Orissa High Court
Ashish Kumar Barik vs Prangya Rath on 9 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 444 OF 2023
Ashish Kumar Barik .... Petitioner
Mr. Lalit Kumar Maharana, Advocate
-versus-
Prangya Rath .... Opp. Party
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 09.01.2023
1. 1. This matter is taken up through hybrid mode.
2. Though this matter was not there in today's list, on
being mentioned by Maharana, learned counsel for the
Petitioner stating the urgency in the matter, it is taken up by a
special notice.
3. Order dated 17th December, 2022 passed in C.P. No. 909
of 2017 (Annexure-10) is under challenge in this writ petition,
whereby learned Judge, Family Court-II, Bhubaneswar closed
the evidence of the Petitioner and posted the matter to 22nd
December, 2022 for argument.
4. Mr. Maharana, learned counsel for the Petitioner
submits that C.P. No.909 of 2017 has been filed by O0pposite
Party for dissolution of marriage by a decree of divorce. On
16th January, 2020, the evidence from the side of Opposite Party
(Petitioner before Family Court) was closed and the matter was
posted for evidence on behalf of the present Petitioner. Due to
outbreak of COVID-19, the evidence of the Petitioner could not
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be recorded. In the interregnum, the Petitioner was arrested in
connection with an offence under the NDPS Act on 5th August,
2021. Due to non-appearance of the Petitioner, his evidence
was closed on 9th December, 2021. The Petitioner was granted
bail by this Court vide order dated 4th August, 2022 (Annexure-
5) passed in BLAPL No. 9903 of 2021. Accordingly, the
Petitioner was released on bail on 6th August, 2022.
Subsequently, on an application filed by the Petitioner, learned
Judge, Family Court, Bhubaneswar recalled the order dated 9th
December, 2021 and posted the matter to 3rd December, 2022
for adducing evidence on behalf of the Petitioner. On 3rd
December, 2022, the Petitioner could not remain present due to
his ill health for which he filed an application for adjournment,
which was allowed subject to payment of cost of Rs.1,000/- to
the Opposite Party. The matter was next posted to 17th
December, 2022 for adducing evidence on behalf of the
Petitioner. Due to deteriorated health condition of the
Petitioner, he was advised for hospitalization on 12th December,
2022, but the Petitioner was to appear before learned Special
Judge, Gunupur as per the condition of the bail order. Hence,
he moved to Gunupur and appeared before learned Additional
District & Sessions Judge-cum-Special Judge, Gunupur on 15th
December, 2022 in connection with T.R. Case No. 2 of 2021.
However, as per the advice of Doctor, he was admitted in
Hospital in the intervening night of 15/16th December, 2022 at
2.00 A.M. Consequently, he could not appear before learned
Judge, Family Court, Bhubaneswar on 17th December, 2022. As
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a result, the evidence was closed and the matter was posted to
22nd December, 2022 for argument. Thereafter, the matter was
posted to 3rd January, 2023 for filing of notes of argument and
documents and lastly, the matter is posted tomorrow i.e. 10th
January, 2023 for delivery of judgment.
5. It is submitted by Mr. Maharana, learned counsel for the
Petitioner that the entire endeavour of the Petitioner is to save
the marriage. To that effect, he has also taken a stand in his
written statement. Although opportunity was granted to the
Petitioner to lead evidence in the matter, but due to the
circumstance beyond his control, he could not appear and
comply with the direction of the Court. As such, an opportunity
should be given to the Petitioner to adduce evidence in the
matter and contest the case. Hence, he prays for setting aside
the impugned order under Annexure-10.
6. On a close reading of the events as narrated by learned
counsel for the Petitioner, it appears that the Petitioner was
given several opportunities to adduce evidence and contest the
case. Although the matter was posted to 3rd December, 2022 for
evidence on behalf of the Petitioner, but he remained absent on
the plea of his ill health and a petition for adjournment was
allowed on his behalf subject to payment of cost of Rs.1,000/- to
the Opposite Party. The matter was next posted to 17th
December, 2022.
7. As submitted by Mr. Maharana, learned counsel, on 12th
December, 2022, the health condition of the Petitioner
deteriorated and he was advised for hospitalization, but due to
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the condition imposed for grant of bail, he had to move Gunupur
to appear before learned Special Judge, Gunupur and he got
admitted in the intervening night of 15/16th December, 2022 at
2.00 A.M. in a private Nursing Home. There is no material on
record to show that admission of the Petitioner in the
intervening night of 15/16th December, 2022 in a private
Nursing Home was inevitable. Further, the physician advised
the Petitioner on 12th December, 2022 for hospitalization. In
spite of the same, the Petitioner could move to Gunupur to
appear before learned Special Judge. There is no convincing
material on record to show as to why he could not appear before
learned Judge, Family Court. It also appears that although
learned Judge, Family Court, Bhubaneswar while adjourning the
matter to 17th December, 2022 directed the Petitioner to pay cost
of Rs.1,000/- to the Opposite Party, but the same has not yet
been paid. No application for extension of time to pay the cost
was filed. On the other hand, an application was filed on 17th
December, 2022 for adjournment. Learned Judge, Family
Court, Bhubaneswar rejected the said application for
adjournment and posted the matter to 22nd December, 2022 for
argument. It appears that the Petitioner also did not take part in
the proceeding on the said date and allow the proceeding to
continue. The matter was next posted to 3rd January, 2023 for
filing of notes of argument and documents. But the Petitioner
did not avail that opportunity also. From the above, it appears
that the Petitioner is only trying to linger the proceeding.
Although the Petitioner has taken a plea that he wants to save
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the marriage, but his intention shows that he is not interested to
participate in the proceeding. Thus, learned Judge, Family
Court, Bhubaneswar has committed no error in rejecting the
time petition on 17th December, 2022 and closing the evidence
on behalf of the Petitioner.
8. In view of the above, this Court finds no infirmity in the
impugned order under Annexure-10. Accordingly, the CMP
being devoid of any merit stands dismissed.
Urgent certified copy of this order be granted on proper
application. .
(K.R. Mohapatra)
bks Judge
