1. The applicant has taken out present application seeking below mentioned relief/s:-
"16(A) This Hon'ble Court be pleased to review and recall the order (of Hon'ble Justice K.M.Thaker passed in C.A. No.5486 of 2009 on 16.09.2010) at Annexure-D and correct error in the record and proceedings of the case expunging the observations in para (2) and (5) commenting on the petitioner's advocates' absence on 14.9.2010 and (B) In pursuance of the prayer (A) above, rectify the resultant order modifying the interim relief in para (5) of the impugned order at Annexure-D (B1) This Hon'ble Court be pleased to restore the order of Hon'ble Justice C.K. Buch (passed on 11.05.2009 in C.A. No.5486 of 2009) modified by this Court without hearing the petitioner.
(C) ......."
2. The memo of the petition and the affidavit thereunder bears the date 23.9.2010 and the office appears to have made noting/remark on the presentation form on 24.9.2010 to place the application along with the main matter. It appears that subsequently, the application was listed for hearing on 27.9.2010 when following order was passed:-
"To be heard with Civil Application No.5486 of 2009 with Special Civil Application No.8137 of 2008 and Special Civil Application No.10866 of 2008."
3. It further appears that after said order dated 27.9.2010 was passed, the application was listed for hearing on 7.10.2010 when request for adjournment on behalf of the applicant's advocate was made and consequently the hearing of the application was adjourned to 12.10.2010.
4. On 12.10.2010 a detailed order came to be passed and the hearing of the application came to be adjourned to 24.10.2010. It was also directed that the interim arrangement which was granted earlier by virtue of order dated 11.5.2009 would continue to remain in operation till then.
5. Subsequently after hearing the parties, on 24.11.2010 below mentioned order came to be passed:
"Since the roster has changed, the SCA Nos. 8137 of 2008, 10866 of 2008, Civil Application No. 5486 of 2009 and any other Civil Application (except the Misc. Civil Application No.2569 of 2010 for review) need to be placed in regular course before the appropriate Court.
The order dated 27.9.2010 was passed in respect of Misc. Civil Application No.2569 of 2010 for review and not in the writ petitions or Civil Application.
Now since the roster is changed and this Court does not have the roster of the subject matter of the said writ petitions, the writ petitions and cognate civil application, except the Misc. Civil Application No.2569 of 2010 for review, need to be placed before appropriate Court as per the roster, after the order by the Hon'ble the Chief Justice.
Today Misc. Civil Application No.2569 of 2010 for review is listed before this Court.
The writ petitions are placed along with the Misc. Civil Application No.2569 of 2010 for review, probably in view of the order dated 27.9.2010 or because of the special assignment to this Court (only for the second session).
So far as the Misc. Civil Application No.2569 of 2010 for review is concerned so as to enable the opponent (party-in-person) in the Misc. Civil Application and Mr. Rakesh Amarsinh Damir, respondent no.1 in Special Civil Application No.10866 of 2008 to file affidavit, S. O. to 3/12/2010 on 4:45 p.m. The office may segregate the writ petitions and other cognate applications (other than Misc. Civil Application No.2569 of 2010 for review) from present Misc. Civil Application No.2569 of 2010 for review and to that extent the order dated 27.9.2010 would stand modified.
Thereafter, the office, after placing the matters (including Misc. Civil Application No.2569 of 2010 for review) for appropriate orders by the Hon'ble the Chief Justice, place the Misc. Civil Application No.2569 of 2010 for review and the writ petitions and other cognate applications before the appropriate Court as per the order by the Hon'ble the Chief Justice.
So that the interim arrangement may not lapse due to technicality in view of the fact that the petitions and cognate Civil Application are placed along with the Misc. Civil Application for review today before this Court since there is special assignment (for 2nd session) and under the order of the Hon'ble the Chief Justice to this Court the earlier order of interim arrangement passed under order dated 11.5.2009 (coram: C.K. Buch, as his lordship then was) which is continued until today, is directed to be continued to operate until next date of hearing on which the writ petitions and cognate Civil Applications are placed before the appropriate court taking up the writ petitions, after the order of the Hon'ble the Chief Justice.
The aforesaid order is made in view of the fact that the matters are placed before this Court under the special assignment order (for second session) by the Hon'ble the Chief Justice."
6. In view of the said order dated 24.11.2010, the hearing of the application was adjourned to 3.12.2010 when the below mentioned order was passed and the further hearing was adjourned to 23.12.2010.
"Ms.
Bharti Rakesh Damir - respondent has filed affidavit. Mr. Shethna, learned advocate for the applicant has submitted that the applicant wants time to file rejoinder.
So as to enable the applicant to file rejoinder and at the request of Mr. Shethna, learned advocate for the applicant, S.O. to 23.12.2010 at 4:15 p.m."
7. As noted in the said order, the respondent - wife had filed reply affidavit on 3.12.2010. In paras 3 and 4 of the said affidavit, the respondent - wife has averred as follows:-
"3. The respondent submits that on 07/09/2010 when Adv. Hormaz Shethna was on leave, petitioner was not present in court room, only Adv. Roopal Patel was present and she requested for adjournment and so next date 14/09/2020 was provided. The submission of petitioner is incorrect that on 14/09/2010 the Hon'ble Court has discharged the second board. I myself was present and requested for priority on 14/09/2010. The petitioner and his advocate were absent, next date 16/09/2010 was provided on request with priority. On 16/09/2010 at around 15:30 hrs when the matter was called petitioner and his advocate were not present in the court room. Even nobody else was present to make any request on their behalf in court room and hence the order dated 16/09/2010 was passed by the Hon'ble Court.
4. The respondent submits that similarly on many occasions the petitioner and his advocates were not present in the court room this can also be view from the order dated 29/04/2009 by Hon'ble Justice C.K.Buch. The respondent on 29/04/2009 has made her submission before Hon'ble Justice C.K.Buch at around 15:00 hrs and petitioner and his advocates were not present in the court room. On 04/02/2009 at 14:00 hrs when respondent filed the written application for withdrawing her statement that she will not take any coercive step for recovery, while submitting the written application Hon'ble Justice C.K.Buch has told me to deliver the copy of the written application to the petitioner or his advocate but as petitioner and his advocate were not present in the court room respondent has to go and search for the petitioner's advocate Mr. Hormaz Shethana at his room No.204 but he has not even available there and so I went to library and found the room No. of Advocate Roopal Patel from the advocate's directory and thereafter delivered the copy to her at her room No.205. Thereafter, I return back to court room and after some time Adv. Hormaz Shethana came to the court room where I delivered the copy of application to Adv. Hormaz Shethna. This goes to show that the statement of the petitioner is false."
8. On the next date, i.e. 23.12.2010, Ms. Patel, learned advocate appearing for the husband in SCA No.10866 of 2008, tendered an affidavit, however so as to enable her to make additional affidavit, the hearing of the application was adjourned to 29.12.2010. In the affidavit dated 23.12.2010 made by Ms. Patel, learned advocate, it is stated in paras 2, 4, 5 and 7 that:-
"2. I am the advocate for the respondent - husband in SCA 10866 of 2008 who is the petitioner in SCA 8137 of 2008. Both matters along with C.A. 5486 of 2009 were listed together on 14-09-2010 before the court of Justice K.M.Thaker in Second Board at Sr.No.37. I state and submit that the matter was never called out in its due course and therefore cannot be said that it was taken up for hearing.
