Orissa High Court
Sandhya Rani Sahoo @ Mohanty vs Anusaya Mohanty on 13 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 96 OF 2021
Sandhya Rani Sahoo @ Mohanty .... Appellant
Mr.J.Pal,Adv.
-versus-
Anusaya Mohanty .... Respondent
Mr.B.Bhuyan,Adv.
CORAM:
JUSTICE BISWANATH RATH
JUSTICE M.S.SAHOO
ORDER
13.07.2023
Order No.
14. 1. Heard the submissions of learned counsel appearing for
respective parties.
2. Considering the grounds raised herein read together with the
order sheet dated 23.08.2021 in the C.P. No. 576 of 2017, this
Court finds there is clear statement that the lawyer appearing for
the Respondent therein died just before the date of argument and
there was reasonable cause for absence of the Respondent not
being represented by the counsel. The order sheet dated 23.08.2021
reads as follows:
<The petitioner is present. Respondent is absent on calls. No
step is taken on her behalf. The case is posted to evidence from
the side of respondent. Hearing cannot be taken up due to absent
of respondent. Hence evidence of respondent is closed. Put up
on 2.9.21 for the Argument.
Both the parties to remain present=.
Sd/- N. Jena
Judge, Family Court, BBSR
// 2 //
3. The order appears to have been passed for non-cooperation
of the lawyer, who had already died on 07.06.2021. It is at this
point of time, this Court finds from the final judgment dated
29.10.2021, there is however recording the matter has been decided
on contest of both parties.
4. On the dispute had been resolved in no participation of the
Respondent on 23.08.2021, Mr. Bhuyan, learned counsel for the
Respondent herein, however claims, there may not be wrong in
mentioning in disposal of the proceeding on contest of the parties
as there was possibility of participating to the extent of the
pleading already on record, the evidence recorded and making
submissions.
5. This Court from the order dated 23.08.2021 finds, there has
been no advancement of evidence on behalf of the Respondent at
all. This is an inter se dispute between the Petitioner and the
Respondent in the original proceeding and such proceeding
deserves to be decided only after opportunity of evidence by both
the contesting parties.
6. Undisputedly there has been no proper contest at the instance
of the Respondent, this Court thus finds in the resolution of an inter
se dispute there must be active participation of the respondent also.
We find there is reasonable cause in the non appearance of the
counsel for the respondent who had hardly died on 07.06.2021 and
there has been no appearance of new counsel, may be for the
reason the Respondent did not know the death of her counsel.
7. This Court finds, there is reasonable cause in absence of the
Respondent further since there is no properly contested disposal
involved herein, this Court interfering with the impugned judgment
at Annexure-6 sets aside the same. To afford proper opportunity
// 3 //
and to have ends of justice, the C.P. No. 576 of 2017 is remitted
back to the Judge, Family Court, BBSR for fresh adjudication of
the proceeding. For there is suffering to the Petitioner for no
responsibility of her and to avoid further loss of time, this Court
directs the Appellant herein to appear before the Judge, Family
Court, BBSR on 18th July, 2023 along with evidence in affidavit on
the date of appearance. On 18th July, 2023 the matter will be posted
before the Judge, Family Court, BBSR and after affording
opportunity of cross examination to the Petitioner therein
Respondent herein, there shall be attempt by the Family Court to
conclude the whole proceeding at least within a period three
months from the date of appearance.
8. This proceeding thus stands disposed of.
(Biswanath Rath)
Judge
(M.S.Sahoo)
Judge
ORDER
13.07.2023
Order No.
15. I.A. No. 110 of 2023
1. This an application for intervention.
2. Since the request herein involved outside of the jurisdiction
in C.P. No. 576 of 2017, this Court feels it appropriate not to
entertain such application. Rejection of such application shall not
stand on the way of party concerned to have his litigation in
appropriate forum.
// 4 //
3. The I.A. stands dismissed.
(Biswanath Rath)
Judge
(M.S.Sahoo)
Judge
ORDER
13.07.2023
Order No.
16. I.A. No. 151 of 2023
1. Heard the submissions of learned counsel appearing for
respective parties.
2. It is at the stage of the matter, this Court finds, there is an
I.A. pending here with the following prayer:-
<Under these circumstances the Respondent/Petitioner prays
there your Lordship's would be graciously pleased to appoint a
receiver or any appropriate arrangement may be made to protect
and preserve the rights of the respondent/opp. Party in respect of
the schedule property and the monthly rent derived there from
And for which act of kindness, the Petitioner as in duty bound
shall ever pray.=
3. This Court feels it appropriate to have an interim
arrangement on the basis of request involved herein particularly
keeping in view that the Petitioner in the trial Court is already
approaching 80 years of age similarly the Respondent therein
Appellant herein also approaching 70 years of age.
4. Looking to the age of both parties without entering into
rights and contentions of the either parties at this stage and leaving
such dispute to be finally adjudicated in the trial proceeding by the
// 5 //
Family Judge, BBSR, this Court simply as a party temporary
measure observes till an outcome in the C.P. No. 576 of 2017 along
with an outcome on the controversy involved herein, the usufructs
arising out of property involved herein shall be enjoyed in 60% and
40% respectively meaning thereby 60% in favour of the Petitioner
therein (Anasuya Mohanty) and 40% in favour of the Respondent
(Sandhyarani Sahoo @ Mohanty) for the time being. This
arrangement shall however subject to final outcome in the main
proceeding.
5. The I.A. thus stands disposed of.
(Biswanath Rath)
Judge
(M.S.Sahoo)
Judge
U.Nayak
Signature Not Verified
Digitally Signed
Signed by: UTKALIKA NAYAK
Designation: JUNIOR STENOGRAPHER
Reason: Authentication
Location: High Court of Orissa
Date: 14-Jul-2023 14:00:02
