give a specific finding thereon after giving reasonable opportunity of hearing to both the parties, that being more so for the reason that both the parties are staying separately since the year, 2003.

12. Accordingly, the judgment dated 26.08.2011 passed by the learned Judge, Family Court, Rourkela in Civil Proceeding No.42 of 2007 is set aside and the matter is remanded back to the learned trial court who would do the needful as per out observations made in the preceding paragraph. Both the parties are directed to appear before the learned trial court on 2nd of May, 2019 to take further instruction in the matter and the learned trial court would do well to dispose of the proceeding as expeditiously as possible."

Thereafter, learned Judge, Family Court proceeded with C.P. No.42 of 2007. During pendency of the Civil Proceeding, Opposite Party No.1 filed an application on 1st February, 2020 with the following prayer:

"It is therefore prayed that your honour will be graciously pleased to pass necessary orders directing the Petitioner to abide by the orders passed by the Hon'ble High Court of Orissa vide order dated 08.10.2015 and 17.11.2015 paying the arrear

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payment since October, 2015 calculating to be Rs.15,60,000/- (Rupees fifteen lakh sixty thousand) only till January 2020 (calculated in the basis of the declaration made by the Petitioner in the Hon'ble High Court of Orissa and which is likely to be substantially enhanced as there has been increment in salary of the Petitioner after 2017) and further directing the personal appearance of the his employer CEO, SAIL Rourkela Steel Plant, Rourkela along with the monthly salary certificate paid to the Petitioner since October, 2015 till date and further initiating appropriate action for flouting the orders of the Hon'ble High Court of Orissa, and staying the present proceeding No.C.P. No.42 of 2007. And for this act of your graciousness the Petitioner shall ever pray."

The said application was dismissed due to non-

prosecution. Subsequently, Opposite Party No.1 filed another application on 7th April, 2021 with the following prayer:

"It is therefore prayed that your honour will be graciously pleased to pass necessary orders directing the Petitioner to abide by the orders passed by the Hon'ble High Court of Orissa vide order dated 08.10.2015 and 17.11.2015 paying the arrear payment since October 2015 calculating to be Rs.18,90,000/- (Rupees eighteen lakh ninety thousand) only till March 2021 (calculated in the basis of the declaration made by the Petitioner in the Hon'ble High Court of Orissa and which is likely to be substantially enhanced as there has been increment in salary of the Peitioner after 2017) and further directing the personal appearance of the his employer CEO, SAIL Rourkela Steel Plant, Rourkela along with the monthly salary certificate paid to the Petitioner since October, 2015 till date and further initiating appropriate action for flouting the orders of the Hon'ble High Court of Orissa, and staying the present proceeding No. C.P. No.42 of 2007. And for this act of your graciousness the Petitioner shall ever pray."

6. The Petitioner also filed objection to the same stating that he is not liable to pay the amount of Rs.18,90,000/-, as claimed

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by Opposite Party No.1. However, learned Judge, Family Court vide order dated 20th December, 2021 under Annexure-3 observing that admittedly salary of the Petitioner is Rs.1,00,000/- per month and the Petitioner has admitted to pay the arrear maintenance of Rs.18,90,000/- to his wife-Opposite Party No.1, directed to pay the said amount within a period of three months from the date of the order in three equal installments failing which, the Opposite Party No.1 was given liberty to realize the same by due procedure of law. Assailing the same, the writ petition has been filed.

7. Mr. Mishra, learned counsel for the Petitioner submits that the tenor of the order dated 8th October, 2015 clearly discloses that the Petitioner was liable to pay Rs.5,00,000/- to Opposite Party No.1, which he has already paid and he was also directed to pay half of his salary to Opposite Party No.1-Wife subject to further orders to be passed by this Court. The matter was again taken up on 17th November, 2015, on which date this Court while posting the matter to 30th November, 2015 directed that half of the salary of the Petitioner, which has been deposited in a separate account, is to be released in favour of Opposite Party No.1-Wife. No further order was passed by this Court for payment of any amount. Thus, the Petitioner is not liable to pay any amount beyond the said date. It is also submitted that the Petitioner has never conceded before learned Judge, Family Court in C.P. No.42 of 2007 admitting his liability to pay Rs.18,90,000/- pursuant to the direction of this Court. To the contrary, in his objection he has vehemently objected to the claim made by the Opposite Party No.1-Wife.

