Bharati Das vs Saraswati Das And Others
2023 Latest Caselaw 267 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   CMP No.1269 of 2014

                 Bharati Das                                ....       Petitioner
                                              Mr. Samir Kumar Mishra, Advocate

                                               -versus-
                 Saraswati Das and others                     .... Opp. Parties
                                                  Mr. Amit Prasad Bose, Advocate
                                                       (For Opposite Party No.1)
                            CORAM:
                           JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             06.01.2023
 14.        1.      This matter is taken up through Hybrid mode.

2. Petitioner in this CMP seeks to assail the order dated 23rd August, 2014 (Annexure-3) passed by learned Additional Civil Judge (Senior Division), Balasore in CS No.599 of 2006 (I), whereby he passed an order to request learned District Judge to withdraw the suit.

3. Mr. Mishra, learned counsel for the Petitioner submits that CS No.599 of 2006 (I) has been filed with the following prayers:-

"a) a decree may be passed declaring the Hiramani is not legally married wife of Ratnakar Das and D-I to D-3 are not the children of Ratnakar Das;

b) a decree may be passed declaring the judgment and decree of OS No.20/92-I is in-operative void and not binding upon the plaintiff;

c) a decree of permanent injunction be passed restraining the defendants not to disturb the peaceful possession of the plaintiff over the suit land and not to enter upon the same and to maintain status quo over the suit land;

d) a decree be passed for the cost of litigation and lawyer fees and any other relief to which the plaintiff is entitled under law and equity."

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It is his submission that although prayer No.(a) relates to matrimonial status of the parties, but rest of the reliefs sought for in the suit can only be decided by competent civil Court.

The relief sought for as per prayer Nos. (b) and (c) does not come within the purview of the Family Court, in view of Section 7 of the Family Courts Act, 1984. He, therefore, submits that the impugned order is not sustainable and is liable to be set aside.

4. Mr. Bose, learned counsel for Opposite Party No.1 submits that Defendants in the suit were set ex-parte. Thus, he is not in a position to address the Court with regard to the prayer made in prayer Nos.(b) and (c).

5. On perusal of the impugned order, it appears that learned trial Court observing that the Plaintiff has sought for relief questioning the marital status of Haramani, opined that it should be decided by the Family Court. Learned trial Court did not at all discuss about the relief sought for in prayer Nos.(b) and (c) at para-18 of the plaint. Mr. Mishra, learned counsel for the Petitioner also pleads his ignorance about the reliefs sought for in the TS No.20 of 1992. In that view of the matter, this Court is not in a position to assess the submission made by Mr. Mishra, learned counsel for the Petitioner.

6. As such, this Court feels that the matter requires fresh consideration by learned trial Court. Accordingly, the impugned order dated 23rd August, 2014 (Annexure-3) passed by learned Additional Civil Judge (Senior Division), Balasore in CS No.599 of 2006 (I) is set aside and the matter is remitted back to learned trial Court to take a decision afresh with regard to

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maintainability of the suit in accordance with law, giving opportunity of hearing to the parties concerned.

7. The CMP is accordingly disposed of.

8. Interim order dated 15th October, 2014 passed in Misc. Case No.1193 of 2014 stands vacated.

Issue urgent certified copy of the order on proper application.

(K.R. Mohapatra) Judge

s.s.satapathy