Trilochana Nayak vs Chanchala Nayak

Mr. Rath, learned advocate appears on behalf of appellant-husband and submits, his client is aggrieved by order dated 25th January, 2022 dismissing the application made under order IX rule 9, Code of Civil Procedure, 1908 for restoration of the civil proceeding. It was dismissed on 22nd December, 1999. He submits, not only was the application dismissed but cost imposed at ₹5,000/-on his client, who is unable to even pay the interim maintenance of ₹150/- per month.

Mr. Mohanty, learned advocate appears on behalf of respondent-wife and opposes the appeal. He submits, meager amount of monthly maintenance are in arrears. On top, appellant did not comply with the direction to pay cost of ₹5,000/- to his client.

It appears from impugned order appellant had examined himself in support of the application. The record was posted for argument on 28th September, 2021, when counsel for both parties were present and the matter heard in part. It was posted to next date on 26th October, 2021 for further argument, from which time appellant did not appear. Hence, the application stood dismissed on cost imposed at ₹5,000/-. Reason given is that appellant’s pleadings and evidence is not reliable because he did not continue prosecuting the application.

Question arises as to whether when appellant had appeared in support of the application, examined himself and advanced some argument, the application if could be dismissed under order IX rule 8. The provision is reproduced below.

“8. Procedure where defendant only appears.—Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.”

As aforesaid, appellant did appear in support of the application, examined himself and advanced argument in part. He had also invoked in the application section 151 in the Code, a provision saving inherent power of the Court for such order as may be necessary to be made for, inter alia, the ends of justice. Appellant having had invoked section 151 in the Code before the Family Court and appeal being continuation of suit we, in the interest of justice, restore the civil proceeding itself. This direction, in our view, will serve the ends of justice, where both the parties are of advanced age and thereby might have adjudication on merits as expeditiously as possible. We make it clear, it will be open to the trial Court to make such direction in accordance with law regarding interim maintenance remaining in arrears.

The appeal is disposed of.

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