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8. Mr. Mishra, learned counsel for the Petitioner further submits that after disposal of MATA No.75 of 2011, interim order, if any, passed in the said appeal gets merged with the judgment in view of the ratio decided in the case of State of U.P. thr. Secretary and Others -V- Prem Chopra, reported in 2022 SCC OnLine SC 1770, wherein it is held as under:

"24. From the above discussion, it is clear that imposition of a stay on the operation of an order means that the order which has been stayed would not be operative from the date of passing of the stay order. However, it does not mean that the stayed order is wiped out from the existence, unless it is quashed. Once the proceedings, wherein a stay was granted, are dismissed, any interim order granted earlier merges with the final order. In other words, the interim order comes to an end with the dismissal of the proceedings. In such a situation, it is the duty of the Court to put the parties in the same position they would have been but for the interim order of the court, unless the order granting interim stay or final order dismissing the proceedings specifies otherwise. On the dismissal of the proceedings or vacation of the interim order, the beneficiary of the interim order shall have to pay interest on the amount withheld or not paid by virtue of the interim order."

(emphasis supplied)

9. He also relied upon the decision in the case of Kalabharati Advertising -v- Hemant Vimalnath Narichania, reported in (2010) 9 SCC 437, wherein at Paragraph-24, it is held as under:

"24. It is not permissible for a party to file a writ petition, obtaining certain orders during the pendency of the petition and withdraw the same without getting proper adjudication of the issue involved therein and insist that the benefits of the interim orders or consequential orders passed in pursuance of the interim order passed by the writ court would continue. The benefit of the interim relief

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automatically gets withdrawn/neutralised on withdrawal of the said petition. In such a case concept of restitution becomes applicable otherwise the party would continue to get benefit of the interim order even after losing the case in the court. The court should also pass order expressly neutralising the effect of all consequential orders passed in pursuance of the interim order passed by the court.

Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits. (Vide Abhimanyoo Ram v. State of U.P. [(2008) 17 SCC 73 : (2010) 1 SCC (L&S) 904] ) (emphasis supplied) He, therefore, submits that the interim orders passed by this Court in MATA No.75 of 2011 no more exist after the disposal of the appeal itself. Hence, impugned order under Annexure-3 is not sustainable and is liable to be set aside.

10. Mr. Dash, learned counsel for Opposite Party No.1 refuting to the submission made by Mr. Mishra, learned counsel for the Petitioner contends that the language and tenor of the order dated 8th October, 2015 is clear and unambiguous to the extent that the arrangement made by this Court was subject to further orders to be passed by this Court. No order either varying or modifying such order has been passed subsequently. Even after disposal of MATA No.75 of 2011, the Petitioner filed an application in I.A. No.4 of 2021 in the disposed of appeal (MATA No.75 of 2011) with a prayer to direct Rourkela Steel Plant, Manager Personnel, Iron and Steel i.e. the employer of the Petitioner not to deduct 50% from his salary. The said application was disposed of on 20th April, 2021 with the following direction:

"5. Considering the above, this Court disposes of this application with an observation that in case of appellant files an application before the Judge,

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Family Court, Rourkela in C.P. No.42 of 2007, in such event, the court below shall consider his application after giving opportunity of hearing to the parties and fix the quantum of interim maintenance till disposal of C.P. No.42 of 2007. The Court below is further directed to conclude C.P. No.42 of 2007 in accordance with law, as expeditiously as possible, preferably by end of December, 2021."