4. In her affidavit-in-reply in para 3, the respondent in this review petition has averred that she had sought for priority in the matter and that the petitioner and his advocates were not present and that next date 16-09-2010 was provided on request with priority.
5. This confession of the respondent party-in-person itself indicates that matter was never taken up for hearing and therefore priority was sought for. If the respondent was to seek priority from the court, it was the duty of the respondent herein to inform the other side before making such a request to the court. What ulterior motive the respondent had in mentioning for priority before the court without informing the other side ?
7. It appears that due to inadvertence or oversight the Ld.Court (K.M.Thaker J) has made the observations in Para 2 and 5 of its order dated 16-09-2010 in C.A. 5486 of 2009 IN SCA 8137 of 2008 that matter was taken up for hearing on 14-09-2010 and advocates Ms. Patel and Mr. Shethna were not present. Since the respondent herein also in her affidavit-in-reply contradicts the same by averring that only ex-parte priority was sought for, the observations made kindly be expunged from record."
In the further affidavit dated 29.12.2010, Ms. Patel, learned advocate, stated thus:-
"This Honourable Court (coram: Honourable Mr. Justice K.M.Thaker) on 23.12.2010, sought clarification as to my source of making the statement made in para 2 of the affidavit dated 23.12.2010. Being an advocate practicing in this Honourable Court, it is my duty to follow in each and every matter, as to what transpires even in my absence before the Court. Since it is a matter of three and half months' back, it is difficult to pinpoint exact source, but I can say that on making verification from the court clerk and other advocate colleagues, I learnt the same. I state that, on 14/9/10, I had not entered Hon'ble court room but I am reiterating about the afore stated. I state that, I was not present when priority was sought for by party in person and that is also reiterated by the party in person in her affidavit dated 3.10.2010. Party in person has admitted that, she had sought ex-parte priority. I ask myself as to what ulterior motive party in person had, in seeking priority without informing advocates for other side."
As per the order passed on 29.12.2010, the hearing of the application came to be adjourned to 28.1.2011 since, on the said date (i.e. 29.12.2010) the applicant- husband also had filed a rejoinder affidavit (in response to the respondent - wife's affidavit dated 3.12.2010) wherein the applicant- husband responded to para 3 and 4 of respondent - wife's affidavit and stated in paras, 8 and 10 as follows:-
8. In Para-3 of her reply the respondent states that, the submission of the petitioner is incorrect that on 14/9/2010 the Hon'ble Court has discharged the second board. What does the respondent understand by the term "discharge"? The respondent being a lay person is appearing as party in person. Is it only to falsify the petitioner that the respondent has made the above averments?
10. In Para - 4 of her reply the respondent rather endorses her unbecoming conduct of obtaining ex-parte order from the court of Hon'ble Justice C.K.Buch, again without informing the other side. It was only proper that such ex-parte order obtained by the respondent by suppressing material facts before the above court should have been set aside. The respondent should understand one thing that one who seeks justice should come with clean hands. She succeeded in obtaining ex-parte order from the above court through deception and misrepresentation. She should later not cry foul for the order passed on 11/5/09 by Hon'ble Justice C.K.Buch setting aside the above ex-parte order.
9. On 29.12.2010 the submission by applicant-husband's advocate was recorded, which reads thus:-
"Mr.Shethna, learned advocate for the applicant has submitted that the request for certain details/documents has been made. Therefore, the querry has been made by the Court, whether the applicant or the advocate would like to wait for the material requested for.
Mr.Shethna, learned advocate has submitted that if the remarks which, in his view, are against the advocate/s, are expunged then the applicant does not want to wait for the papers for which request has been made.
Having made the aforesaid submission, Mr.Shethna, learned advocate has submitted that for the present, the hearing of the application may be differed.
Having regard to the aforesaid aspect, the convenient date to the learned advocate and the party-in-person has been inquired about. The respondent(wife) who appears party-in-person has requested that the hearing of the application may be scheduled for 27th January, 2011.
S.O.
to 27th January, 2011."
10. On 27.1.2011 the applicant's advocate informed that usually the period taken for responding to the application, filed by the applicant, is 30 days and that therefore present application was adjourned to 18.2.2011. On 18.2.2011 certain submissions and stipulation came to be made by the learned advocate for the petitioner, which was recorded in paras 2 and 4 of the order. The relevant part of the order read thus:-
"2.
.........It is also clarified by the learned advocate for the applicant that the applicant and the applicant's advocate do not intend to press in service the said separate application for detail/documents and do not want to rely on the details/documents for which request was made in the said earlier application and instead would prefer to rely upon the record of present application and the documents/affidavit which are presently obtaining on the record of this/main application and that therefore the said earlier application and the said proceedings may be treated as closed or waived and instead the application may be decided on its own merits on the basis of the material available on record of present application.
4. Hence, in view of the submission and the stipulation made by the learned advocate for the applicant the said earlier application seeking certain details/documents is treated as having been waived and i.e. not persued.
11. Since it was past Court hours by the time the aforesaid order was over, the hearing of the application was adjourned to 23.2.2011 when the learned advocate for the applicant - husband started his submissions and since the submissions did not conclude, the further hearing of the application was adjourned to 25.2.2011. On 25.2.2011, learned advocate for the applicant husband concluded his submission, when following order was passed:-
"1.
Mr. Hormaz B. Shethna, learned advocate for the applicant has concluded his submissions today.
2. The respondent-wife (who appears as party-in-person) has started her submissions. During her submission she has stated that when, on earlier occasion, she had requested for priority in hearing of the application she had not informed the advocate of the applicant either about her making request for priority or (also) about the fact that the Court had accepted the request. She has also stated that both the aspects were not informed to the learned advocate of the applicant, as admitted by her during her submission. However, with a view to ensuring that the statements made by her, formally comes on record byway of affidavit, the respondent wife is granted time until 01.03.2011 to make affidavit containing the aforesaid submission i.e. both the aforesaid aspects were not informed to the advocate of the applicant.
For the aforesaid purpose hearing of the application is adjourned to 01.03.2011 at 4.30 p.m."
The relevant part of the order passed on 1.3.2011 reads thus:-
".......Today, the respondent-wife (who appears as party-in-person) sought to tender an affidavit which was beyond what was observed in the order dated 25.02.2011 and that therefore, the said affidavit is not taken on record today. Since the respondent-wife (who appears as party-in-person) has stated that she would file appropriate affidavit as per the order dated 25.02.2011, the matter is adjourned to 04.03.2011 at 4:45 p.m to enable the respondent-wife to file the affidavit. Today, the respondent-wife has concluded her submission and Mr.Shethna, learned advocate had made his rejoinder a well."
