Raj Kumar Sharma vs Shalu Sharma

Hemant Gupta, J.—The Petitioner is in revision aggrieved against an order passed by the learned trial Court on 17.09.2010, whereby the evidence of the Petitioner was closed.

The Respondent-wife has filed a petition for dissolution of marriage as well as an application for grant of maintenance pendente lite and litigation expenses. Since the arrears of maintenance pendente lite were not being paid, the evidence of the Defendant-Petitioner was struck of on 20.05.2010. However, the witness of the wife-Respondent was bound-down for cross-examination. On 17.08.2010, the cross-examination of the wife''s witness was completed and the learned trial Court passed the following order:

One PW cross-examined. Petitioner closed her evidence. To come up for evidence of Respondent on 17.09.2010.R Ws be summoned for that date on filing of PF, DM and list of witnesses within 5 days.

Subsequent to the aforesaid, the learned trial Court on 17.09.2010 passed the following order:

No RW is present nor could be summoned through agency of the Court due to non-filing of PF, DM & list of witnesses. To come up C.R. No. 6459 of 2010 for rebuttal evidence of the Petitioner, if any, or for arguments on 30.09.2010.

Initially, this Court has granted one opportunity to the Petitioner to lead his entire evidence vide order dated 12.10.2010. However, the Respondent-wife filed an application before this Court pointing out that, in fact, the defence of the Petitioner was struck off on 20.05.2010, therefore, the learned trial Court could not have granted any opportunity to the Petitioner to lead his evidence.

From the perusal of the interim orders produced by the learned Counsel for the Petitioner, it is apparent that the defence of the Petitioner was struck off for non-payment of maintenance pendente lite on 20.05.2010. The said order has not been set aside either in appeal or in revision nor any application was filed by the Petitioner before the learned trial Court for recall of the said order. In view of the fact that when the order of striking off of the defence has not been nullified in any manner, the case could not have been fixed for the evidence of the Petitioner at all. It appears that the learned trial Court inadvertently passed an order on 17.08.2010 fixing the case for the evidence of the Petitioner, when the defence of the Petitioner was already struck off.

Therefore, I am of the opinion that the Petitioner is not entitled for any opportunity to lead his evidence in view of the fact that his defence already stands struck off vide order dated 20.05.2010.

Consequently, I do not find any merit in the present revision petition. The same is accordingly dismissed.