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Sn 7.1.2020 C.O. 3705 of 2019
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UTPAL KUMAR SAMANTA VS. TULIKA SAMANTA
Mr. Tarun Kumar Ghosh(II)
Ms. Arundhuti Banerjee
..for the petitioner
Ms. Seba Roy
Mr. Sukalpa Seal
..for the opposite party
This is an application filed by the husband in
M.A.T. Suit No. 22 of 2010, pending before the learned
Additional District Judge, 4th Court, Alipore, 24
Parganas(South).
The petitioner is aggrieved by an order dated
July 24, 2019 by which an application under Section 151 of
the Code of Civil Procedure filed by the petitioner for
modification of the order of maintenance pendente lite
arising out of Misc. Case No.15 of 2010 was rejected with
cost of Rs.20,000/‐.
The opposite party/wife filed an application
under Section 165 of the Evidence Act for production of
certain documents. The application under Section 151 of the
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Code of Civil procedure was dismissed on the ground that
although the prayer for modification of the order of
maintenance pendente lite was made as the
husband/petitioner had resigned from his place of
employment in December, 2016, no document showing
resignation had been filed before the Court. The Court came
to a conclusion that fraud was practiced upon the Court and
that in the absence of a letter of resignation the order of
maintenance pendente lite could not be modified. Cost of
Rs.20,000/‐ was imposed.
Records reveals that along with the application
under Section 151 of the Code of Civil Procedure a
supplementary affidavit was filed by the husband in which a
letter issued by his erstwhile employer had been annexed
showing acceptance of resignation and consequent release.
Although the said document was a part of record before the
learned Court below, the learned Court below without
considering the same had rejected the said application upon
imposing cost. The opposite party/wife submits that the
learned Court below ought to have directed the husband to
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produce the passport, income tax return for the period 2017‐
18, 2018‐19, 2019‐20 and other documents in order to
ascertain the truth in the plea of reduction of income and
unemployment.
It is further contended that the husband resides
in Bangalore, was gainfully employed in Bangalore and he
visits Kolkata very often by flight. The contention of the
petitioner, that the petitioner is job‐less has been vehemently
opposed by the opposite party/wife. It is further stated that
there are admitted dues approximately of Rs.2,50,000/‐ and
the wife and child are facing financial hardship due to such
irregular disbursement of maintenance amount, which was
directed by the learned Court below. She prays that the
revisional application should be rejected.
The opposite party/wife has also filed an
application bearing C.A.N.12576 of 2019, praying for a
direction upon the husband to pay arrear dues.
C.A.N.12576 of 2019 is treated as on day’s list
with the consent of the parties.
Having considered the submissions made by the
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respective parties and having gone through the records, in
my view, the application under Section 151 of the Code of
Civil Procedure filed by the husband should have been
decided on evidence, both documentary and oral.
The order impugned dated July 24, 2019 is set
aside.
The petitioner will file a fresh application for
modification of the order of maintenance pendente lite
passed in Misc. Case No.15 of 2010 in view of the changed
circumstances as claimed by him owing to his resignation.
Such application should be filed within two weeks from
date.
The opposite party/wife will be at liberty to file a
written objection within two weeks thereafter.
The application should be heard by the learned
Court below afresh without being influenced by the order
impugned before this Court on the basis of the documents
and oral evidence to be adduced or submitted by the
respective parties.
The petitioner will be at liberty to proceed before
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the learned Court below in accordance with law for
implementation and/or execution of the order of
maintenance pendente lite for liquidation of the arrear dues.
If such application is filed the learned Court below will
dispose of the same expeditiously as the arrears are
admitted.
The application to be filed by the husband
should be disposed of within a period of two months from
the date of filing.
Under such circumstances, this revisional
application is disposed of. The C.A.N.12576 of 2019 is also
disposed of accordingly.
There will be however no order as to costs.
Urgent photostat certified copy of this order be
given to the parties on priority basis, if the same is applied
for.
(Shampa Sarkar,J.)
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