12. On 4.3.2011, the proceeding was adjourned to 7.3.2011. On the said date, the respondent wife tendered an affidavit. In the said affidavit, the respondent wife has, with reference to the proceedings on the tow dates averred that she had made the request for priority at around 1.45 p.m. on 14th September, 2010 and at 11.00 a.m. on 16th September, 2010 and her reply to the query as to whether she had informed the advocate of the petitioner when she had requested for priority is in negative. She, however, has added averments stating the reason for not informing (i.e. why she cold not inform) the applicant or applicant's advocate about the request made by her seeking priority of hearing of the application. The relevant para of the affidavit dated 4.3.2011 reads thus:-"Reason : Both the advocates of the petitioner (Adv. Hornmaz Shethna and Adv. Roopal Patel) and the petitioner himself were not present in the court room at the time I requested for priority. Both the advocates and the petitioner himself has not entered into the court room between 01.45 pm to 5.00 pm on 14-09-2010 and between 11.00 am to 3.30 pm when the matter was called in its regular form (matter as listed in the First Board Sr. No.33) on 16th September 2010. they were absent or somewhere in the court compound. As the court compound is very big so it is not possible to search them in the whole of the court compound to inform about the priority. Even the assistant of Advocate Shethna and Roopal Patel named Dharmesh and Tejal Shah respectively has also not entered the court room on both the dates during the same period, so under such circumstances how to inform the advocates of the petitioner or the petitioner. Now as per the say of the petitioner that he is remaining present personally is false because if he would be present in the court room then I would have informed him and moreover when the matter was called he would have requested the Hon'ble Court that he will call his advocates for hearing. I hereby submit that if any of the advocates of the petitioner would have entered the court room then I would have positively informed the other side but it is not my duty to search them in the whole court compound. But on the contrary it is their duty to remain present in the court room when the matter is on the board. They should have shed their responsibility on the other's shoulder and simultaneously claim almost cent per cent presence."
13. In view of the said affidavit, the Court considered it appropriate to permit the husband to respond the said affidavit. The hearing of the application was, therefore, adjourned to 11.3.2011 (at 4.45 p.m.) as per the order dated 7.3.2011, which reads thus:-
"As mentioned in the earlier orders dated 25.02.2011 and 01.03.2011.......Today, the respondent-wife has made an affidavit and seeks to place the same on record in furtherance of the order dated 25.02.2011. However, it is prima facie noticed that the respondent-wife has made various other averments, which applicant's advocate has disputed and submitted that they are in nature of allegations and beyond the scope and purpose of the affidavit which was required to be made. Learned counsel for the applicant has, therefore, sought time to make reply affidavit dealing with the portion titled "reasons" in the affidavit made by the respondent-wife. He has submitted that the applicant would restrict his affidavit to the said portion of affidavit to avoid further adjournment in the proceedings, particularly because, both sides have concluded the oral submissions. It is made clear to both sides........
With the aforesaid clarification, the hearing is adjourned to 11.03.2011 at 4.45 p.m."
14. On 11.3.2011, the husband tendered his affidavit dated 11.3.2011 wherein paras 2 to 4 read thus:-
"2. At the outset, the petitioner disputes the 'reasons' provided by the respondent party-in-person in her affidavit dated 04-03-2011 as one provided so as to convenience the respondent party-in-person, to cover up for her lapse and breach of propriety and procedure in not informing the other side before seeking priority, in order to secure ex-parte orders to her benefit.
3. The say of the respondent in her affidavit dated 04-03-2011 is false that advocates and the petitioner had not entered in the court room between 1.45 pm and 5.00 pm on 14-09-2010. In her affidavit dated 04-03-2011, the respondent states that, "I requested for priority at around 1.45 p.m. on 14-9-2010". In Para-3 of their affidavit-in-reply dated 03-12-2010 in the above same matter, the respondent has herself stated that, "I myself was present and requested for priority on 14-09-2010. The petitioner and his advocate were absent, next date 16-09-2010 was provided with request with priority". If once date was granted at 1.45 p.m. on 14-09-2010 on request with priority, what warranted the respondent to sit in court room till 5.00 pm? On what basis the respondent says that both the advocates and petitioner himself has not entered into the courtroom till 5.00 pm? Further the respondent party-in-person has not provided any explanation as why she did not inform the other side before seeking priority i.e. prior to 1.45 pm. On 14-09-2010.
4. Neither before after seeking priority has the respondent party-in-person informed the petitioner or his advocates on 14-09-2010 or 16-09-2010 though they were present in the court room during the day from time to time."
15. Subsequently, on 28.3.2011 the matter was taken up for dictation of the order. Before proceeding further it is necessary to note that in view of the view of the view of the submissions and the application the narration of the events and various orders (including earlier orders) and extraction of averments from affidavits orders etc. has become necessary, hence these aspects are noted in rather more details. After 28.3.2011 for the reasons mentioned in the separate orders the dictation of the order was adjourned to 1.4.2011 and however it came to be deferred from time to time. During the dictation of the order on 5.4.2011, the respondent wife made grievance that in the copy of application supplied to her, the paragraph 18(B1) was not to be found though it was added by way of hand-written portion in the application on the record of the Court. The grievance made by the respondent wife has been recorded in the order dated 5.4.2011. The said order reads thus:-
"1. Today when the further dictation of the order was about to start the respondent wife (who appears as party-in-person) has made grievance that the relief prayed for by the applicant by way of paragraph No.18 (B1) is not mentioned in the copy of the application served on her. She has submitted that she came to know about such relief having been prayed by the applicant, for the first time when reference was made about the said relief in the order which was being dictated on 28.3.2011 and that therefore, she has, today made grievance that her copy does not contain the relief prayed for by the applicant by way of paragraph 18(B1).
2. Mr.
Shethna, learned advocate for the applicant has submitted that the applicant will need to verify the factual position as to how the said prayer does not find place in the copy served on the respondent (who appears as party-in-person).
3. .........
4. So as to enable the applicant to respond to the said objection raised by the respondent wife (who appears as party-in-person) S.O. to 8.4.2011 at 4.45 p.m. (since the parties have jointly submitted that the petitions are listed before appropriate Court on 7.4.2011, the papers of SCA No. 8137 of 2008 and SCA No.10866 of 2008 are returned to the registry with a direction to place the same before this Court on 8.4.2011 for further dictation of order)."
16. So as to enable the applicant / his advocate to give explanation about the hand written para 18(B1) proceeding was adjourned however learned advocate for applicant filed sick-note and the applicant also was not present and any explanation did not come forth. Hence, following order was passed:-
"Today the matter was listed for further dictation of the order. The respondent wife, who appears as party in person is present. It is, however, reported that learned advocate for the petitioner husband has filed sick-note. The petitioner-husband is also not present. The respondent wife is present and has stated that the hearing of the two main petitions is scheduled to take place on 11.4.2011 before the Court taking up the hearing of the said petitions. Therefore the dictation of this order is differed until 13.4.2011 so that..........
S.O.
to 13.4.2011 at 4.15 p.m."
17. After the aforesaid order dated 5.4.2011, the proceeding was adjourned to 13.4.2011 and then to 20.4.2011 when further order was dictated in part and further dictation of the order was adjourned to 21.4.2011. On 21.4.2011 below mentioned order was passed:-
"1. The further dictation of the order was scheduled today. However, though the Court waited for presence of the learned advocate for the applicant-husband until 5.10 p.m., learned advocate for the applicant-husband is not present. The petitioner is also not present. So as to not to dictate order in absence of the learned advocate for the applicant's advocate, more particularly in view of the fact that the applicant is also not present, dictation of the order is required to be differed.
