First appeal against orders rejecting adjournment and refusing to take a written statement on record. Court held time limit for filing statement had not commenced due to lack of notice. Appellant's statement accepted; suit to be disposed of within one year.
Orders set aside; written statement to be taken on record; suit to be disposed of within one year.
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Court No. - 1
Case :- FIRST APPEAL No. - 72 of 2022
Appellant :- Smt. Babita Sharma Respondent :- Ankit Kumar Counsel for Appellant :- Deo Raj Singh Counsel for Respondent :- Suresh Chandra Srivastava,Savita Tiwari
Hon'ble Ramesh Sinha,J. Hon'ble Subhash Vidyarthi,J.
(1) Heard Shri Deo Raj Singh, learned counsel for the appellant and Shri Suresh Chandra Srivastava, learned counsel for the respondent.
(2) The instant appeal has been filed under Section 19(1) of the Family Courts Act, 1984 challenging the order dated 01.08.2022, passed by the Third Additional Principal Judge, Family Court, Lakhimpur Kheri, rejecting the application for adjournment filed by the appellant and closing her opportunity to file a written statement. Thereafter, the matter was fixed for evidence of the plaintiff on 06.08.2022 on which date the defendant/ appellant filed her written statement, along with an application for taking the same on record, which was rejected by the Family Court and the aforesaid order dated 06.08.2022 has also been challenged by the appellant.
(4) The appellant filed Transfer Application No.270 of 2021 in
this Court whereupon Suit No.1646 of 2020 was transferred to Lakhimpur Kheri and a direction was issued to the Transferee Court " to make endeavour to conclude the proceedings of Case expeditiously, preferably, within a period of six months from the date a written statement is filed by the applicant . "
(5) On 01.08.2022, the appellant had sought an adjournment as her counsel did not attend the Court as the Advocates were on strike, which request was opposed on the ground that this Court had directed the Suit to be disposed off within six months.
(6) Although in the order dated 24.09.2021, passed by this Court in Transfer Application No.270 of 2021, it was provided that " the applicant shall file a written statement in the divorce petition positively within a period of two weeks from the date, the file is received by the Transferee Court, consequent to this order .", but there is nothing on record that any notice of the file having been received by the Transferee Court was issued to the appellant.
(7) Therefore, we are of the view that the time granted by this Court in the order dated 24.09.2021 would have started upon receipt of the information of the record having been received by the appellant.
(8) The learned counsel for the appellant has submitted that the appellant kept on enquiring about receipt of the file, but she was not given any information by the Officials of the Family Court. On 01.08.2022, when the appellant came to know that her file has been received at the Family Court at Lakhimpur Kheri, she filed an application for adjournment on the ground of personal difficulty of her Counsel, which was rejected by the Family Court although the Advocates were on a strike on that date and normally in such circumstances, the cases are adjourned by the
Family Courts.
(9) Further, the appellant filed a written statement on the very next date fixed on 06.08.2022, but the Family Court refused to take the written statement on record on the ground that the Court was directed to decided the Suit within six months. However, the Family Court ignored the fact that the direction issued by this Court that the appellant would file a written statement within two weeks from the date the file is received by the Transferee Court and the Transferee Court shall make endeavour to decide the Suit expeditiously, preferably, within a period of six months from the date a written statement is filed by the appellant.
(10) Even otherwise, the Courts should refrain foreclosing the defense of a party, unless the circumstances of the case clearly establish that the defendant is avoiding filing of the written statement in order to create unnecessary hurdles in expeditious disposal of the case. As there is nothing on record that the appellant had been given notice of receipt of the record of the case by the Transferee Court, the period of two weeks granted by this Court did not start running and, therefore, the Family Court was not justified in refusing to take appellant's statements on record.
(11) In view of the aforesaid discussions, the orders dated 01.08.2022 and 06.08.2022 passed by learned Third Additional Principal Judge, Family Court, Lakhimpur Kheri in Suit No.116 of 2022 titled Ankit Kumar vs. Smt. Babita Sharma , are hereby set aside.
(12) The learned Family Court is directed to take written statement of the appellant, which has already been filed on 28.06.2022, on record and to proceed to decide the Suit, in
accordance with law, after giving the parties full opportunity to present their case, expeditiously within a period of one year from the date a certified copy of this order is produced before the Family Court.
(13) The First Appeal is, accordingly, allowed .
(14 There will be no order as to costs.
(Subhash Vidyarthi, J.) (Ramesh Sinha, J.) Order Date :- 28.1.2023 Arnima
Digitally signed by :- ARNIMA SINGH High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether the Family Court was justified in rejecting the adjournment application and refusing to take the written statement on record given the lack of notice regarding the receipt of the transferred f
Whether the time limit granted by the superior court for filing the written statement commenced without formal notice of the file's receipt by the transferee court.
3 provisions across 3 enactments
Smt. Babita Sharma
Ankit Kumar
Ramesh Sinha
Subhash Vidyarthi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
