SOMA DEY Vs. SWAPAN KUMAR DEY

JUDGEMENT

(1.) Heard learned Advocates appearing for the parties.

(2.) In this application under Article 227 of the Constitution of India the petitioner has assailed the order dated 11.8.2005 passed in Matrimonial Suit No. 215 of 1995 by the learned Additional District Judge, 5th Court at Howrah (Sadar) District-Howrah, whereby and whereunder the application of the husband/opposite party praying for withdrawal of the suit with liberty to file a fresh suit was allowed holding inter alia, that all alimony as directed to be paid pending litigation has already been paid to the wife. Learned Advocate for the petitioner has submitted that alimony was not paid and only by an interim order some amounts were paid but there was no final determination of the application filed under Section 24 of the Hindu Marriage Act, 1955. It has been further contended that the application under Section, 24 of the Hindu Marriage Act, 1955 was finally adjudicated upon by the trial Court allowing maintenance at the rate of Rs. 4,000/- per month for the wife and the children and Rs. 2,000/- as litigation cost. This order was assailed to the application under Section 115 of the Code of Civil Procedure before the High Court, being the order dated 26.8.2003 passed by the learned Additional District Judge, 4th Court, Howrah in Misc. Case No. 3 of 2001 which was registered as CO. 2068 of 2003. As an ad interim measure, Girish Chandra Gupta, J. reduced the monthly maintenance allowance to some extent as appears in the order passed by this Court. Thereafter, the matter was finally adjudicated upon by Amjtava Lala, J, (as His Lordship then was) on quashing and setting aside the order under challenge in the said application under Section 115 of the Code of Civil Procedure by directing to consider the matter afresh on hearing the parties and on consideration of the submissions as made by the learned. Advocates with a rider that till the decision was reached payments as directed to be made by the earlier order dated 29.9.2003 by Girish Chandra Gupta, J, would continue. The petitioner in this application is aggrieved by the impugned order for the reason that maintenance issue during pendency of the litigation and the cost of litigation since as yet has not reached its finality by a judicial order, there was no scope before the learned Court below to permit the husband to withdraw the suit with liberty to file a fresh suit.

(3.) Learned Advocate for the opposite party has contested this matter by contending, inter alia, that already all payments regarding alimony pendente lite and the litigation cost has been paid which is reflected from the order impugned in this application.