IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 407 of 2023
with
I.A. no.192 of 2024
Manoj Gupta …. Appellant
-versus-
Ashmita Horo @ Gupta …. Respondent
Advocates appear in the case:
For appellant: Mrs. Ruchi Rajgarhia, Advocate
For respondent: Mr. Sougat Dash, Advocate
CORAM:
THE HON’BLE MR. JUSTICE ARINDAM SINHA
AND
THE HON’BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Date of hearing and Judgment: 16th August, 2024
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ARINDAM SINHA, J.
1. The appeal has been listed under heading ‘For Orders’ on
appellant having applied to produce additional evidence in appeal. In
the application (I.A. no.192 of 2024) there is an index. It is reproduced
below.
Page 1 of 6
“
SL PARTICULARS ANNEXURE PAGE No.
No.
1. Petition copy 1-9
2. True copy of the medical
reports and photograph of
2 10-14
assault upon the father of
the Appellant by the
Respondent and her family.
3. True copy of the FIR No.28
of 2021 lodged by the
3 15-59
Appellant against the
Respondent.
4. True copies of the account
statement of the Appellant
4 60-67
showing withdrawal of
money by the Respondent at
Sundergarh.
5. Complaint sent by the
respondent to the higher
5 68-71
official of the appellant.
6. True copy of the document
given by the Church
MATA no. 407 of 2023 Page 2 of 6
Authority, Latikatha. 6 72
7. True copy of the notarized
Evidence-in-chief of the
7 73-76
appellant in CRP No.-36 of
2022.
8. True copy the judgment
dated 04.10.2023 in CRP
8 77-89
No.36 of 2022.
9. True copy of the document
issued by the Sahu Samaj,
9 90
Jaspur, Chattishgarsh
against the appellant and
his family.
2. The application along with the appeal are taken up for hearing.
3. Mrs. Rajgarhia, learned advocate appears on behalf of
appellant-husband. She submits, her client is aggrieved by judgment
dated 13th October, 2023 of the Family Court dismissing the civil
proceeding and thereby rejecting her client’s case for dissolution of the
marriage.
4. She submits, the additional evidence her client seeks to produce
in the appeal are necessary for adjudicating controversy between the
parties regarding her client’s grounds for dissolution of the marriage.
MATA no. 407 of 2023 Page 3 of 6
Some of the documents though with her client, were not tendered in
the Family Court. Her client relied on advice of learned advocate
engaged in said Court. There were no laches or omission on his part.
There are other documents also. All the documentary evidence sought
to be produced be accepted as additional evidence in the appeal.
5. Mr. Dash, learned advocate appears on behalf of respondent-
wife. He submits, the documents sought to be disclosed were not
produced at trial. In the circumstances, the documents having been
with appellant, provision under rule 27 in order XLI, Code of Civil
Procedure, 1908 does not stand satisfied. He opposes the application.
He submits further, the documents cannot also be introduced because
there is no pleading in the petition regarding them.
6. From the index it appears that documents at serial nos. 4 to 6, 8
and 9 were made by persons other than appellant. He wants to rely on
those and other documents mentioned in the index, presumably on
advice that such documents will further his case for dissolution of the
marriage. Submission was made earlier that appellant serves in
forward areas and hence is away at work. In the circumstances, even if
we disregard submission made on his behalf that there was omission
on part of learned advocate engaged by him in the trial Court, still we
can accept that even after exercise of due diligence he could not
MATA no. 407 of 2023 Page 4 of 6
produce the documents at the time when the decree appealed against
was passed.
7. Considering submissions made on behalf of respondent that the
documents were not produced and hence there was no question arisen
to deal with them at trial, we think fit to direct remand of the case
instead of accepting the documents as additional evidence in appeal,
also for enabling us to pronounce judgment. More so because,
appellant launched the proceeding for dissolution of the marriage.
Respondent has remedy of interim maintenance availed or otherwise
during pendency of the civil proceeding.
8. For reasons aforesaid, impugned judgment is set aside with
direction of remand. Appellant be given opportunity to adduce further
evidence, to tender the documents mentioned and disclosed in the
application (I.A. no.192 of 2024). Marking of exhibits will be on due
proof. Correspondingly, respondent may also adduce further evidence,
apart from cross-examining appellant or any other witness produced
by him for purpose of adducing further evidence. The documents
sought to be tendered are, as we have already observed, presumably on
advice to appellant that they are relevant to his case for making out a
ground for divorce. Mrs. Rajgarhia submits, ground taken in the
MATA no. 407 of 2023 Page 5 of 6
petition was cruelty. The documents sought to be produced will
demonstrate same.
9. The Family Court is requested to issue appropriate notice and
proceed on resuming hearing of the case from stage of adducing
evidence.
10. The appeal is disposed of.
(Arindam Sinha)
Judge
(M.S. Sahoo)
Judge
Sks
Signature Not Verified
Digitally Signed
Signed by: SISIR KUMAR SETHI
Designation: Personal Assistant
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 16-Aug-2024 [Link]
MATA no. 407 of 2023 Page 6 of 6
