Ramola Banerjee vs Sandip Banerjee

S.K. Mookherjee, J.—The present revisional application is at the instance of the wife and directed against an order passed by the learned Additional District Judge, Howrah on 28th February and 30th March, 1992 in Matrimonial Suit No. 188 of 1991, whereby the application u/s 24 of the Hindu Marriage Act was disposed of by learned Additional District Judge on the basis of a consent order by fixing an amount of monthly alimony at Rs. 500/- payable with effect from October, 1991 and litigation cost at Rs. 800/- and by rejecting the application made u/s 151 of the CPC on behalf of the wife inter alia, with a prayer for substitution of the word on consent'' by the words "on contest". Appearing on behalf of the petitioner wife, Mr. Mukherjee has raised a contention that even accepting the order passed by the learned Additional District Judge to have been passed on consent, the same could not have any enforceability in view of non-conformance to requirement of Order 23 Rule 3 of the Code of Civil Procedure. According to Mr. Mukherjee, the agreement should have been in writing and signed by the parties.

Mr. Tapan Dutta, appearing on behalf of the husband opposite party, has raised a twofold contention. In the first place, he has contended that question of payment of alimony pendente lite or litigation cost arises at an interlocutory stage and as interlocutory matter does not require conformance to the provision of Order 23 Rule 3 of the CPC as argued by Mr. Mukherjee, in as much as according to Mr. Dutta, such conformance would be required, where the whole suit is disposed of and a decree comes into existance on the basis of such compromise. According to Mr. Dutta settlement of an interlocutory dispute can be accepted even on the basis of oral statements made by the counsel for the contesting or consenting parties. Secondly, Mr. Dutta has argued that once the giving of consent by or on behalf of the wife is factually found to be correct, the petitioner cannot get any relief in equity jurisdiction by going back on such consented order. The revisional application, therefore, must fail, at least on that ground. Thirdly, according to Mr. Dutta, there is no error of jurisdiction committed by the learned Additional District Judge in passing the impugned order and as such question of interference in exercise on revisional jurisdiction cannot arise. We have given our anxious consideration to the rival contentions raised. In spite of the detailed arguments as noted by us hereinabove, we have to remain conscious that we are exercising a jurisdiction in equity. The substantive order dated 28th February, 1992 it an order ''on consent''. The authority of a counsel to agree to an order in terms of Order 3 Rule 4 of the CPC is well settled. In this particular case there is an additional fact that before us the factum of consent was accepted but contention was raised challenging the legal enforcibility of the consent order, in view of the provision of Order 23 Rule 3 of the Code of Civil Procedure. From the revisional application before us also we do not find any averment assailing any mistaken recording on the part of the court. There is also no challenge in the substantive part of the application to the Order dated 30th March, 1992. We are accordingly disinclined to allow such a contention to be raised after having consent to the substantive order.

In the result the revisional application fails and is dismissed. There will be, however, no order as to cost. Hearing of the suit is expedited.

N.K. Bhattacharjee, J.

I agree.