Dismissed

Ramesh Ch.Dash v. Sanghamitra Tripathy@Dash

Orissa HC21 Apr 2023RPFAM/237/2017

Case brief

AI extract

What is this about?

Hearing an appeal against a Family Court order enhancing maintenance, the court rejected the appellant's request for a remand to adduce evidence because no prima facie material suggested new evidence would alter the case. The appeal was dismissed as the impugned judgment contained no infirmity. (approx. 40 words)

What did the court decide?

The RPFAM petition is dismissed; the impugned judgment enhancing maintenance remains in force.

Ramesh Ch.Dash Vs Sanghamitra Tripathy@Dash — Maintenance and Alimony | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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RPFAM No. 237 OF 2017

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Ramesh Chandra Dash …. Petitioner Miss Aurolina Pal, Advocate -versus-

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…. Sanghamitra Tripathy @ Dash and Opp. Parties

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another

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None

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CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

21.04.2023

This matter is taken up through hybrid mode.

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Judgment dated 11^th August, 2017 passed by learned Judge, Family Court, Berhampur, Ganjam in Criminal Proceeding No.109 of 2016 is under challenge in this RPFAM, whereby allowing an application under Section 127 Cr.P.C., the Petitioner has been directed to pay maintenance at the enhanced rate of Rs.5,000/- per month to Opposite Party No.1 and Rs.3,000/- per month to Opposite Party No.2 from the date of filing of the application, i.e., from 20^th May, 2016.

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Miss Pal, learned counsel for the Petitioner submits that on 19^th April, 2017, evidence of the Opposite Parties, who were Petitioners in the proceeding under Section 127 Cr.P.C., was closed. But, thereafter, due to negligence of learned counsel, the Petitioner could not lead evidence in support of his case. However, on 22^nd June, 2017, learned counsel for the Petitioner filed evidence-in-chief supported by affidavit along with a petition praying inter alia to adduce evidence. But, no one was available to move the petition. Copy of the evidence in affidavit

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was also not served on the Opposite Parties. Hence, dismissing the petition filed by the Petitioner to adduce evidence, the matter was posted to 17^th July, 2017 for argument and the impugned judgment was passed.

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It is submitted by learned counsel for the Petitioner that vide order dated 31^st March, 2015 passed in a proceeding under Section 125 Cr.P.C. in Cr.P. No.91 of 2014, learned Judge, Family Court, Berhampur directed the Petitioner to pay maintenance of Rs.3,000/- per month to Opposite Party No.1 and Rs.2,000/- per month to opposite Party No.2. Hardly one year after, application under Section 127 Cr.P.C. was filed for enhancement of the maintenance amount stating that the cost of living and the salary of the Petitioner had increased. Learned Judge, Family Court without considering the materials on record, more particularly, the petition under Section 125 Cr.P.C. was disposed of hardly one year before, entertained the application under Section 127 Cr.P.C. and passed the impugned judgment. It is settled position of law that for the fault of the advocate, a party should not suffer. Had the Petitioner been given an opportunity to adduce evidence and produce material in support of his case, the impugned judgment would have been otherwise. Hence, Miss Pal, learned counsel for the Petitioner prays for setting aside the impugned judgment and to remit the matter back to learned Judge, Family Court for fresh consideration of the petition under Section 127 Cr.P.C. giving opportunity to the Petitioner to adduce evidence and participate in the hearing of the case.

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Although the Opposite Party No.1 is represented by learned counsel, but none appears on her behalf at the time of hearing.

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Considering the submission made by Miss Pal, learned counsel for the Petitioner and on perusal of the impugned judgment, it appears that the salary slip of the Petitioner has been produced by Opposite Party No.1 and was exhibited as Ext.1. It disclosed that salary of the Petitioner had increased to Rs.64,733/-. After deduction, he was drawing a salary of Rs.38,104/- per month. On query of the Court, learned counsel for the Petitioner could not produce any material to show that the Petitioner could have improved upon his case, had he given an opportunity to lead evidence in the matter. Providing opportunity to the Petitioner of hearing is not an empty formality. Since no prima facie material is produced before this Court to show that the Petitioner could have improved upon his case, provided he is given an opportunity, this Court feels that no fruitful purpose will be served by remitting the matter to learned Judge, Family Court for fresh adjudication of the petition under Section 127 Cr.P.C.

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Considering the materials on record, learned Judge, Family Court directed the Petitioner to pay the maintenance at the enhanced rate, as stated above. Considering rise in the cost of living, hike in the salary of the Petitioner and in absence of any material to the contrary, this Court feels that learned Judge, Family Court has committed no error in enhancing the maintenance amount as stated above. Accordingly, I find no infirmity in the impugned judgment.

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With the aforesaid observation, the RPFAM stands dismissed.

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Urgent certified copy of this order be granted on proper application.

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(K.R. Mohapatra) Judge

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Ramesh Ch.Dash v. Sanghamitra Tripathy@Dash

Case brief

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Ramesh Ch.Dash v. Sanghamitra Tripathy@Dash

Case brief

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