2. The Court proposed to differ the dictation..............she has requested that the dictation of the order may be differed to any date after 3.5.2011.
3. In view of the aforesaid facts and circumstances, the dictation of the order is differed to 4.5.2011 at 4.30 p.m."
18. Accordingly the further dictation of the order was differed to 4.5.2011. However, since on 4.5.2011 Division Bench was constituted, wherein this Court being a member of the Division Bench, the dictation of the order was differed to 5.5.2011. One application being "speaking to minutes" dated 3.5.2011 (which is prepared on the letter-head of, and signed by, the learned advocate for the applicant-husband) is placed by the office along with this MCA No.2569/2010. The crux of the submission by the learned advocate for the applicant-husband and also the applicant-husband is that the Court may not differ the dictation of the order even if the applicant and / or his learned advocate are not present and that the dictation of the order may be continued even in their absence. Since the said "speaking to minutes" does not clarify and /or declare that the applicant-husband is also making similar request the Court inquired about applicant's stand and he too, through his advocate, adopted same stand and line as his advocate and made similar stipulation. This is recorded in his presence. The respondent wife has also not made such and similar request or stipulation or has not put up such and similar remark on the said "speaking to minutes", thus, the Court inquired with the respondent wife as to whether she also has to make similar request. In response, she submitted that she would prefer that the order be dictated in her presence, however she would leave it to the decision and discretion of the Court. The Court has taken note of the said identical declaration and stipulation by the applicant and his learned advocate, however from the beginning, the order has been dictated in the Court and in presence of the applicant and / or his advocate and the respondent-wife thus, the Court would continue to dictate the order in the same manner as has been done until now, however since this Court is, at present, assigned different subject under the roster and even during the earlier roster also different subject was assigned to this Court, the Court has been able to take-up the matter for dictation of the order only around or after 4.30 p.m. or thereafter (i.e. after the matters in regular cause-list are are taken-up) and at times the Court is not able to take up the dictation due to paucity of time consequently the order is required to be dictated over relatively long period of time. In view of the aforesaid stipulation willingly made by applicant and his advocate it would be for them, and likewise it would be for the respondent wife, to take their own decision and if they are not able to remain present then the Court would take note of the above noted declaration and stipulation and continue to proceed with and complete the dictation of the order, of course subject to the availability of time, in the Court, even if the applicant and / or his advocate and / or respondent is / are not present.
19. With the aforesaid clarification, the Court may proceed further, however before proceeding further it would be appropriate to note that the order in the background of petitioner's grievance is the order dated 11.5.2009 in CA No. 5486 of 2009 and it is also relevant to note that prior to the said order the Court (Coram:- Hon'ble Mr. Justice C.K.Buch) had taken note of the declaration dated 3.2.2009 filed by respondent wife to the effect that :-"...I hereby taking my statement back submitted on 2.9.2008 before the Hon'ble High Court and I am hereby requesting and praying to give permission to execute order passed by Family Court so as to avoid further hardship". The said stipulation was opposed by the husband by filing affidavit dated 16.2.2009 wherein the husband asserted that the allegation made in the said statement dated 3.2.2009 were incorrect and suffered from suppression. Taking note of the said aspect, the order dated 29.4.2009 was passed in SCA No.8137/2008 by the Court (Coram:Hon'ble Mr. Justice C.K.Buch) which reads thus:-
"Heard Ms.Bharti Rakesh Damir, party in person.
It is submitted by her that in view of the withdrawal of the statement made by her on 04/02/2009, she is entitled to proceed further with the execution proceedings, but the learned Presiding Officer of the Family Court is not accepting her words, more particularly, when cross petition is pending before the Court.
If no formal stay is granted against the execution of the order of maintenance, the learned lower Court can get the order executed qua the amount of maintenance granted. However, it will be appropriate for the learned lower Court firstly to issue Notice to the other side so the respondent Rakesh Amarsinh Damir is ready to deposit the amount or is agreeable to pay the amount of maintenance, so that the Court may not enter into harsh execution. S.O. to 14/05/2009.
Copy of this order, if asked for, be supplied to Ms.Bharti Rakesh Damir."
20. According to the aforesaid order, the matter was to come-up for hearing on 14.5.2009, however, in the meanwhile the applicant-husband, filed the Civil Application No.5486 of 2009 wherein, after initially adjourning the application to 8.5.2009, the ad-interim order 11.5.2009 was passed by the Court (coram:- Hon'ble Mr. Justice C.K. Buch) which reads thus:-
"Heard Mr. Hormaz B. Shethna, learned counsel for the applicant.
Say of the applicant-original petitioner is that earlier applicant-original petitioner had prayed for interim relief, but only because of the statement made by the respondent wife, the Court decided not to pass formal order as to stay of execution of the order. Order dated 28th April, 2008 passed in H.M.P. No. 1029 of 2003 is a matter of challenge in the main petition. On 4th February, 2009, the respondent wife decided to withdraw her statement made earlier, impliedly accepting that she shall not be executing the order under challenge. Therefore, this Court on 29th April, 2009 said that if no formal stay is granted against the execution of the order of maintenance, the lower court can execute the order qua amount of maintenance granted. In other words, the respondent-wife has been made entitled to get the order executed. Anxiety of the present applicant is that the moment when the respondent-wife decided to withdraw her earlier statement, this Court ought to have afforded an opportunity to get the order under challenge stayed to prevent the execution of the order, otherwise, it may render the entire petition fruitless or render the petition infructuous. On earlier occasion, i.e. on 8th May, 2009, respondent-party in person was absent when the matter was called out. Today also, she is not present. So, the Court is inclined to issue notice to other side.
Hence, notice returnable on 17th June, 2009. Appropriate further order shall be passed after hearing the other side. Meanwhile, if any formal execution proceedings are initiated by the respondent-wife, then, the same shall be treated stayed till further orders that may be passed by this Court. Direct service permitted."
According to the said order dated 11.5.2009, the Notice was made returnable on 17.6.2009 and in the meanwhile any formal execution proceedings initiated by respondent wife was stayed till further orders that may be passed. As regards the said order, the respondent wife, in paragraph No.6 of her affidavit dated 3.12.2010 stated thus:-
"6.
Moreover the petitioner has taken the stay on 11.5.2009 ex-parte and wrongly showed that the respondent was purposefully absent on 5.5.2009, 8.5.2009 and 11.5.2009 after taking the order on 29.4.2009. The true fact is that on 29.4.2009 when the respondent mentioned before the Hon'ble Mr. Justice C.K.Buch that the lower Court is not considering her words that she has withdrawn her statement by way of application dated 4.2.2009 the said order was passed and then respondent has requested for the next date on 14.5.2009 that is before vacation. Thereafter when the petitioner or his advocate came to know about the order dated 29.4.2009 has preferred CA 5486/2009. The clerk of Adv. Hormaz Shethna named Pradeep Pepliya visited my residence on 4.5.2009 at around 20:45 hrs. and handed the copy of the civil application. Respondent not only by words but also through written made clear objection and request to place the matter on or after 14.5.2009. The said written objection on civil application 5486/2009 is as under:-
"Received copy on 4.5.2009 at 20:45 hrs. at my residence handed by Mr.Pradeep Pipliya clerk of advocate Mr.Hormaz Shethna. I have full objection against the petition and need to file my reply accordingly. I have my examination from 5.5.2009 till 13.5.2009 and hence could not appear before that period. The case SCA 8137/2008 is to be on board next date 14.5.2009 so hereby requested to provide the date after 14.5.2009. Petitioner can also request before the Hon'ble C.K.Buch J. on 14.5.2009"
" Next date of family court is on 19.6.2009"
Still the CA 5486/2009 was listed on 5.5.2009, 8.5.2009 and 11.5.2009 and the stay was taken ex-parte. Even the advocate Hormaz Shethna or the petitioner has not informed the respondent that the matter is placed on 5.5.2009. Advocate Hormaz Shethna has hide the fact from the Court that next date of SCA 8137/2008 is on 14/5/2009. Petitioner or his advocate has purposefully not taken the date on 14.5.2009 because they knew very well that respondent will remain present on 14.5.2009. I am sorry to mention that this malpractice has taken place."
