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Judgment
Shampa Sarkar, J
This is an application filed by the husband in M.A.T. Suit No. 22 of 2010, pending before the learned Additional District Judge, 4th Court, Alipore, 24 Parganas(South).
The petitioner is aggrieved by an order dated July 24, 2019 by which an application under Section 151 of the Code of Civil Procedure filed by the petitioner for modification of the order of maintenance pendente lite arising out of Misc. Case No.15 of 2010 was rejected with cost of Rs.20,000/‐.
The opposite party/wife filed an application under Section 165 of the Evidence Act for production of certain documents. The application under Section 151 of the Code of Civil procedure was dismissed on the ground that although the prayer for modification of the order of maintenance pendente lite was made as the husband/petitioner had resigned from his place of employment in December, 2016, no document showing resignation had been filed before the Court. The Court came to a conclusion that fraud was practiced upon the Court and that in the absence of a letter of resignation the order of maintenance pendente lite could not be modified. Cost of Rs.20,000/‐ was imposed.
Records reveals that along with the application under Section 151 of the Code of Civil Procedure a supplementary affidavit was filed by the husband in which a letter issued by his erstwhile employer had been annexed showing acceptance of resignation and consequent release.
Although the said document was a part of record before the learned Court below, the learned Court below without considering the same had rejected the said application upon imposing cost. The opposite party/wife submits that the learned Court below ought to have directed the husband to produce the passport, income tax return for the period 2017‐ 18, 2018‐19, 2019‐20 and other documents in order to ascertain the truth in the plea of reduction of income and unemployment.
It is further contended that the husband resides in Bangalore, was gainfully employed in Bangalore and he visits Kolkata very often by flight. The contention of the petitioner, that the petitioner is job‐less has been vehemently opposed by the opposite party/wife. It is further stated that there are admitted dues approximately of Rs.2,50,000/‐ and the wife and child are facing financial hardship due to such irregular disbursement of maintenance amount, which was directed by the learned Court below. She prays that the revisional application should be rejected.
The opposite party/wife has also filed an application bearing C.A.N.12576 of 2019, praying for a direction upon the husband to pay arrear dues. C.A.N.12576 of 2019 is treated as on day's list with the consent of the parties.
Having considered the submissions made by the respective parties and having gone through the records, in my view, the application under Section 151 of the Code of Civil Procedure filed by the husband should have been decided on evidence, both documentary and oral.
The order impugned dated July 24, 2019 is set aside.
The petitioner will file a fresh application for modification of the order of maintenance pendente lite passed in Misc. Case No.15 of 2010 in view of the changed circumstances as claimed by him owing to his resignation.
Such application should be filed within two weeks from date.
The opposite party/wife will be at liberty to file a written objection within two weeks thereafter.
The application should be heard by the learned Court below afresh without being influenced by the order impugned before this Court on the basis of the documents and oral evidence to be adduced or submitted by the respective parties.
The petitioner will be at liberty to proceed before the learned Court below in accordance with law for implementation and/or execution of the order of maintenance pendente lite for liquidation of the arrear dues.
If such application is filed the learned Court below will dispose of the same expeditiously as the arrears are admitted.
The application to be filed by the husband should be disposed of within a period of two months from the date of filing.
Under such circumstances, this revisional application is disposed of. The C.A.N.12576 of 2019 is also disposed of accordingly.
There will be however no order as to costs.
Urgent photostat certified copy of this order be given to the parties on priority basis, if the same is applied for.