Angana Guha vs Sumanta Guha

Sabyasachi Bhattacharyya, J

The petitioner has challenged two orders. By virtue of the first impugned order, the trial court rejected an application for stay, filed by the petitioner on the ground that the husband had not cleared off all the arrears of alimony. By the second impugned order, since the petitioner was not ready to participate in the cross-examination of P.W. 1, such evidence was closed by the trial court.

Learned counsel for the petitioner submits that the trial court did not advert to the merits of the said application by a proper adjudication as to the arrears due, but rejected the application for stay without going into the merits of such application. The second impugned order was consequential and also be set aside.

Learned counsel for the opposite party-husband, on the other had, submits that the husband had cleared off all the arrears, which was considered on merits by the trial court. It is further submitted that the trial court adverted to the merits of the application contrary to the allegations made by the petitioner-wife. It is further contended on behalf of the opposite party-husband that the wife has been delaying the suit unnecessarily throughout the evidence stage and, as such, the trial court was justified in closing the evidence for non-participation by the wife, since there was no stay order passed in such suit previously.

It is seen from the first impugned order, being order no. 37 dated March 28, 2019, that the trial court merely stated that no documents were filed in that case from the side of respondent to show that Rs.60,000/- had been paid till date as alimony and litigation costs and hence, it was very difficult to ascertain that exactly Rs.30,000/- was due as alimony or not. It is further observed that no document had been filed from the side of the petitioner also to prove that only Rs.10,000/- was due. The trial court observed that the matter would be decided at the time of hearing of the petition filed under Section 151 of the Code of Civil Procedure from the side of respondent, but the respondent was directed to accept Rs.10,000/-, which the petitioner was paying on that day. Unfortunately, the trial court proceeded as if the husband was already paying a sum of Rs.10,000/- to the wife without ascertaining as to whether there was actually any arrears on the part of the husband, in view of failure of the opposite party-husband to prove by cogent receipts before the trial court that all the arrears of alimony had already been cleared off.

In such view of the matter, the wife was very much entitled to pray for stay of the suit in the event it was found that the husband had not cleared off all the arrears of alimony.

In such view of the matter, C.O. No. 3131 of 2019 is allowed, thereby setting aside both the impugned orders and directing the trial court to rehear and decide afresh the application filed by the petitioner-wife for stay of the suit for alleged non-payment of the arrears of alimony by the opposite party-husband upon a clear adjudication and ascertainment of any arrears, which might have remained unpaid.

Both the parties shall be at liberty to adduce sufficient evidence to prove their non-payment or payment, as applicable, of such entire arrears of alimony, for the court to come to a conclusion on merits on the application for stay filed by the petitioner-wife.

Such disposal of the application shall be concluded by the trial court within November 15, 2019.

The trial court will, thereafter, proceed to hear out the suit, depending on the result of the application for stay of the petitioner-wife. In the event it is found that the opposite party had already cleared off all the alimony, the trial court shall expedite the hearing of the pending application and, thereafter the suit itself at the earliest.

Needless to say, in the event the trial court comes to a finding that all the arrears of alimony had not been cleared off by the husband, the trial court would be free to pass an order of stay of all further proceedings in the suit.

The consequential order, being order No. 34 dated March 28, 2019, is also set aside, thereby reopening the opportunity of cross-examination of the said P.W., to be completed upon disposal of the application for stay.

There will be no order as to costs.

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of necessary formalities.