21. The applicant-husband filed his rejoinder affidavit and in paragraph No.12 thereof stated that:-
"12.
Sad to point out that in para-6 of her reply the respondent has made the allegations against Hon'ble Justice C.K.Buch as his lordship then was. In para-6 of her reply she has produced the notings that she put on C.A.5486 of 2009 while receiving the copy of the same. From her notings it appears that the respondent wanted this Hon'ble Court (Coram:- Hon'ble C.K.Buch,J as his lordship then was) to conduct the matter as per the will, pleasure and convenience of the respondent. Apparently the same did not happen and therefore the respondent has expressed the displeasure at the order dated 11.5.2009 passed by Hon'ble C.K.Buch,J as his lordship then was. Such conduct of the respondent is highly reprehensible and requires to be condemned by this Hon'ble Court in the strongest terms.
22. It appears that after the said order dated 11.5.2009 was passed, the CA No.5486/2009 was adjourned from time to time without any bi-party substantial hearing on merits of the said CA and / or the order dated 11.5.2009, at least until August 2010. On this count there is consensus between the contesting parties. Mr. Shethna, learned advocate for the applicant-husband has however submitted two factual aspects so far as the period after 11.5.2009 is concerned he submitted that as recorded by the Court (Coram:-Hon'ble Smt. Justice Abhilasha Kumari) the applicant-husband had tendered written submissions on 31.7.2009 with a copy to the respondent wife. The second aspect mentioned by him is about the order dated 31.8.2009 wherein the court (coram:- Smt. Justice Abhilasha Kumari) recorded the request for adjournment by the respondent - wife. Thereafter the order dated 31.8.2010 came to be passed, which reads thus:-
"The petitioner has agreed to make an adhoc payment, without prejudice to his rights and contentions in this proceedings, a sum of Rs.50,000/- in favour of child Dhruvesh Damir. The petitioner-husband has also stated that he would be in position to make payment of a sum of Rs.50,000/- by tomorrow. The petitioner is granted time to take out Fixed Deposit in a sum of Rs.50,000/- in the name of the son by 6th September, 2010. The fixed deposit should be taken out in the name of child with any Nationalized Bank for a period of three years in a fixed deposit scheme with cumulative interest. The receipt thereof shall be handed over to the mother/opponent. There shall be an instruction from the Registry to the bank that in no case the bank shall permit anyone including the mother to create any charge, in any manner whatsoever, against the said Fixed deposit.
S.O.
to 7th September, 2010."
23. Thereafter also the proceedings of the said CA No.5486 of 2009 appear were adjourned from time to time i.e. 7.9.2010, 14.9.2010 and then to 16.9.2010. The proceeding dated 14.9.2010 and the proceeding / order dated 16.9.2010 are the subject matter of present application. It may be noted that after the order dated 16.9.2010 the proceedings of CA No. 5486/2009 were adjourned to 21.9.2010 and then to 23.9.2010 when the proceedings were adjourned to 27.9.2010, 4.10.2010, 7.10.2010, 12.10.2010, 26.11.2010 and then to 7.12.2010 and 20.12.2010 when the Court (coram:- Hon'ble Mr. Justice M.D.Shah) passed following order and recorded that:- "party-in-person has placed on record the written arguments. It is ordered to be taken on record. S.O.
to 20.1.2011 ad-interim relief shall continued till then"
24. Thereafter on 20.1.2011 the Court (coram:- Hon'ble Mr. Justice K.S.Jhaveri)adjourned the application to 4.2.2011 and then after about 4 adjournments, it was adjourned to 7.4.2011 when the Court (coram:K.S. Jhaveri,J.) passed the order that "partly heard S.O. to 8.4.2011 interim relief granted earlier to continue till then". On the other hand so far as the MCA No.2569 of 2009 is concerned after the order dated 12.10.2010 the proceedings were adjourned to different dates. The details of the proceedings on 24.11.2010, 26.11.2010, 3.12.2010, 20.12.2010, 28.12.2010, 27.1.2011, 18.2.2011, 23.5.2011, 25.2.2011 (when arguments on behalf of applicant were concluded) have been recorded earlier, hence, they are not reiterated.
25. In the factual background learned advocate for the applicant-husband has, inter alia, submitted that after the ad-interim order dated 11.5.2009 in CA No.5486 of 2009 was passed formal stay order became operational. He further submitted that the said order continued until the order dated 16.9.2010 was passed. He also submitted that when the order dated 30.8.2010 requiring the applicant-husband to deposit a sum of Rs.50,000/- in Fixed Deposit with a nationalized bank in favour of the child was passed the applicant-husband did comply the said order. He further submitted that after the adjournment on 7.9.2010 the application was listed on 14.9.2010. Learned advocate for the applicant-husband has submitted that on 14.9.2010 the application was listed at serial No.37 in the second cause list while the first cause list contained about 31 matters and on account of paucity of time the second cause list could not be taken up for hearing. He also submitted that on 16.9.2010 the matter was listed in the first cause list at serial No. 31. Learned advocate for the applicant-husband has submitted that while the other applications were kept back in the first call in absence of the concerned advocate the subject application i.e. CA No.5486 of 2009 was not kept back in absence of the applicant's advocate and ex-parte order was passed. Learned advocate for the applicant-husband also submitted that in the order passed on 16.9.2010 it has been observed that on 14.9.2010 learned advocates and the applicant were not present however due to inadvertent mistake the said observation was made in the order dated 16.9.2010 since on 14.9.2010 the second cause list was not taken up and was discharged and then by the order dated 16.9.2010, ad-interim relief which was operating since 11.5.2009 came to be restricted until the next date of hearing which was scheduled for 21.9.2010. Learned advocate for the applicant-husband submitted that present application is, therefore preferred for correction of the observations made due to inadvertent mistake in the order dated 16.9.2010 with regard to the proceedings of 14.9.2010. Learned advocate for the applicant-husband submitted that since the second cause list was discharged it cannot be said that the advocates were present or absent. In his submission the matter was not called out in due course. He, in response to the Court's querry as to whether the applicant or the applicant's advocate were present or not in the Court during the day submitted that any statement on oath about presence or otherwise of the applicant or applicant's advocate/s on 14.9.2009 is not made in the application. He referred to para 2 and 5 of the said order dated 16.9.2010 and submitted that impression is created that the applicant and his advocate were not willing to proceed with the matter whereas record of the presence of the applicant-applicant's advocate is hundred percent and impeccable. He, in support of submission, made reference of the order dated 11.5.2009 (page 11 and 12 of the application) and submitted that it is the respondent-wife who has not remained present on many days of hearing. He referred to order dated 23.9.2010. He also made reference of the copy of the order at page 18 of the application i.e. order dated 31.8.2009 which recites that the hearing was adjourned at the request of the respondent wife. He also relied on the affidavit dated 29.12.2010 as well as affidavit dated 11.3.2011 made by the applicant
- husband and assailed the affidavit dated 3.12.2010 made by the respondent wife and submitted that the respondent wife has made inaccurate or incorrect submissions with regard to the applicant husband and / or orders passed from time to time in the two writ petitions and in Civil Application No. 5486 of 2009.
