AI Structured Summary
Not yet generated for this judgment
Judgment
The present appeal is directed against the order dated 5th April, 2017 passed by the learned Single Judge in TRP (Civil) No.45/2017 filed by the Respondent-wife seeking transfer of C.M.A. No.49/2016 arising out of MAT Case No.1/2011 from the court of learned Civil Judge (Sr. Divn.), Jharsuguda to the court of learned Civil Judge (Sr. Divn.), Aska.
By the impugned order, learned Single Judge has allowed the said application acceding to the prayer of the Respondent-wife while noting that the Respondent was adopting "deliberate tactic for lingering the proceeding" and asking her to co-operate (with) the lower court in the timely disposal of the case‟.
In the present appeal at the instance of the husband, this Court on 18th April, 2017 stayed the aforementioned order dated 5th April, 2017 passed by the learned Single Judge. That interim order is continuing.
The background of the present case is that the husband filed MAT Case No.1/2011 in the court of learned Civil Judge (Sr. Divn.), Jharsuguda under Section 13 of the Hindu Marriage Act for grant of a decree of divorce. Apparently, the said suit was decreed exparte against the wife on 19th August, 2014.
It appears that the wife, claiming to be unaware of the above development, filed TRP (Civil) No.221/2015 before this Court seeking transfer of MAT Case No.1/2011 from the court of learned Civil Judge (Sr. Divn.), Jharsuguda to the court of learned Civil Judge (Sr. Divn.), Aska where she was stated to be residing with her son and her father.
It appears that on 5th January, 2016, the said petition was first allowed by the learned Single Judge, whose attention had not been drawn to the fact that in the meanwhile MAT Case No.1/2011 itself had been decreed ex parte. This led the husband to file Misc. Case No.162/2016 before the learned Single Judge to recall the aforementioned order dated 5th January, 2016.
On 24th June, 2016, learned Single Judge allowed the Misc. Case No.162/2016, recalled the earlier order dated 5th January, 2016 and granted liberty to the wife to file an application under Order 9 Rule 13 C.P.C. in the court of the learned Civil Judge (Sr. Divn.), Jharsuguda for setting aside the exarte decree of divorce .
In the meanwhile, on the strength of the order dated 5th January, 2016, the wife filed C.M.A. No.49/2016 in the court of the learned Civil Judge (Sr. Divn.), Jharsuguda. After the order dated 24th June, 2016, she again approached this Court in TRP (Civil) No.45/2017 seeking transfer of the aforementioned C.M.A. No.49/2016 from the court of learned Civil Judge (Sr. Divn.), Jharsuguda to the court of learned Civil Judge (Sr. Divn.), Aska. It is in this TRP (Civil) No.45/2017 that the impugned order dated 5th April, 2017 has been passed.
Having heard the submissions of Mr. A.K. Mohanty, learned counsel appearing for the Appellant-husband and Mr. S.S. Rao, learned counsel appearing for the Respondent-wife, the Court is of the view that there is no necessity whatsoever for transferring of the proceedings from the court of learned Civil Judge (Sr.Divn.), Jharsuguda to the court of learned Civil Judge (Sr. Divn.), Aska particularly in view of the earlier order dated 24th June, 2016 passed by the coordinate learned Single Judge in TRP (Civil) No.221/2015 which order has already become final. It is clear that the wife has pursuant thereto filed an application (C.M.A. No.49/2016 ) in the court of the learned Civil Judge (Sr. Divn.), Jharsuguda under Order 9 Rule 13 C.P.C. for setting aside the ex parte divorce decree. In other words, there was no occasion for her to file another transfer petition in this Court to achieve a result opposite to the result in TRP (Civil) No.221/20015.
The result of the above proceedings is that for the last over four years, despite the order dated 5th April, 2017 of the learned Single Judge being stayed by this Court, the application i.e. C.M.A. No.49/2016 filed by the wife under Order 9 Rule 13 C.P.C. has not moved an inch. This is not in the interests of justice and definitely not in interests of either of the parties to the litigation.
In that view of the matter, the following directions are issued.
(1) The impugned order dated 5th April, 2017 passed by the learned Single Judge in TRP (Civil) No.45/2017 is set aside.
(2) The wife‟s application, C.M.A. No.49/2016 now pending before the learned Civil Judge (Sr. Divn.), Jharsuguda under Order 9 Rule 13 C.P.C. will be listed before that court on 1st October, 2021. On that date the parties, i.e., both the husband and the wife will appear in person either physically or in virtual mode before the said court and neither of them shall seek any unnecessary adjournment.
(3) Learned Civil Judge (Sr. Divn.), Jharsuguda will proceed to dispose of the said application in accordance with law within a period of one month thereafter and in any event not later than 1st November, 2021.
It is made clear that this Court has not expressed any view on the merits of the respective contentions of the parties. Leaving it open to them to urge all their respective contentions before the learned Civil Judge (Sr. Divn.), Jharsuguda in accordance with law, the writ appeal is disposed of in the above terms.
An urgent certified copy of this order be issued as per rules.