PRAFULLA KUMAR DAS AND ANR. Vs. SABITA BEHERA

JUDGEMENT

(1.) IN this application filed by parents I of one Kishore Kumar Das (hereinafter referred to as 'deceased Kishore') legality of the order dated 27 -8.1997 passed by the learned Judge, Family Court. Cuttack in Misc. Case No. 3 of 1992 filed by the opposite party the widow of deceased Kishore Kumar Das is under challenge. Direction given by the learned Judge. Family Court was to the effect that the Petitioners were to contest Misc. Case No. 3 of 1992 which arose out of Civil Proceeding No. 184 of 1991. This case has its pivot on the decision of this Court in Sabita Behera etc. v. Prafulla Kumar Das and Ors. etc.: 1997(1) O. L Rule 116.

(2.) SABITA Behera alias Das, opposite party herein was married to deceased Kishore on 30 -1 -1990 according to Hindu rites and customs . An application seeking divorce was filed by deceased Kishore, under Section 14 of the Hindu Marriage Act. 1956 (in short, the 'Act'). Said petition was registered as Civil Proceeding, No. 184 of 1991 before the learned Judge, Family Court, Cut tack. Prayer was accepted 'on 15 -11 -1991 by allowing the petition for divorce and directing dissolution of marital tie between his and Sabita. An application was filed on 7 -1 -1992 by Sabita purported to be one under Order 9. Rule 13 of the Code of Civil Procedure, 1908 (in short, the 'C.P. C.') seeking to set aside the ex parte judgment which was 'numbered as Misc. Case No. 3 of 1992. The said application was dismissed -on 24 -6 -1993 as the parties were absent on repeated calls. On 2 -1 -1994 Kishore breathed his last. On 19 -1 -1994 Misc. Case No. 9 of 1994 was filed by Sabita with prayer to implead the heirs of deceased Kishore, and for restoration of Misc. Case No. 3 of 1992, which was dismissed on 24 -6 -1993. Learned Judge. Family Court held that no case for restoration was made out, but directed parents -in -law, i. e., present Petitioners to be impleaded and to pay Sabita lump sum of Rs. 40,000/ - in two instalments. It was directed that the copies of the judgment shall be sent to the Director General of Police, Orissa, Cuttack, D.I. G. of Police, P.M. T., Orissa, Buxi Bazar, Cuttack ana to the Accountant General, Orissa, Bhubaneswar for speedy disbursement of monetary and service benefits payable to - the parents of deceased Kishore by the State Government. The present Petitioners assailed the direction for their application and the further direction for payment of lump sum amount of Rs. 40,000/ -. Sabita assailed the rejection of prayer made under. Order 9, Rule 13, C.P. C. in Civil Appeal Nos. 23 and 19 of 1994 respectively. A Division Bench of this Court of which I was a member, held that the applications (a) for substitution, ami (b) under Order 9, Rule 13, Code of Civil Procedure were maintainable, and the leaned Judge, Family Court was justified in accepting the prayers contained in the concerned placations. While accepting the prayer for substitution, the learned Judge, Family Court had directed payment of money by the in -laws. They were not heard on the question of liability to pay. Therefore, the direction in that regard was set aside. With the aforesaid, observations, C.A. No. 23 of 1994 was allowed to the extent indicated. So far as C.A. No. ]9 of 1994 is concerned, it was observed that there was sufficient cause shown for non appearance. It was further observed that too rigidistic approach had been adopted, which was not appropriate in view of the nature of dispute involved. The order, rejecting the prayer for restoration was held to be indefensible. Direction was given to the learned Judge, Family Court to hear the entire matter.