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13.01.2020
srm
C.O. No. 4237 of 2019
Sri Asish Mallick
Vs.
Smt. Soma Mallick
Mr. Tanmoy Mukherjee
…for the Petitioner/Husband.
Mr. Arindam Banerjee,
Mr. Amal Kumar Banerjee
…for the Opposite Party/Wife.
This revisional application has been filed by the
respondent/husband in Matrimonial Suit No.240 of 2002. By the orders
impugned dated September 26, 2019 and November 29, 2019 both passed
by the learned Additional District Judge, 4th Court at Howrah, the prayer
for adjournment of the petitioner was refused and the evidence of the
petitioner was closed. November 29, 2019 was fixed for argument, and
by an order dated November 29, 2019 the further prayer for adjournment
of the petitioner was rejected and the hearing of the suit was proceeded
with and December 20, 2019 was fixed for judgement. Thereafter, this
revisional application was filed and the orders impugned were stayed.
It appears that the petitioner had filed an application for
amendment of the written statement. The said application for
amendment of the written statement was allowed by an order dated
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April 18, 2019. The learned Court below had directed the petitioner to
take steps in terms of Order VI Rule 18 of the Code of Civil Procedure.
The learned Court below fixed April 30, 2019 for taking such steps.
The order sheet reveals that there was a prolonged cease work of
the learned Advocates of the local Bar Association on and from April 24,
2019 to May 29, 2019 and the learned Court below had fixed July 16, 2019
for taking steps under Order VI Rule 18 of the Code of Civil Procedure.
On that date amended written statement was filed. It further appears
that the petitioner filed an application for modification in Misc. Case
No.28 of 2019 for modification of the order of maintenance pendente lite
on account of his retirement from service. On September 26, 2019 the
petitioner prayed for an adjournment on the ground that the suit may
not be disposed of until the application for modification of the order of
maintenance pendente lite was disposed of finally. The learned Court
below rejected the application for adjournment and directed the
petitioner to adduce evidence. The petitioner did not adduce evidence
on that date and the evidence of the petitioner was closed. November 29,
2019 was fixed for argument. On November 29, 2019 the petitioner again
prayed for adjournment on the ground that an application for transfer of
the suit had been filed before the learned District Judge, which was
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registered as 120 of 2019. The learned Court below rejected the
application for adjournment, proceeded with hearing of the suit,
concluded the hearing of the suit and fixed December 20, 2019 for
delivery of the judgement.
From the orders impugned, it appear that the written statement of
the petitioner was filed within the extended time given by the learned
Court below and as such written statement should be accepted. Next, it
appears that admittedly an application for modification has been filed
before the learned Court below and the said application was also
requires to be disposed of expeditiously.
The contention of the learned Advocate for the opposite
party/wife that the learned Court below was under direction of this
Court for expeditious disposal of the suit and as such the prayers for
adjournment of the husband/petitioner was rightly rejected, inasmuch
as, the said applications were filed only to delay the proceedings.
In adversely form of litigation specially in a matrimonial matter
substantial justice can be done when both parties are allowed to proceed
in free and fair manner. The effect of such disposal of such suit has a
social impact and also affect the children and as such complete justice
would be sub‐served if both the parties are allowed to contest by filing
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their pleadings and adduce their evidence. Thus, the orders dated
September 26, 2019 is set aside directing the learned Court below to
allow the husband to accept the additional written statement and adduce
evidence as also hear out the application for modification. By setting
aside the order dated September 26, 2019, the order dated November 29,
2019 cannot survive and the same is also set aside accordingly. This
Court is conscious of the fact that there is an order of a co‐ordinate Bench
directing disposal of the matrimonial suit.
Under such circumstances, Matrimonial Suit No.240 of 2002 shall
be disposed of within a period of three months from the date of
communication of this order by accepting the additional written
statement, allowing the husband to depose as also the application for
modification of the order of maintenance pendente lite should be disposed
of.
This Court has not gone into the claims and counterclaims of the
parties. The leaned Court below will proceed in accordance with law.
With regard to the application for transfer, the learned Advocate
for the petitioner upon instruction from his client submits that if his
client is allowed to adduce evidence then his client will not proceed with
Misc. Case No.122 of 2019.
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Liberty is given to the petitioner to take immediate steps for
withdrawal of such Misc. Case No.122 of 2019 and file information
and/or copy of this order before the learned Trial Judge.
As the suit has been pending for a long time the period mentioned
hereinabove is mandatory.
This revisional application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be
given to the parties on priority basis.
(Shampa Sarkar, J.)
