Orissa High Court

Dr. Diptiman Sahoo vs Dr. Dipmalla Sahoo on 15 November, 2023

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                       MATA No.242 OF 2023

Dr. Diptiman Sahoo                            ....                          Appellant

                                      -versus-

Dr. Dipmalla Sahoo                            ....                        Respondent


Learned advocates appeared in the case:

For appellant                 : Mr. Shib Shankar Mohanty, Advocate


For respondent                : Mr. A. K. Pradhan, Advocate

CORAM:
                 JUSTICE ARINDAM SINHA
                 JUSTICE SIBO SANKAR MISHRA
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         Date of hearing and judgment : 15th November, 2023
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ARINDAM SINHA, J.

1. Appellant-husband is before us in appeal. Impugned is order

dated 20th May, 2023 made under rule 13 in order IX, Code of Civil

Procedure, 1908, setting aside exparte judgment dated 30th

September, 2022 dissolving the marriage, to restore the civil

proceeding for hearing and decision.

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2. Mr. Mohanty, learned advocate appears on behalf of

appellant-husband and submits, impugned order should be set aside in

appeal. Sufficient cause was not shown in the application. Allegations

made regarding respondent-wife having had filed transfer petition

before this Court were dealt with by the trial Court on earlier order

dated 30th September, 2022. By said order the trial Court on

dismissing the application of respondent-wife, not served on his

client, later pronounced judgment in open Court. There cannot be

change of opinion by the trial Court itself to thereafter set aside the

judgment

3. Mr. Pradhan, learned advocate appears on behalf of

respondent-wife. He submits, the civil proceeding was filed in the

family Court at Bhubaneswar. His client being resident of Cuttack

filed transfer petition in this Court. The petition was disposed of by

order dated 7th March, 2022. The learned single Judge though did not

allow the transfer but made directions to facilitate his client's

appearance, for contesting the civil proceeding before the family

Court at Bhubaneswar. In the circumstances, his client took steps

pursuant to said order dated 7th March, 2022 by filing application. The

papers were misplaced in the trial Court and while his client was

awaiting result on her application regarding her participation in the

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civil proceeding, she came to learn that the proceeding had been set

ex-parte against her.

4. On aforesaid discovery his client filed for setting aside order

dated 10th May, 2022, by which the civil proceeding had been set

down exparte against her. The trial Court dealt with the application

without directing issuance of notice. The application stood dismissed

by order dated 30th September, 2022 and later, the judgment was also

passed. He submits, the trial Court thereafter accepted causes shown,

in his client's subsequent application, to correctly set aside the

exparte judgment.

5. We have perused the application made by respondent-wife for

setting aside order dated 10th May, 2022, handed up by Mr. Pradhan.

We appreciate it to be for recall of order dated 10th May, 2022.

6. For purpose of adjudicating the appeal it is necessary for us to

state the facts. Respondent-wife did get notice/summons of the civil

proceeding filed by appellant-husband under section 13(1)(i-a) of

Hindu Marriage Act, 1955, for dissolution of marriage. She moved

this Court for transfer of the civil proceeding by TRPC no.76 of 2022.

The transfer petition was disposed of by order dated 7th March, 2022

of the learned single Judge. As submitted on behalf of respondent-

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wife, transfer was not directed but there were other directions to

facilitate her participation in the civil proceeding.

7. Order sheet stands annexed to the appeal papers. We find,

after 7th March, 2022 three orders were made by the trial Court,

respectively on 4th and 27th April, 2022 and 10th May, 2022. The

orders are reproduced below.

"Order dtd.4.4.2022:

Petitioner is present and files postal receipt and postal tracking report. Respondent is absent. Bar seeks accommodation. Put up on 27.4.22 for appearance. Petitioner files service affidavit. Order dtd. 27.4.2022:

Petitioner is present. Respondent is absent. Bar seeks accommodation. Put up on 10.5.22 for appearance / consideration of service affidavit.

