Kshanaprava Panda vs Jogesh Chandra Sukla

“3.

This Court records the statement of Mr. Mohapatra, learned counsel for the Appellant-Wife that by filing written statement, the Respondent therein has already brought such question. In such event either dismissal of application under Order 7 Rule 11 of C.P.C. or dismissal of the present Appeal may not stand on the way of the Respondent therein Appellant herein in bringing appropriate issue for adjudication in the trial of the C.P. No.88 of 2021. It is observed that in the event such issue is brought by the Appellant herein, the Trial Court shall do well also giving on adjudication of such issue and deciding the same without being influenced by any of the observation of the impugned order.” (Emphasis supplied)

“Additional Issues

i.

Is the petitioner/husband precluded U/S-12 and U/O-9 Rule-9 of C.P.C to institute a further suit for divorce in particular cause of action?

ii.

That, is the suit for divorce is suffered for res-judicata?

iii.

Is the plaint of the petitioner liable to be rejected U/O-7 Rule-11 of C.P.C?

iv.

Is the present suit is barred by limitation after dismissal of earlier suit for same proceeding?

V. Whether the parties have any child and in whose custody she will reside?”

“OBJECTION FILED BY THE PFTITIONER

The humble objection on behalf of the petitioner most respectfully begs to state as follows:-

1)

That, the petition as laid by the O.P is not maintainable in the eye of law, and hence the O.P. is not entitled to any relief what-so-ever.

2)

That, the Hon'ble High Court of Orissa in MATA No.l34 / 2023 has not directed to frame any additional issue in the instant C.P. and further, the evidence in this case has already been commenced.

3)

That, after commencement of evidence, framing of additional issue upon the petition of either party is not permissible;

4)

That, the petition filed by the O.P. to frame additional issue is nothing but only to linger the proceeding and further these additional issues are not at all required to be framed in the instant ease.

In the above circumstances, the petition filed by the O.P. needs to be rejected.”

“Issues

i)

Whether the suit is maintainable?

ii) Whether the plaintiff/petitioner has any cause of action to file the suit?

iii) Whether this present suit by the petitioner is barred by limitation?

iv)Whether this suit is hit by the principle of res-judicata u/s 11 of the CPC?

v)

Whether the petitioner has made out a ground for cruelty against the respondent?

vi) Whether the respondent deserted the petitioner?

vii) Whether the petitioner is entitled to the relief prayed by him?

viii) Whether the petitioner and respondent has any issue or children out of their wed lock and whether is it true that the respondent gave birth on 27.4.2010 a girl child from the petitioner?

ix) Whether the respondent has sufficient means to maintain herself and her child?

x)

Whether the petitioner has sufficient income to pay maintenance to his respondent-wife and also pay permanent alimony to the respondent?

xi) Whether the petitioner committed cruelty on the respondent and attempted to cause miscarriage to his child and neglected to provide food and other essential things to his respondent-wife and drove out the respondent from his house?

xii) Whether any meeting has been taken place over the dispute between the petitioner and respondent on 29.7.2009 and the father of the respondent deposited Rs.25,000/- as further dowry in the account of the petitioner?

xiii) Whether the father of the respondent paid cash of Rs.50,000/- for purchase of Hero Honda motor cycle by the petitioner and another cash of Rs.10,000/- towards dresses and provided gold and silver ornaments and all types of household articles at the time of the marriage of the petitioner with the respondent?

xiv)To what other relief the plaintiff/petitioner is entitled to?”

“I have heard the submissions of both the sides. I also saw the observation of the Hon'ble Court in MATA 134 of 2023 in order No.4 dtd. 8.8.2023. The petitioner has filed his examination in chief in support of his suit in this court on 13.4.2023 and this suit is posted for cross examination of PW- 1 Jogesh Chandra Sukla. The respondent on 4.7.2023 filed the order of stay in the proceeding granted by the Hon’ble Court in I.A. No.148 of 2023 on 17.5.2023 arising out of MATA No.134 of 2023. The order of the Hon’ble Court granting stay was filed after the examination in chief of the witness is filed in the suit and the order was passed by the Hon’ble Court in MATA 134 of 2023 on dtd. 8.8.2023.

Since the petitioner has already commenced trial in this suit at this stage it is not desirable to re-caste or re-frame the issue or additional issues. Already the respondent wanting the issues such as on limitation and res-judicata are there in the issue i.e. framed in the suit on 13.4.2023. Regarding the issue of custody of the child I think with the existing 14 issues i.e. framed in the suit and answers therein is sufficient enough to adjudicate the matter at hand and at this stage the additional issues suggested by the respondent are again framed it may lead to repeatation and delay in the examination of witnesses and determination of the suit. Since two major issues raised by the respondent are already framed i.e. on the point of limitation and issue no.(iv) i.e. the issue of res-judicata, no additional issues required to be framed in the suit. The respondent wanting order VII rule XI CPC should itself be made an issue in the suit is not legally tenable. So far as the issue of custody of the child I find that, that issue need not be framed in the suit be-cause on reading the plaint and written statement it shows that the child of the petitioner and respondent is already in the custody of the respondent and nothing revealed from the plaint and W/S that the custody of the child i.e. the daughter of the petitioner and respondent is no way denied by the petitioner/plaintiff in his plaint nor he has asked for any relief for the custody of his child in his suit. It is evident that there is award of maintenance, u/s-125 CrPC, CMC No. 7 of 2011, J.M.F.C., Khandapada to respondent and her child and proceeding under the proceeding under Domestic Violence Act(CMC No. 4 of 2015, J.M.F.C., Bhapur). I think with the existing issues the issue of the custody of the child can be answered in the suit as an auxiliary issues. No petition is also filed u/s 26 of the Hindu Marriage Act regarding the custody of the child (daughter). That issue of custody of child of the petitioner and respondent need not be framed, as it is an auxiliary issue can be answered while deciding the suit. The other issues i.e. prayed for additional issue i.e. u/s 12 of CPC and Order IX Rule 9 CPC i.e. bar to a fresh suit by the petitioner/plaintiff. Issues in that light is already there being covered under Issue No. (i) & (iv) of that suit. I think there is much arguable matter in this suit by the petitioner and in para-5 of his plaint he has stated that he was for some days i.e. near about a month in the jail hazat in connection with a criminal case instituted by his wife at Fategarh P.S. and I think the petitioner is prevented from sufficient cause in unable to prosecute his earlier suit and the relief he has asked for has arguable matters and those have to be answered. Due to said reason the petition for framing of additional issues at this stage of the suit filed by the learned advocate for the respondent is devoid of any merit and the same is rejected.” (Emphasis supplied)