26. On the other hand the respondent wife (who appears as party-in-person) has opposed the application and invited to the notice of the Court, the remarks put by her on the memo of the application when a copy thereof was sought to be served on her. The said remarks read thus:-"Received copy in Court Room of Hon'ble Justice A.S. Dave at 14.00 hrs objection and permission to make submission before any other order passed more particularly when the stay was taken ex-parte knowingly that the party-in-person will not remain present on dates when the CA was filed as she has examination mentioned at there of receiving the copy of CA. Even she was not informed that the matter of CA was to listed on that particular day."
27. She also referred to the reply affidavit dated 3.12.2010 filed by her in response to present application. She submitted that the application preferred by the applicant i.e. MCA No.2569 of 2010 is not maintainable. She placed stress, in particular, on the averment made in paragraph Nos.3, 4 and 6 of her reply affidavit dated 3.12.2010. She submitted that the order dated 11.5.2009 was passed in her absence. She conceded to the fact that she had made statement, on 2.9.2008, before the Court that she would not take coercive steps for recovery, however she had subsequently withdrawn the said statement by submitting written application. She also submitted that it was after considering submissions and grievance to the effect that despite her submission before the trial Court that she had withdrawn the statement made on 2.9.2008, the learned trial Court was not accepting the oral submissions in absence of any order, the order dated 29.4.2009 was passed by the Court (coram:- Hon'ble Mr. Justice, C.K. Buch, as his lordships then was) and thereafter on 11.5.2009 the stay order came to be passed by the Court (coram: Hon'ble Mr. Justice, C.K. Buch) in her absence. The respondent wife has submitted that when the applicant or his advocate were not present how could the applicant contend that other applications were kept back or that on account of time constraint second list was not taken up for hearing. In response to the grievance made by the applicant with regard to the proceedings order dated 14.9.2010 and 16.9.2010 the respondent wife extensively read the averments in her affidavit, particularly in the paragraph Nos. 2, 3 and 6 of her reply affidavit dated 3.12.2010. The respondent wife also submitted with regard to the order dated 31.8.2009 (page-18) that the present application was adjourned because she was not feeling well on the said date. With regard to the order dated 23.9.2010 she relied on the remarks put by her on the memo of the Civil Application. The respondent wife also submitted that the applicant is trying to put burden of not attending the matter on her, which is incorrect allegation. During her submission the respondent wife made reference of various dates besides 14.9.2010 and 16.9.2010 e.g. 25.3.2009, 17.6.2009, 18.8.2009, 10.12.2009, 13.2.2009, 21.2.2009 etc. and submitted that neither of the two advocates of the applicant husband were present on the said dates and the proceedings had to be adjourned on account of applicant's advocate/s. With reference to the averment made by the applicant in paragraph No.4 of his affidavit dated 29.12.2010 the respondent wife submitted that the application under Section 498-A of Indian Penal Code has been filed by her as she has been harassed for dowry. She also submitted that the applicant has misused the process of law. The respondent wife also made grievance that the proceeding with regard to the SCA No.8137 of 2008 and SCA No.10866 of 2008 have not proceeded further. The respondent wife reiterated and emphasized that the application was taken up around 3.30 p.m. on 16.9.2010 and that nobody from side of applicant was present. The respondent wife also submitted that she is not at fault in any manner with regard to delay in the proceedings of any of the application or the two petitions. Accordingly on the ground of delay the respondent wife opposed the application and the relief prayed for by the applicant in present MCA No.2569 of 2010.
28. In response to the submission made by the respondent wife Mr. Shethna learned advocate for the applicant submitted that any case against the applicant alleging claim for dowry has not been filed. He also submitted that the learned Court (Hon'ble Mr. Justice, C.K. Buch) had granted three adjournment to the respondent and that therefore grievance made by the respondent that the ad-interim order dated 11.5.2009 was passed ex-parte is unjustified. He also refuted the allegation that the applicant has misused the process of law and submitted that the applicant has only exercised legal right against the order of the trial Court by filing writ petition against the said order which as per the applicant's submission is erroneous. He submitted that the presence of the applicant during the proceedings are impeccable. He, in this context, referred to pages 11 and 12 of the application i.e. order dated 11.5.2009 and submitted that the respondent wife is not remaining present. He also made reference of page 18 i.e. order dated 31.8.2009 to support the said submission. He submitted that the application deserves to be allowed.
29. As noted hereinabove earlier, certain affidavits came to be made during the course of the hearing including affidavits dated 23.12.2010 and 29.12.2010 made by the learned advocate Ms. Patel as well as affidavit made by respondent wife dated 4.3.2011, affidavits dated 29.10.2010 and 11.3.2011 made by applicant husband. Learned Counsel for the applicant husband and the respondent wife have extensively referred to the said affidavits I have taken the same into consideration. It is necessary to recall some of the dates and events which have emerged from the record or the submissions.
28.4.2008: In the Family Suit No.1029 of 2003 common order below exhibits 1, 8 and 11 came to be passed on 28.4.2008 directing the husband to pay a sum of Rs.15,000/- for the wife and minor son towards interim maintenance from the date of application.
14.5.2008: Against the said order dated 28.4.2008 the applicant preferred writ petition being SCA No.8137 of 2008.
2.9.2008: The respondent wife made statement in the Court during hearing of SCA No.8137 of 2008 that till said petition is heard she will not take any coercive steps to recover the amount pursuant to the impugned order.
3.2.2009 The respondent wife filed declaration that she was withdrawing the statement made by her on 2.9.2008.
29.4.2009 The Court (coram: Hon'ble Mr. Justice C.K. Buch)passed common order in SCA No.8137 of 2008 and 10886 of 2008 and the proceedings came to be adjourned to 14.5.2009.
5.5.2009 Before the returnable date 14.5.2009 the husband filed the Civil Application No.5486 of 2009 on 5.5.2009.
11.5.2009 After recording that the respondent was not present the Court (coram: Hon'ble Mr. Justice C.K. Buch)passed the ad-interim order dated 11.5.2009, in CA No. 5486/2009 in absence of respondent, directing issuance of Notice returnable on 17.6.2009 and in the meanwhile staying, till further order, the formal execution proceedings initiated by the respondent.
31.8.2010 Order was passed wherein it was recorded that:-" the petition has agreed to make an adhoc payment, without prejudice to his rights and contentions in this proceedings, a sum of Rs.50,000/- in favour of child Dhruvesh Damir....... The fixed deposit should be taken out in the name of child with ........in no case the bank shall permit anyone including the mother to create any charge........."