Order dtd. 10.5.2022 :

Petitioner is present. Respondent is absent on call. Perused the postal receipt, postal tracking report. Service of summons of the respondent is held to be sufficient. Hence the respondent is set exparte. Put up on 19.5.22 for hearing exparte."

(emphasis supplied)

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Said Court by order dated 30th September, 2022, while rejecting

respondent-wife's recall application said, inter alia, respondent-wife

had submitted her petition on 7th April, 2022 received by the bench

clerk but the papers went missing. Hence, while respondent-wife was

awaiting outcome of her petition, aforesaid order dated 10th May,

2022, setting down the case exparte for hearing, had come to be

made. On 10th May, 2022 respondent-wife had not appeared. The civil

proceeding was thereafter called on some dates, when petitioner too

was absent but on later date his evidence was tendered. There was no

cross-examination on absence of respondent wife and his evidence

was closed. Date for argument was fixed. Petitioner thereafter was

absent on 14th July, 2022 and 11th August, 2022. The next date of 5th

September, 2022 was when petitioner's learned advocate advanced

arguments, upon hearing which the trial Court fixed 30th September,

2022, for judgment. It is after this and before 30th September, 2022

that respondent-wife had applied for recall of aforesaid order dated

10th May, 2022.

8. In facts and circumstances stated above, the trial Court by

order dated 30th September, 2022, on reliance upon judgment of the

Supreme Court in Arjun Singh v. Mohindra Kumar, reported in

AIR 1964 SC 993, said that after conclusion of hearing the Court

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could have passed judgment immediately thereupon or fixed later date

for delivery of it. After conclusion of hearing and pending delivery of

judgment there is nothing more to be heard in the suit. Thus, the

learned Judge felt that the recall application could not be allowed and

therefore, judgment must be delivered. The learned Judge on having

passed said order dated 30th September, 2022, then went on to deliver

the judgment. We note from said order dated 30th September, 2022,

the learned Judge indicated reliefs available to respondent-wife in the

circumstances of judgment made exparte against her. The indications

are four in number. Respondent-wife chose to apply for setting aside

the judgment. On considering the application and evidence adduced

therein, the Court below made impugned order setting aside the

judgment.

9. Mr. Mohanty relies on judgment dated 16th December, 2008

in Civil Appeal no. 7316 of 2008 (Mahesh Yadev and another v.

Rejeshwar Singh and others). He submits, declaration of law was

that orders setting aside exparte decree should be supported by

reasons. According to him, impugned order does not bear reasons. We

reproduce below paragraph 6 from impugned order.

"6. The petitioner while deposing in the Court as P.W.1 has categorically corroborated the averments

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made in the petition. She has further deposed that she has approached the Hon'ble Court in TRP(C) No.76 of 2022 for transfer of this case to the Court of Judge, Family Court, Cuttack and though she has filed the order of Hon'ble Court, but the case was disposed of ex parte. Her sworn testimony has not been shaken by the adversary. The opposite party who has examined as O.P.W.1 has deposed that neither the petitioner nor her counsel appear before the Court while the case was called for hearing and the absence of the petitioner was intentional and deliberate."

(emphasis supplied)

There is clear reason in impugned order as appears in above

reproduced paragraph therefrom. Respondent-wife was found to have

categorically corroborated her averments for setting aside the exparte

judgment. She deposed about approaching the High Court for

transfer. She said that she had filed the order of the High Court but

the case was disposed of exparte. The Court noted, her sworn

testimony had not been shaken by her adversary.

10. In Mahesh Yadev (supra) before the Supreme Court was

impugned order of the High Court, setting aside the order by which

the exparte judgment and decree had been set aside. The Supreme

Court set aside impugned order of the High Court and also made

observation regarding reasons to be given for setting aside exparte

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judgment/decree. We are satisfied that impugned order carries reasons

and the reasons are good. Hence, impugned order is confirmed. Joint

submission from the Bar is that parties will cooperate for early

disposal of the civil proceeding.

11. The appeal is dismissed.

( Arindam Sinha ) Judge