11. After disposal of the said I.A., the Petitioner waited for more than one year to file an application in terms of the order passed in I.A. No.4 of 2021 in the disposed of appeal, i.e. MATA No.75 of 2011. Seven days before disposal of C.P. No.42 of 2007, the Petitioner filed an application on 18th April, 2022 in terms of the order dated 20th April, 2021 passed by this Court in I.A. No.4 of 2021. However, the said application could not be taken up due to non-cooperation of the Petitioner and civil proceeding was disposed of on 29th June, 2022 with the following direction:

"The petition under section 13(1) (i-b) of the Hindu Marriage Act, 1955 filed by the petitioner, is allowed on contest against the respondent but in circumstances without cost. The marriage between the petitioner, Ashok Kumar Rath and respondent, Smt. Annapurna Rath solemnized on 10.06.1995 is to be dissolved by a decree of divorce, subject to payment permanent alimony of Rs.13,67,000/- (Rupees thirteen lakhs sixty seven thousand) only to the respondent-wife. If any amount has been paid by the petitioner-husband, the same shall be adjusted, failing which the respondent-wife is at liberty to realize the same according to law of this land."

12. Mr. Dash, learned counsel for Opposite Party No.1 further fairly concedes that the permanent alimony, as directed in judgment dated 29th June, 2022 passed in C.P. No.42 of 2007 has already been paid to Opposite Party No.1. However, the judgment passed in C.P. No.42 of 2007 is under challenge before

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this Court in appeal and is sub-judice. It is his submission that since the Petitioner has admitted his liability to pay Rs.18,90,000/- to Opposite Party No.1 pursuant to the direction of this Court in MATA No.75 of 2011, he is estopped to challenge the same before this Court. The Petitioner cannot dispute recording of learned Judge, Family Court, Rourkela before this Court. It is his submission that the remedy lies to the Petitioner to file appropriate application before the said Court, correctness of recording of which is challenged. No such application has been filed as yet by the Petitioner. As such, the impugned order under Annexure-3 warrants no interference. He further submits that the writ petition is barred for suppression of materials fact and the Petitioner is tried to mislead the Court.

13. In support of his case, Mr. Dash, learned counsel for Opposite Party No.1 relied upon the ratio decided in the case of Manoranjan Parida -v- Debts Recovery Tribunal, Cuttack and others, reported in (2009) 108 CLT 78, wherein this Court has held as under:

"4. Admittedly, the Petitioner was the Defendant No. 3 in the said case and the Tribunal had recorded a finding that he had personally been served with the notice. Learned Counsel for the Petitioner Shri Mallik, was confronted with the proceedings recorded by the Tribunal. He could not furnish any explanation as to why the Petitioner had not taken any ground before the Tribunal while filing the application to set aside the ex parte Judgment and order that the said proceeding dated 28.11.2002 had wrongly been recorded. We have gone through the entire application submitted by the Petitioner. He had never disputed that proceeding. In the Writ Petition, he has seriously challenged the said proceeding. The Writ Petition has been filed against the Judgment and order of the Tribunal wherein no pleadings has been taken in this regard. In such a fact-situation, there is

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no occasion for us to examine this issue and record any finding as to whether the Petitioner had been aware of subsequent proceedings before the Tribunal which are continuing till now.

5. It is settled legal proposition that Court is bound to accept the statement of the Judges recorded in their Judgment, as to what transpired in Court. Judges' record was conclusive. Neither lawyer nor litigant may contradict it, except before the Judge himself. It is for the party that if any proceeding had wrongly been recorded by the Court, there is a course to file recall or review before the same Court. (vide State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463 : AIR 1982 SC 1249).

6. In D.P. Chadha v. Triyugi Narain Mishra, (2001) 2 SCC 221 : AIR 2001 SC 457, the Apex Court held that the record of the proceeding made by the Court is sacrosanct. The correctness thereof cannot be doubted merely for the asking.

7. Similar view has been reiterated by the Apex Court in Bhabnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 : AIR 2003 SC 511; Guruvayoor Devaswom Managing Committee v. C.K. Rajan, (2003) 7 SCC 546; and Bhagubhai Dhanabhai Khalasi v. State of Gujarat, (2007) 4 SCC 241, placing reliance upon its earlier Judgment in Ramdas Shrinivas Nayak (supra)."