14.9.2010 Thereafter the proceedings were adjourned to 7.9.2010 and then to 14.9.2010 and then to 16.9.2010.
30. On 16.9.2010 the order came to be passed in connection with which present review application is preferred. Though the subject matter is the order dated 16.9.2010 and, in view of the said order, the order dated 11.5.2009 also, however, the applicant has, for some reason also made averements with regard to the oder dated 31.8.2010 in the language which is unwarranted and unjustified. According to the said order dated 31.8.2010 the husband had to deposit amount of Rs.50,000/- in Fix Deposit in the name of the child. The said order, as is apparent came to be made only for, and in the interest of, the child, for which the applicant also could not have any objection, more particularly when the order merely required the applicant to take out Fixed Deposit in the name of child and not in the name of the (mother) respondent wife and hence it was also clarified that nobody, including respondent wife, will be entitled to create any charge in any manner over the said Fixed Deposit. The order also did not (and does not) direct outright payment on permanent basis to the wife or even to the child. However the husband has made averments in paras 6 and 15 of the MCA with reference to the said order in language which is unjustified and unwarranted.
31. Having made grievance about the said order dated 31.8.2010, the applicant has, with reference to the proceedings dated 14.9.2010 and the order dated 16.9.2010, claimed, inter alia, that due to inadvertence or oversight the Court has recorded that on 14.9.2010 the applicant and his advocate were not present when the matter was "taken up for hearing" and due to misreading on part of the Court the applicant's absence on 14.9.2010 is recorded in the order dated 16.9.2010 while the matter cannot be said to have been "taken-up for hearing". The applicant has also stated that the applicant and his advocate have always attended the proceedings and that therefore present application is preferred with a request to expunge the observations against applicant's advocate.
32. It has emerged from the record that when the copy of the application memo of CA No. 5486 of 2009 was served on the respondent she had put below mentioned remarks:-"Received copy on 04/05/2009 at 20:45 hours at my residence handed by Mr. Pradeep Pepliya clerk of advocate Hormaz Shethna. I have full objection against the petition and need to file my reply accordingly. I have my examination from 05/05/2009 till 13/05/2009 and hence could not appear before that period. The case SCA 8137/2008 is to be on board next dated 14/05/2009 so hereby requested to provide the date after 14/05/2009 petitioner can also request before Hon'ble C.K. Buch, J. on 14/05/2009". It also appears from the record that the said application was listed before the Court (coram: Hon'ble Mr. Justice M.R. Shah) on 8.5.2009 when the Court recorded that "respondent party-in-person is absent hence, S.O. to 11.5.2009". Thereafter, the earlier referred ad-interim order dated 11.5.2009 came to be passed. Subsequently the above referred order dated 31.8.2010 was passed and the application was adjourned to 7.9.2010 and then it was adjourned to 14.9.2010. With reference to 7.9.2010 the respondent has, in paragraph No. 3 of her affidavit dated 3.12.2010 stated that applicant's advocate Ms. Patel had made request for adjournment on the ground of leave note of applicant's advocate Mr. Shethna and the application was adjourned to 14.9.2010. It is not disputed that leave note was filed on 7.9.2010. With reference to 14.9.2010 the respondent has stated in paragraph No.3 of her affidavit dated 3.12.2010 that on 14.9.2010 she had made request for priority and in the affidavit dated 4.3.2011 she has stated that she had made the request at around 1.45 pm on 14.9.2010 and that even after 1.45 pm until 5.00 pm nobody from the side of the applicant was present on 14.9.2010. As regards 16.9.2010 she has stated that no one from the side of applicant was present from 11.00 am to 3.30 pm when the application was taken in regular course. The said allegation and submission have been disputed by the applicant in his affidavit.
33. As regards the observations with reference to 14.9.2010 the claim of the applicant and his advocate is that the matter might have been mentioned by the respondent to seek priority but it was not, and cannot be said to have been, taken-up "for hearing", and that if at the time when the request for priority is made by one of the parties, the other party is not available at that time, then it should not be treated or construed as absence of that other side or his advocate at the time of "hearing", particularly when any intimation about the request being made or having been made is not given to that other side. Thus it also cannot be said that the applicant's advocate was not present when the matter was taken-up for hearing on 14.9.2010.
34. The respondent wife has controverted the allegations made by the applicant. In her affidavit dated 4.3.2011 the respondent has stated certain details about the request made by her for hearing of the application and she read over the details stated by her in affidavits dated 3.12.2010 as well as 4.3.2011 claiming and emphasizing that no one from the side of the applicant was present. The Court, however, has to also take into account that the respondent has clarified and admitted that on 14.9.2010 before seeking priority she had not informed the applicant or his advocate that she would be making the request and that on 14.9.2010 even after requesting for priority she had not informed the applicant or his advocate about the request made by her. It is another matter that on 14.9.2010 the application was adjourned to 16.9.2010 and any order, much less any adverse order was not passed. However, the fact remains, and cannot be overlooked that the applicant and/or his advocate were not informed and / or were not aware and had not knowledge about the request being made or about the request made by the respondent wife.
35. Therefore it is necessary and appropriate to clarify that the observations with reference to proceedings on 14.9.2010 in the order are not made to give such an impression as is apprehended and / or perceived by the applicant's advocate and the apprehension or the perception are ill-founded and unjustified and that the observations in the order do not reflect and / or are not made to reflect conduct of the applicant or his advocates or to reflect the details about the past or earlier proceedings and / or about the presence or absence of the applicant's advocate during such proceedings. The observation about 14.9.2010 was made as the aforesaid position was not before the Court and ordinarily such request to the Court are made with intimation to the other side however the aforesaid position that the applicant / his advocate were not informed about the request made by the respondent came to be clarified during the hearing of this application. Thus, in view of such facts, the record of the proceedings of 14.9.2010 ought not give an impression as if the advocate was absent when the matter was taken-up for hearing. Since the applicant and his advocate were admittedly not informed by the respondent and consequently they did not have any information about the request made by the respondent, which aspect has emerged from the affidavits and submissions made by the respondent during the hearing of present application. In the facts of the case it is necessary to clarify and to direct that the observations in para 2 of the order dated 16.9.2010 to the effect that "On 14.9.2010 Mr. Shethna and Ms. Patel, learned advocate did not remain present when the matters were taken up for hearing and therefore hearing was adjourned to 16.9.2010 i.e. today. Today also Mr. Shethna and Ms. Patel, learned advocates representing the petitioner-husband are not present";
and the observation in para 5 of the said order to the effect that "on behalf of the petitioner - husband no one attended hearing on last date", and the observations in the said para 5 to the effect that "today the Court could have dismissed the Special Civil Application No.8137 of 2008 (filed by petitioner husband) for non-prosecution and / or could have passed appropriate orders in Special Civil Application No. 10866/2008 (filed by the petitioner-wife). However as a last chance" shall not from part of the order. The applicant has, in para 18-A prayed to expunge the observation in para (2) and (5) about the petitioner's advocates' absence on 14.9.2010. The said relief accordingly stands granted.
