Orissa High Court
Rajanikanta Mahalik vs Debashree Mohanty ... Opposite Party on 21 April, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No.248 of 2023
(In the matter of application under Section 19(4) of the
Family Courts Act, 1984).
Rajanikanta Mahalik ... Petitioner
-versus-
Debashree Mohanty ... Opposite Party
For Petitioner : Mr. P.K. Nayak, Advocate
along with Mr. D.
Mohapatra, Advocate
For Opposite Party : Mr. P.K. Mohanty,
Advocate
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING & JUDGMENT:21.04.2025(ORAL)
G. Satapathy, J.
1. This revision is directed the impugned
order dated 26.06.2023 passed by the learned Judge,
Family Court, Cuttack in Criminal Proceeding No.108 of
2022 refusing to set aside the exparte judgment dated
26.04.2022 passed in CRP No.58 of 2020 in an
application U/S.126(2) of CrPC.
2. The relevant facts for the disposal of this
revision are that the OP-wife had instituted a
proceeding U/S.125 of CrPC in Criminal Proceeding
No.58 of 2020 against the petitioner-husband and such
proceeding was disposed of exparte by the learned
Judge, Family Court, Cuttack on 26.04.2022, since on
28.02.2022, the petitioner did not appear in the said
proceeding and he was set exparte. However, the
petitioner-husband filed a petition U/S.126(2) of CrPC
on 11.07.2022 to set aside the exparte order passed in
Criminal Proceeding No.58 of 2020, but the learned trial
Court after taking evidence dismissed the said
proceeding U/S.126(2) of CrPC on the ground that the
petitioner could not establish the good cause for his
non-appearance on the date fixed.
3. In the course of hearing, Mr. Pratap Kumar
Nayak, learned counsel appearing along with Mr.
Durgadatta Mohapatra, learned counsel for the
petitioner submits that although there was a
communication gap between the petitioner and his
counsel, but the learned trial Court has erroneously
appreciated the facts and evidence and refused to set
aside the exparte order passed in Criminal Proceeding
No.58 of 2020, but the non-appearance of the
petitioner-husband was neither intentional nor
deliberate, however, due to a reason beyond control of
the petitioner. Accordingly, Mr. Nayak prays to set
aside the impugned order and restore back the
proceeding in CRP No.58 of 2020 for fresh disposal in
accordance with law.
3.1. In reply, Mr. Pravat Kumar Mohanty,
learned counsel for the OP-wife submits that not only
the petitioner-husband had neglected to attend the
Court, but also the date of hearing of the case was
within his knowledge, however, subsequently when
exparte order was passed, he is taking plea of
communication gap between the petitioner-husband
and his counsel to harass the OP-wife. Accordingly, Mr.
Mohanty prays to dismiss the present revision.
4. After having considered the rival
submissions upon perusal of record, since the plea of
the petitioner is for communication gap between him
and his advocate, this Court right now perused the
impugned order to see as to whether any illegality or
impropriety has been committed by the learned trial
Court in passing of the impugned order. It is the plea of
the petitioner-husband that due to communication gap
between him and his advocate, he could not appear in
the case, but fact remains that the petitioner-husband
himself has admitted in cross-examination that he had
appeared in CRP No.58 of 2020 on 28.08.2020 through
his advocate, but the judgment in CRP No.58 of 2020
was passed on 26.04.2022 and, thereby, there is a gap
of around one year and ten months between the
appearance of the petitioner in the case concerned and
the final judgment passed in this case. It is not
expected for a client to remain idle for such a long
period by taking the plea of communication gap
between him and his advocate. Had there been
communication gap between the petitioner and his
counsel, he could have verified the same by engaging
another counsel.
5. Furthermore, it also appears from the
impugned order that the pleadings of the petitioner
disclose that he could not know about the date of
hearing of the case due to communication gap as his
advocate did not receive his phone calls. True it is that
the advocate might not have received the phone calls
of the petitioner, but it is not expected from him to
remain idle for such a long period of one year and ten
months on the ground of communication gap. Further,
no specific date on which the petitioner's advocate did
not pick up the phone has been stated in the petition.
For clarity, this Court wish to extract the plea on which
the petitioner seeks for setting aside the exparte order,
which has been stated in paragraph-6 of the petition for
setting aside the exparte order, which reads as under:-
"6. The non-appearance of the petitioner on
28.02.2022 is neither deliberate nor
intentional but due to communication gap
with the conducting counsel, he could not be
able to know the progress and status of the
case and it was not possible on his part to
appear in-person before this Hon'ble Court on
the date fixed i.e., 28.02.2022 because, the
Lalbag Police was trying to arrest the
petitioner in Lalbag P.S. Case No.07/2022
corresponding to G.R. Case No.53/2022
pending in the court of Learned S.D.J.M.
(Sadar), Cuttack for awaiting submission of
Final Form."
6. On the other hand, the deposition of the
petitioner as produced by the OP reveals that the
petitioner-husband has admitted that he has appeared
once in Criminal Appeal No.25 of 2021 during the above
period and for the purpose of appearing before the
Court, he has never taken leave during the aforesaid
period. Further, a party cannot blame his lawyer for his
own fault without producing any valid materials to
establish the negligence of his counsel. Had there been
any negligence on the part of the conducting counsel,
the petitioner could have engaged another counsel or
appeared before the Court to permit him to engage
another counsel. It is for the party to remain vigilant
and take stock of the proceeding, to which he is a
party.
7. In the aforesaid facts and circumstance,
especially when the petitioner could not establish his
bona fide or sufficient cause as enumerated in Section
126(2) of CrPC to show that he was prevented by
sufficient cause to appear before the Court on the date
on which exparte order was passed in this case, this
Court does not consider it proper to set aside the
impugned order in this case.
8. In the result, the revision being unmerited
stands dismissed on contest, but in the circumstances,
there is no order as to costs.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 21st day of April, 2025/Subhasmita
Location: High Court of Orissa
