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Multiple maintenance not allowed Calcutta_HC_1

03.04.09
C.O. No.3925 of 2008
Anutosh Datta
Versus
Manasi Datta @ Sona
Mr. Jiban Ratan Chatterjee
Mr. T. N. Halder .For the petitioner
Mr. Sanat Chowdhury For the O.P.
This application under Article 227 of the Constitution of India is filed by the petitioner/plaintiff challenging the order dated 18th December, 2006 and order dated 30th August, 2008 passed by the learned Additional District and Sessions Judge, Fast Track Court, fifth Court at Alipore, 24-Parganas (South), in Misc. Case No.19 of 2005 arising out of Mat. Suit No.83 of 2004.
It is necessary to mention relevant fact for disposing of the present application. The petitioner/plaintiff filed the above Matrimonial Suit before the learned District Judge at Alipore and subsequently the same was transferred to the learned Additional District and Sessions Judge, Fast Track Court, 5th Court at Alipore. During the pendency of the above matrimonial suit the opposite party/defendant filed an application under Section 24 of the Hindu Marriage Act for alimony Pendentilite vide Misc. Case No.19 of 2005. Learned Additional District Judge passed the order on 18.12.2006 in Misc. Case NO.19 of 2005 as ex parte and directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2000/- per month for the minor daughter of the petitioner towards alimony pendentilite and it is further directed to the husband to pay sum of Rs.4,000/- in lump sum towards cost. The petitioner husband filed another application under Section 151 C.P.C. with a prayer for vacating the said ex parte order dated 18.12.2006. Learned Additional District Judge after hearing of both sides rejected the said application on 30.8.2008.
Being aggrieved and dissatisfied against the order dated 18.12.2006 and 30.8.2008 the petitioner/husband filed the present application for setting aside the orders.
Mr. Jiban Ratan Chatterjee learned advocate appearing on behalf of the petitioner 3 pointed out that the learned Court below was vacant since a long time i.e., from August, 2005 to 12.10.2006. On 23.11.2006 the learned Judge joined in the Court and the said Misc. Case No.19 of 2005 was taken up for hearing but the O.P./husband was absent and as such another date was fixed on 18.12.2006 and on that date the learned Judge after taking the evidence of the petitioner/wife disposed of the case as an ex parte as the O.P. was absent. The present petitioner has filed the application under Section 151 C.P.C. for vacating the said order and on 30.8.2008 the learned Judge rejected the prayer of the petitioner after hearing of both sides. Learned Advocate also pointed out that the opposite party/wife is receiving the amount of maintenance as per order of the learned Magistrate under Section 125 Cr. P. C. but the learned Judge without adjustment the said amount passed the order for maintenance pendentilite till the disposal of the Mat. Suit. That order is bad in law and relevant order dated 18.12.2006 is liable to be set aside. In support of the contention Learned Advocate on behalf of the petitioner has cited a case law reported in AIR 1999 Supreme Court 536 (Sudeep Chaudhary v. Radha Chaudhary). Learned Advocate also pointed out that there was the sufficient ground for allowing the application under Section 151 C.P.C. but the Court did not show any liberal approach for allowing the same and as such learned Court refused the prayer on 30.8.2008. In support of the contention learned Advocate has cited a case law reported in AIR 1987 Supreme Court 1353 (Collector, Land Acquisition Anantnag and another v. Mst. Katiji and others).
Considering the above aspects the present application may be allowed for setting aside the above orders passed by the learned Additional District Judge, Fast Track Court. Learned Advocate on behalf of the O.P. has pointed out that when the order was passed by the learned Court as ex parte, the petitioner/husband might approach to the Court for setting aside the said ex parte order under Order 9 Rule 13 of the C. P. C. and in the present matter the petitioner/husband did not approach before the learned Judge for setting aside the same. As such there is no scope to interfere in the orders dated 18.12.2006 and 30.8.2008. The present application is liable to be dismissed.
In support of the contention learned Advocate cited a case law reported in AIR 1964 Supreme Court 993 (Arjun Singh v. Mohindra Kumar and others.)
Heard both sides.
From the xerox copy of the relevant day to day order sheets of the learned Court below filed on behalf of the petitioner it is clear that the learned Judge, Fast Track, 5th Court at Alipore was vacant. In the relevant order No.39 dated 23.11.2006 it states that learned Judge took up the Misc. Case for hearing but the O.P. was absent on that day and as such the learned Court fixed the date on 18.12.2006 as ex parte and on 18.12.2006 the O.P. did not appear and as such the learned Judge disposed of the Misc. Case No.19 of 2005 as ex parte after taking the evidence of the petitioner/wife and in the said order learned Judge directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2,000/- per month for the minor daughter of the petitioner towards alimony pendentilite. In the said order there is no observation regarding the adjustment of the amount awarded under Section 125 Cr. P. C. towards the amount awarded in the matrimonial proceeding under Section 24 of the Hindu Marriage Act. In the written objection filed on behalf of the opposite party/husband in Misc. Case No.19 of 2005, it is clear in paragraph 10 that the interim maintenance of Rs. 1,200/- per month was allowed. However, in the case Sudeep Chaudhury (supra) the Apex Court observed “the amount awarded under Section 125 of the Cr. P. C. for maintenance was adjustable against the amount awarded in the matrimonial proceeding and was not to be given over and above the same.”
There is gross irregularity in the order dated 18.12.2006 passed by the learned Judge, Fast Track Court for not adjustment of the amount awarded under Section 125 Cr. P. C. It is true that the petitioner/husband filed an application under Section 151 C. P. C. and that was dismissed on contest. The said application was filed with reference to a proceeding not in the suit and as such there is no scope to interfere in the said application as per provision order 9 Rule 13 of the C. P. C. However, the said application was filed in a belated way. The Court should adopt liberal approach to consider the matter. But the learned Judge failed to do the same.
Considering all aspects the orders dated 18.12.2006 and 30.8.2008 passed by the learned Additional District Judge Fast Track 5th Court at Alipore in Misc. Case No.19 of 2005 have some irregularities. Orders dated 18.12.2006 and 30.8.2008 are set aside. Learned Additional District and Sessions Judge, Fast Track, 5th Court at Alipore is requested to dispose of the Misc. Case 19 of 2005 afresh after giving an opportunity for hearing of both sides within two months from the date of receipt of the order.
The application is disposed of accordingly. There is no order as to costs.
C.O. No.3925 is disposed of accordingly. Urgent xerox certified copy of the order be supplied to the party, if applied for. (TAPAS KUMAR GIRI, J.)

 

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