14. He also relied upon the decision in the case of Ajanta LLP -v-Casio Keisanki Kabushiki Kaisha D/B/A Casio Computer Company Limited and another, (2022) 5 SCC 449, wherein the Hon'ble Supreme Court has held as under:

"24. The High Court applied its mind and passed a decree in terms of the settlement agreement dated 16- 5-2019. Though, the High Court dismissed the application by refusing to entertain the application on the ground that it was filed under Section 152CPC, we have considered the submissions of the parties to examine whether the appellant has made out a case for modification of the decree by treating the application as one under the proviso to Order 23 Rule 3 read with Section 151CPC. There is no allegation

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either of fraud or misrepresentation on the part of the respondent. We are unable to agree with the appellant that there was a mistake committed while entering into a settlement agreement due to misunderstanding. Correspondence between the advocates for the parties who are experts in law would show that there is no ambiguity or lack of clarity giving rise to any misunderstanding. Even assuming there is a mistake, a consent decree cannot be modified/altered unless the mistake is a patent or obvious mistake. Or else, there is a danger of every consent decree being sought to be altered on the ground of mistake/misunderstanding by a party to the consent decree."

He, therefore, submits that the writ petition is not maintainable and is liable to be dismissed.

15. Considering the rival contentions of the parties, this Court finds that the case has a chequered carrier and the parties are litigating since 2005 for their legal right. This Court vide interim order dated 8th October, 2015 has made certain arrangement as stated above. Vide order dated 17th November, 2015, this Court while adjourning the matter to 30th November, 2015 directed that in the meanwhile, half of the salary of the Petitioner, which was deposited in a separate account should be paid to Opposite Party No.1-Wife. Apparently no further order with regard to interim arrangement vide order dated 8th October, 2015 has been passed. While making interim arrangement, this Court has recorded a finding that such arrangement is made subject to further orders to be passed by this Court. Ordinarily, the interim arrangement made by a Court merges with the final order, as held in the case of State of U.P. thr. Secretary and Others (supra) and Kalabharati Advertising (supra), if no specific order to that effect is passed in the final order itself. But, in the instant case, no such order has been passed.

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However, recording of learned Judge, Family Court, Rourkela in impugned order under Annexure-3 to the effect that the Petitioner has admitted to pay the arrear maintenance of Rs.18,90,000/- to Opposite Party No.1 is a stumbling block in considering the veracity of the order impugned herein. Further, Mr. Mishra, learned counsel for the Petitioner submits that no such concession has ever been made before learned Judge, Family Court, which is apparent from the counter affidavit filed by the Petitioner to the petition filed by the Opposite Party No.1, wherein it has been categorically stated that the claim of Opposite Party No.1 is without any basis and not sustainable. When the Petitioner is seriously objecting to the claim of Opposite Party No.1, there was no occasion on the part of the Petitioner to make a concession before learned Judge, Family Court, Rourkela. However, such a contention made by Mr. Mishra, learned counsel for the Petitioner cannot be adjudicated by this Court in view of the ratio in the case of Manoranjan Parida (supra) and the decision of the Hon'ble Supreme Court in Ajanta LLP (supra). If the Petitioner objects to the recording made by it before learned Judge, Family Court, it should have filed an application to that effect before the said Court to expunge/delete such an observation.

16. In view of the above, the writ petition is disposed of with an observation that in the event, the Petitioner files an appropriate application before learned Judge, Family Court, Rourkela to delete/expunge the concession made by it admitting his liability to pay Rs.18,90,000/-, the same shall be considered in accordance with law giving opportunity of hearing to the

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parties concerned notwithstanding the fact that C.P. No. 42 of 2007 has been disposed of in the meantime.

17. Sine the Civil Proceeding, in which the impugned order under Annexure-3 was passed is of the year, 2007, if an application, as aforesaid, is filed within a period of fifteen days hence along with certified copy of this order, learned Judge, Family Court, Rourkela shall do well to consider the same as expeditiously as possible preferably within a period of two months from the date of appearance of the parties before the Court.

18. With the aforesaid observation and direction, the writ petition is disposed of.

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

                                           (K.R. Mohapatra)
ms                                               Judge