36. So far as the details of the proceedings of 16.9.2010 recorded in the order passed on the said date are concerned, the applicant has stated in para 13 of the application that "the petitioner would have been happy if the Court had given him one opportunity of hearing as given to other advocates before passing the ex-parte order at Annexure-D". Thus, the applicant has made grievance and allegation that on 16.9.2010 in their absence at the time of hearing passover was not granted and the order was passed in the fist call whereas in other cases passover was granted in absence of advocate. The applicant has prayed that "In pursuance of the prayer (A) above, rectify the resultant order modifying the interim relief in para (5) of the impugned order at Annexure-D".
37. The said relief is prayed for with reference to the order dated 11.5.2009. So far as the said order is concerned, it is noticed that the said order was, as recorded therein, passed without hearing the respondent wife. It was also noticed that any time limit regarding period of operation of the relief granted vide said order was not specified in the said order dated 11.5.2009 and that therefore the relief would automatically continue in event of adjournment. According to the said order dated 11.5.2009 the next date of hearing was 17.6.2009 but the operation of ad-interim stay was not limited to the said next date and after 17.6.2009. The said application, thereafter appears to have been adjourned, from time to time, alongwith simultaneous and automatic continuation of the relief. After it was adjourned on 7.9.2010 and 14.9.2010 the said application was taken up for hearing on 16.9.2010 when, after considering above mentioned aspects of the order dated 11.5.2009, the order dated 16.9.2010 was passed in C.A. No. 5684/2009. Since the said C.A. and the petitions are pending (before the Court having regular roster of the matters), it would not be proper to enter into detailed discussion or to make elaborate observations with reference to the said order dated 16.9.2010, however it would be appropriate to clarify and / or mention some connected and relevant aspects. The applicant has prayed that the direction in para 5 of the order dated 16.9.2010 may be rectified. The said prayer is made on the unsubstantiated allegation that though in other cases in absence of advocate in first call pass-over was granted, but in his pass-over was not granted. Such averments are made without mentioning any instance wherein, in view of absence of advocate, the case was passed over even in absence of any request (i.e. without there being any request for) for passover. It is pertinent that in case of the said application No. 5486/2009 any request by anyone for passover was not made when the application was called out in regular course and taken up for hearing on 16.9.2010 and until the order was passed. It is not even the case of the applicant that request for passover was made. The applicant seems conscious about the said fact, hence in the application he has merely stated that "the petitioner would have been happy if the court had given him one opportunity" of hearing. The purport of the prayer - averemnts admits the position about the absence at the relevant time when the matter was taken up for hearing in regular course on 16.9.2010 however any reason for absence on 16.9.2010 is also not stated by the applicant in his application or submission. In this backdrop it is appropriate and necessary to recall that by the said order dated 16.9.2010 the Court did not and has not vacated the interim relief incorporated in / granted by the order dated 11.5.2009 and actually by the said order dated 16.9.2010 only time limit qua the period of operation of the relief until the next date of hearing is provided in view of which from the next date of hearing (i.e. after the order date 16.9.2010) instead of automatic continuation of the order, in the event of adjournment, it would be necessary to get the period of operation of the relief extended by a separate / specific order of the Court. That is the limited effect of the direction contained in paragraph (5) of the order dated 16.9.2010. The said order dated 16.9.2010 did not cause any prejudice to the applicant, particularly because the relief granted vide order dated 11.5.2009 was not vacated by the said order dated 16.9.2010.
38. There are few other facets of the matter. As per the said order dated 16.9.2010 the hearing of the application was adjourned to 21.9.2010 and then to 23.9.2010 and then the said application was adjourned to different dates e.g. 27.9.2010, 4.10.2010, 7.10.2010, 12.10.2010, 26.11.2010, 7.12.2010 etc. It appears from the record that on all those dates the relief granted vide order dated 11.5.2009 was ordered to be continued / extended by separate orders passed on the said dates and that the eventuality mentioned in the order dated 16.9.2010 did not arise and on each date separate order continuing extending the relief granted by the order dated 11.5.2009 have been passed. Considered from different perspective, the said direction contained in para 5 of the order dated 16.9.2010 is acted upon and got exhausted on 21.9.2010 or in any case on the subsequent dates when the proceedings of the application were adjourned and the relief granted vide order dated 11.5.2009 was ordered to be continued / extended from one date to another. Furthermore as observed earlier the relief granted vide order dated 11.5.2009 was not vacated by the said order dated 16.9.2010. According to the said direction in para 5 of the order dated 16.9.2010 it was only in the event the application was not attended on the next date i.e. 21.9.2010 that the said relief was to stand vacated. However, the said eventuality did not arise and the proceedings were adjourned on 21.9.2010 and then on 23.9.2010 and thereafter also the proceeding have been adjourned on various occasions and the relief under the order dated 11.5.2009 was and has been continued - extended by separate orders passed on each dates, hence the said direction contained in the later part of para 5 of the order dated 16.9.2010, got exhausted immediately on or after 21.9.2010 by the subsequent orders which were passed on different dates e.g. 23.9.2010, 27.9.2010, 4.10.2010, 7.10.2010, 12.10.2010, 26.11.2010, 7.12.2010 etc. Considered from another perspective, because of the said direction what became necessary was that the concerned party would be required to get the period of operation of relief extended by specific order of the Court instead of its automatic continuation in the event of adjournment, (and that has been done, as per the record on all the subsequent dates when the said application was adjourned from time to time). That is the limited effect of the order dated 16.9.2010.
39. Even if any of the aforesaid aspects are not taken into account it is necessary to take into consideration that the respondent wife has submitted and declared that the petitions and the said civil application which were listed for hearing before the Court having the regular roster have been heard and the hearing is concluded and the order is reserved. Therefore, the said relief granted vide order dated 11.5.2009 and continued from time to time until the matters came to be finally heard, would continue (i.e. the operation of the said relief would continue) until the order is made and pronounced (as the order in the said matters is reserved) and that therefore it would not be in propriety to make observation or to pass order or any direction about the aspects related to the merits of the order dated 16.9.2010 and / or about the merits of the applicant's other claim i.e. other than the one made in para 18(A) (which has been accepted and granted as per earlier part of this order). Thus, for the aforesaid reasons any order on the said count is not made. It is also relevant that once the order that is to be made by the Court in the main CA No.5486/2009 and the said two petitions which are already heard (and the order is reserved) by the Court where the regular roster is assigned, is pronounced then the said final order/s would operate and govern the field. Therefore also it would not be in propriety to pass order in this Miscellaneous Application.
40. It may also be mentioned that as recorded in different orders passed from time to time and also in present order, the dictation of present order had to be taken up on different dates and on some dates the dictation could not be taken up for the reasons stated in the said different orders of respective dates. Therefore, the said dates and details are not reflected or repeated in present order.
41. In view of the foregoing discussion present Misc. Application is partly accepted and granted with the direction that the observations in para 2 and 5 of the order dated 16.9.2010 which are also noted hereinabove in para No.35 would not form part of the order dated 16.9.2010 and as regard the prayer other than the prayer in para 18(A) any order is not made in view of the above discussion and since the main C.A. No.5486/2009 and the petitions are already heard by the Court where the regular roster is assigned and the order is reserved any other order, in view of the above discussion, clarification and direction would not be in propriety or necessary. This Misc. Civil Application stands disposed of accordingly.
(K.M.THAKER,J.) Suresh* Top