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Utpal Kumar Samanta vs Tulika Samanta on 7 January, 2020

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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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