Bijay Kumar Jena vs Jyostnamayee Pradhan @ Jena And
2023 Latest Caselaw 9770 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                             RPFAM NO. 252 OF 2023
                 Bijay Kumar Jena                      ....       Petitioner
                                     Mr. Bharat Bhusan Routray, Advocate
                                        -versus-
                 Jyostnamayee Pradhan @ Jena and       .... Opp. Parties
                 another


                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                      ORDER

Order No.                            22.08.2023
             RPFAM NO. 252 OF 2023
             & I.A. No. 303 of 2023

 1.         1.      This matter is taken up through hybrid mode.

2. This is an application for condonation of delay of 112 days in filing the RPFAM as pointed out by the S.R.

3. Mr. Routray, learned counsel submits that although the Petitioner participated in the proceeding under Section 125 Cr.P.C. in C.R.P. No.151 of 2019, but learned counsel appearing for the Petitioner in the said proceeding did not intimate about the judgment passed on 24th January, 2023. Only when the Petitioner received the notice in the execution proceeding, he came to know about the judgment passed in C.R.P. No.151 of 2019. Hence, there is a delay in filing the RPFAM.

4. It is his submission that the Petitioner in the RPFAM seeks to assail the judgment dated 24th January, 2023 passed by learned Judge, Family Court, Puri in C.R.P. No.151 of 2019,

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whereby he has been directed to pay maintenance of Rs.3,000/- per month to the Opposite Party No.1 and Rs.2,000/- per month to the Opposite Party No.2 from the date of the said order. It is his submission that no material with regard to the income of the Petitioner was adduced by the Opposite Party No.1, who examined herself as P.W.1. It is further submitted that a proceeding under Section 9 of the Hindu Marriage Act, 1955 was filed at the instance of the Petitioner and it has been decreed in his favour. In spite of the same, the Opposite Party No.1 did not show any interest to join the matrimonial home. As such, she is not entitled to maintenance under Section 125 Cr.P.C. He, therefore, submits that the Petitioner has a prima facie case to be considered in the RPFAM. Hence, he prays for issuance of notice to the Opposite Parties in the matter of limitation.

5. Considering the submission made by learned counsel for the Petitioner and on perusal of the averments made in the petition under Section 5 of the Limitation Act, it appears that the Petitioner at paragraph-3 has stated that due to non- communication of the judgment by learned counsel appearing on his behalf before the Family Court, he could not know about the same. Only when he received the notice in the execution proceeding, he could know about the judgment passed in C.R.P. No.151 of 2019. No details of either of the execution proceeding or when he received the notice in the execution proceeding has been provided in the petition filed under Section 5 of the Limitation Act. It further appears that neither the Petitioner examined himself in the proceeding under Section 125 Cr.P.C.

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nor produced any document in support of his income. In absence of any material, learned Judge, Family Court, Puri made a guess work and held that the Petitioner might be earning Rs.25,000/- per month and accordingly, directed to pay maintenance, as above.

6. Since delay in filing the RPFAM has not been properly explained, the I.A. stands dismissed. Consequently, the RPFAM stands dismissed being barred by limitation.

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

                                                                     (K.R. Mohapatra)
      bks                                                                  Judge




Signature Not Verified
Digitally Signed
Signed by: BIJAY KUMAR SAHOO
Reason: Authentication

Location: High Court of Orissa, Cuttack Date: 24-Aug-2023 11:05:34