Tushar Kanti Behera vs Sukanti Behera
2023 Latest Caselaw 10371 Ori

Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 31-Aug-2023 16:29:32




                                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                               RPFAM NO.278 OF 2019
                                Tushar Kanti Behera               ....                 Petitioner
                                                             Mr. Hrudananda Mohapatra, Advocate
                                                           -versus-
                                Sukanti Behera                             ....       Opp. Party
                                                                  Ms. Sangita Mohanty, Advocate
                                          CORAM:
                                          JUSTICE K.R. MOHAPATRA
                                                  ORDER

          Order No.                              30.08.2023
             4.           1.        This matter is taken up through hybrid mode.

2. Judgment dated 24th October, 2019 passed by learned Judge, Family Court, Jajpur in CRP No.207 of 2014 is under challenge in this RPFAM, whereby an application filed by the Petitioner to adopt the evidence led by him in CRP No.630 of 2011, has been rejected.

4. Mr. Mohapatra, learned counsel appearing for the Petitioner submits that earlier the Opposite Party had filed CRP No.630 of 2011. After closure of the evidence, the argument was heard in the matter and at that juncture when the proceeding was pending for pronouncement of the judgment, the Opposite Party withdrew such application. Subsequently, the present application has been filed under Section 125 CrPC on the self-same allegation. After examination of the witnesses of the Opposite Party, the Petitioner filed an application to adopt the evidence adduced in CRP No.630 of 2011 in the present proceeding under 125 CrPC. Said application was rejected. Hence, this RPFAM has been filed. 4.1 It is his submission that the pleadings in CRP No.630 of 2011 and CRP No.207 of 2014 are one and the same. The Petitioner

Signature Not Verified Digitally Signed // 2 // Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 31-Aug-2023 16:29:32

has also filed written statement in the said proceeding. He has also filed an application questioning the maintainability of the subsequent proceeding under Section 125 CrPC. The application to adopt the evidence already adduced in CRP No.630 of 2011 was filed to save time of the Court, as it would be mere repetition of the evidence in the present proceeding. Learned trial Court refused to accept such prayer on the ground that the Opposite Party objected to the same stating that the facts and circumstances in both the cases are different and the evidence in both the proceedings are also different. Such an observation is not sustainable in the eye of law, as the allegation in both the proceedings under Section 125 CrPC are one and the same and evidence has been laid in the same light also by the Opposite Party. Thus, learned Judge, Family Court committed an error in not accepting the prayer made by the Petitioner. Hence, this RPFAM has been filed.

5. Learned counsel for the Opposite Party vehemently objected to the above submission. It is her submission that both the proceedings under Section 125 CrPC are distinct. The Opposite Party, who is the Petitioner in the proceeding under Section 125 CrPC has already led her evidence. The evidence led in a different proceeding cannot be adopted as evidence in the present one. The parties have to lead evidence in support of their respective pleadings in the instant case. The Petitioner, however, may rely upon the evidence adduced in CRP No.630 of 2011 following due procedure of law, but the prayer to adopt the evidence already adduced in CRP No.630 of 2011 is misconceived.

Signature Not Verified Digitally Signed // 3 // Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 31-Aug-2023 16:29:32

6. Taking note of submissions made by learned counsel for the parties, this Court is of the considered opinion that CRP No.630 of 2011 has already been dismissed as withdrawn. It is alleged by the Petitioner that the Opposite Party has filed the subsequent proceeding under Section 125 CrPC (CRP No.207 of 2014) on the self-same pleadings and allegations. The same is a matter of consideration by the Family Court. But the parties have to confirm their respective pleadings by adducing evidence. Evidence adduced in a disposed of proceeding cannot be adopted as evidence in the instant proceeding under Section 125 CrPC. But the Petitioner may rely upon the evidence in the disposed of proceeding by following due procedure of law. Thus, learned Judge, Family Court, Jajpur has committed no error in rejecting the prayer of the Petitioner.

6. In that view of the matter, the RPFAM being devoid of any merit stands dismissed. The Petitioner without any further delay should cooperate with the Court by adducing evidence in the proceeding under Section 125 CrPC.

Issue urgent certified copy of the order on proper application.

s.s.satapathy (K.R. Mohapatra) Judge