Priyadarshini Purohit @ Priyadarshani Purohit Vs Sankatmochan Nayak

dated 2^nd January, 2024 of the Family Court decreeing restitution at instance of respondent-husband. Though the judgment was made ex-parte, the appeal was filed in time.

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2. On query made Mr. Sahoo submits, soon after service of the summons his client filed for transfer of the civil proceeding to Family Court, Rourkela, where she was and is still residing. Direction for notice was issued on 21^st December, 2023. However, soon thereafter impugned judgment dated 2^nd January, 2024 was passed, rendering the transfer application infructuous.

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3. Ms. Samantray, learned advocate appears on behalf of respondent-husband and submits, her client took every step necessary for noticing appellant in his restitution case. Appellant left his company without reasonable cause. This was found by the Family Court in impugned judgment, to decree restitution. She opposes the appeal.

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4. Perused order sheet. It appears the petition for restitution was taken cognizance of on 19^th September, 2022.

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MATA No.29 of 2024 Page 2 of 6

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More than one attempt was made to serve notice thereof to appellant by registered post and process server. Endorsement made by the postal authority was that she had left the address. Ultimately, the summons was served by registered post and the Family Court took note of the track consignment by order dated 12^th December, 2023. Report was, ‘Item delivered (addressee)’, on 23^rd November, 2023. Hence, on prayer of respondent, by said order the proceeding was set ex-parte against appellant.

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5. Further perusal and scrutiny of order sheet does not show that the Family Court was made aware that a transfer petition had been filed by appellant. Going by submission made on behalf of appellant that direction for notice in the transfer petition was issued on 21^st December, 2023 and impugned judgment made on 2^nd January, 2024, it is clear, filing of the transfer petition could not have been to knowledge of the Family Court. Last date of hearing of the proceeding in the Family Court was 20^th December, 2023, day prior to direction for issuance of notice in the transfer petition. Impugned judgment followed on 2^nd January, 2024.

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MATA No.29 of 2024 Page 3 of 6

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6. So far as the proceeding in the Family Court is concerned, we are satisfied that it was done in accordance with law. There is no dispute that summons in the proceeding was served on appellant. She, instead of taking steps to appear in the proceeding, filed for transfer of it and thereafter appeal. We say this because the appeal was presented on time. Stamp reporter says total period occupied was 28 days. Hence, there is lawful presumption that appellant was on notice of the proceeding pursuant to the receipt of summons. She chose not to make any communication to the Family Court pursuant to service of the summons, at least to inform the Court that she had moved for transfer.

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7. Moving on to merits of the case Mr. Sahoo submits, respondent meted out cruelty to his client, which is why she filed for divorce. Respondent is participating in the divorce proceeding. In the circumstances, impugned ex-parte judgment, if left outstanding, will cause his client prejudice in the divorce case. Ms. Samantray reiterates, there is no error in impugned judgment nor any could be pointed out on behalf of appellant.

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MATA No.29 of 2024 Page 4 of 6

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8. Perceived prejudice is the only ground of appeal. Appellant’s case is that she is prosecuting the divorce proceeding filed by her and would want to do so without being impaired by impugned judgment, made ex-parte against her. Appellant preferred appeal to this Court instead of filing for recall of the ex-parte judgment, keeping in mind that to appellant, Sonepur is nearer than the High Court.

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9. We have not been shown any error on merit in impugned judgment. Appellant did not file for recall of impugned judgment in the Family Court at Sonepur obviously because she having first filed for transfer, then filed for divorce and preferred appeal. It is also true that appellant was not heard on her contention in the restitution case but she can, at best, assert circumstances because there was no fault or irregularity in the procedure followed by the Family Court, as already observed by us. In the premises, directing remand for adjudication on respondent’s contention for restitution, when, inter alia, appellant has already filed for divorce, will add to multiplicity of judicial proceedings. Rule 33 in order XLI, Code

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MATA No.29 of 2024 Page 5 of 6

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of Civil Procedure, 1908 provides for power of appeal Court to, inter alia, make any order as the case in appeal may require. In exercise of the power we set aside impugned judgment. On doing so we make it clear that respondent may refer to the judgment and other materials in record of the restitution proceeding, to further his case in the civil case for dissolution

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of the marriage filed by appellant.

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10. The appeal is accordingly disposed of.

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(Arindam Sinha) Judge

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(M.S. Sahoo) Judge

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Jyoti

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Signature Not Verified