Orissa High Court
Priyadarshini Purohit @ vs Sankatmochan Nayak on 4 November, 2024
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 29 of 2024
Priyadarshini Purohit @ .... Appellant
Priyadarshani Purohit
-Versus-
Sankatmochan Nayak .... Respondent
Advocates appeared in this case :
For Appellant : Mr. S.K. Sahoo, Advocate
For Respondent : Ms. S. Samantray, Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Date of hearing and Judgment: 4th November, 2024
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ARINDAM SINHA, J.
1. Mr. Sahoo, learned advocate appears on behalf of
appellant-wife. He submits, his client is aggrieved by judgment
dated 2nd January, 2024 of the Family Court decreeing
restitution at instance of respondent-husband. Though the
judgment was made ex-parte, the appeal was filed in time.
2. On query made Mr. Sahoo submits, soon after service
of the summons his client filed for transfer of the civil
proceeding to Family Court, Rourkela, where she was and is
still residing. Direction for notice was issued on 21st December,
2023. However, soon thereafter impugned judgment dated 2nd
January, 2024 was passed, rendering the transfer application
infructuous.
3. Ms. Samantray, learned advocate appears on behalf of
respondent-husband and submits, her client took every step
necessary for noticing appellant in his restitution case.
Appellant left his company without reasonable cause. This was
found by the Family Court in impugned judgment, to decree
restitution. She opposes the appeal.
4. Perused order sheet. It appears the petition for
restitution was taken cognizance of on 19th September, 2022.
More than one attempt was made to serve notice thereof to
appellant by registered post and process server. Endorsement
made by the postal authority was that she had left the address.
Ultimately, the summons was served by registered post and the
Family Court took note of the track consignment by order dated
12th December, 2023. Report was, 'Item delivered (addressee)',
on 23rd November, 2023. Hence, on prayer of respondent, by
said order the proceeding was set ex-parte against appellant.
5. Further perusal and scrutiny of order sheet does not
show that the Family Court was made aware that a transfer
petition had been filed by appellant. Going by submission made
on behalf of appellant that direction for notice in the transfer
petition was issued on 21st December, 2023 and impugned
judgment made on 2nd January, 2024, it is clear, filing of the
transfer petition could not have been to knowledge of the
Family Court. Last date of hearing of the proceeding in the
Family Court was 20th December, 2023, day prior to direction
for issuance of notice in the transfer petition. Impugned
judgment followed on 2nd January, 2024.
6. So far as the proceeding in the Family Court is
concerned, we are satisfied that it was done in accordance with
law. There is no dispute that summons in the proceeding was
served on appellant. She, instead of taking steps to appear in the
proceeding, filed for transfer of it and thereafter appeal. We say
this because the appeal was presented on time. Stamp reporter
says total period occupied was 28 days. Hence, there is lawful
presumption that appellant was on notice of the proceeding
pursuant to the receipt of summons. She chose not to make any
communication to the Family Court pursuant to service of the
summons, at least to inform the Court that she had moved for
transfer.
7. Moving on to merits of the case Mr. Sahoo submits,
respondent meted out cruelty to his client, which is why she
filed for divorce. Respondent is participating in the divorce
proceeding. In the circumstances, impugned ex-parte judgment,
if left outstanding, will cause his client prejudice in the divorce
case. Ms. Samantray reiterates, there is no error in impugned
judgment nor any could be pointed out on behalf of appellant.
8. Perceived prejudice is the only ground of appeal.
Appellant's case is that she is prosecuting the divorce
proceeding filed by her and would want to do so without being
impaired by impugned judgment, made ex-parte against her.
Appellant preferred appeal to this Court instead of filing for
recall of the ex-parte judgment, keeping in mind that to
appellant, Sonepur is nearer than the High Court.
9. We have not been shown any error on merit in
impugned judgment. Appellant did not file for recall of
impugned judgment in the Family Court at Sonepur obviously
because she having first filed for transfer, then filed for divorce
and preferred appeal. It is also true that appellant was not heard
on her contention in the restitution case but she can, at best,
assert circumstances because there was no fault or irregularity
in the procedure followed by the Family Court, as already
observed by us. In the premises, directing remand for
adjudication on respondent's contention for restitution, when,
inter alia, appellant has already filed for divorce, will add to
multiplicity of judicial proceedings. Rule 33 in order XLI, Code
of Civil Procedure, 1908 provides for power of appeal Court to,
inter alia, make any order as the case in appeal may require. In
exercise of the power we set aside impugned judgment. On
doing so we make it clear that respondent may refer to the
judgment and other materials in record of the restitution
proceeding, to further his case in the civil case for dissolution
of the marriage filed by appellant.
10. The appeal is accordingly disposed of.
(Arindam Sinha)
Judge
(M.S. Sahoo)
Judge
Jyoti
Location: HIGH COURT OF ORISSA
