1 wp1728-11.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPLICATION JURISDICTION Writ Petition No. 1728 of 2011 Jagannath Tulshiram Gavali .. Petitioner v/s. Swati Jagdish Gavali ..Respondent Mr.S.P.Shinde for the petitioner Mr. Siddharth Kapse for the respondent. CORAM : R.Y.GANOO, J. DATED : 20th April, 2011 P.C. : 1. Rule. 2. Rule made returnable forthwith. 3. Learned Counsel for the respondent waives service of the Notice of admission of the petition. By consent petition is taken up for hearing. 4. Petitioner filed Divorce Petition as per the provisions of Hindu Marriage Act against the respondent in the Family Court at Nashik, being Hindu Marriage Petition No,654 of 2010. The respondent 2 wp1728-11.sxw herein filed an application at Exhibit 12 for interim maintenance. The said application was filed on or about 24.12.2010. The said application was served upon the advocate for the petitioner appearing in Family Court at Nashik (hereinafter referred to as said Advocate) on 28.1.2011. I am saying this on the basis of the endorsement found on the application at page 25 of the petition. It appears that on the very day, said Advocate sought time. It is seen that the said Advocate gave his say on the said application at Exhibit 12 as request for adjournment was rejected. On the very day the learned Judge looked into the papers and passed an order. Learned Advocate for the petitioner therefore submitted that the principles of natural justice have not been followed while passing the impugned order and therefore it is necessary that the impugned order be set aside and the petitioner be given chance to file detailed affidavit in reply and put up his case before the court in the proper perspective. 5. Learned Counsel appearing on behalf of the respondent opposed the said submission and submitted that the learned Principal Judge of the Family Court has heard both the parties in person as well as the Advocate for the respondent i.e.wife. He submitted that in the 3 wp1728-11.sxw impugned order there is a reference as regards the learned Judge perusing the papers which were produced on record. According to him the impugned order is passed after following the principles of natural justice and therefore there is no need to interfere in the order, much less the need to set aside it and remand it back to the Family Court at Nashik. 6. I have perused the entire record. It is noticed that the application dated 24.12.2010 was served upon the said Advocate on 28.1.2011 i.e. after one month. The learned Counsel for the petitioner had submitted that petitioner wanted to file a detailed reply and oppose the said application and was not prepared to deal with the said application on merits on 28.1.2011. Keeping in view the normal method of attending to a litigation, the learned Principal Judge should have given a period of atleast 7 days or so to enable the petitioner to go through the application, and file a proper reply. It appears that the petitioner and the said Advocate had no alternative, but to hurriedly deal with the said application and file a reply, a copy of which is at page 28. Atleast after filing such a reply it was necessary for the learned Principal Judge to allow the parties to represent their case 4 wp1728-11.sxw through Advocate, particularly when an Advocate is appointed by a party. This was not done by the learned Principal Judge of the Family Court, Nashik. I am saying so because perusal of impugned order at page 3 shows that the learned Principal Judge heard both the parties in person as well as the learned Advocate for the respondent. No doubt, it is stated in paragraph 3 that the Advocate for the petitioner, after filing say left the court. I am prepared to accept this observation of the learned Principal Judge. Learned Advocate for the petitioner accepted the said fact. Even if it is correct that said Advocate left the court, it was expected of the learned Principal Judge to give a chance to the petitioner to get his Advocate. Instead of giving chance to the petitioner to get his Advocate, the learned Principal Judge proceeded hastily to decide the said application and pass an order on the very same day i.e. 28.1.2011. I am unable to understand as to why the learned Principal Judge of the Family Court attended to this interim application for maintenance in a hurried manner. The petition came to be filed for divorce on 1.7.2010. The application for interim maintenance was been filed on 24.12.2010 i.e. practically after five months. This will go to show that the respondent was taking things easy in the matter of getting 5 wp1728-11.sxw maintenance. If the respondent had taken time of about five months to file an application for interim maintenance, then there was no need for the learned Principal Judge to proceed to hear the application hurriedly and insist that the hearing of the said application must be conducted on the very day when the application was served. A perusal of the entire record goes to show that the learned Principal Judge exhibited unnecessary haste in deciding the application. He should have given reasonable time to the petitioner to attend to the matter. 7. It was argued by the learned Advocate for the respondent that the learned principal Judge has perused the documents. In my view, the Principal Judge should have given reasonable chance to the petitioner to put up his case through an advocate particularly because an advocate did appear for petitioner on 28.1.2011 and filed say on behalf of the petitioner. Hence submission of the learned advocate for respondent that the learned Principal Judge had followed principles of natural justice can not be accepted. Merely going through the documents and hearing parties was not sufficient particularly when petitioner had engaged the services of an advocate. 6 wp1728-11.sxw 8. In view of whatever is stated above, I hold that the principles of natural justice are not been followed while dealing with application at Exhibit 12. In view of this observation, the impugned order dated 20.1.2011 is required to be set aside. The petitioner must get a chance to deal with the said application for interim maintenance in a proper manner. It appears that the petitioner had no alternative, but to file reply and a bare perusal of the said reply which is at page 28 of the petition goes to show that he has hastily filed the said reply. In my view, an opportunity has to be given to the petitioner to file a detailed reply so that he can deal with the contentions raised in the application for maintenance and submit his case before the learned Judge. In view of this, I am inclined to set aside the Order dated 20.1.2011, give time to the petitioner to file a detail reply. If necessary, the respondent can file rejoinder and thereafter the learned Judge presiding over in the Family Court at Nashik shall decide the application in accordance with the provisions of law. 9. For the reasons mentioned aforesaid, following order is passed. 7 wp1728-11.sxw ORDER i) Rule is made absolute. ii) The order dated 20.1.2011 passed by the Principal Judge, Family Court, Nashik below Exhibit 12 in Hindu Marriage Petition No.654 of 2010 is set aside. Iii) Application at Exhibit 12 filed by the respondent for interim maintenance is restored to the file of Principal Judge, Family Court at Nashik. iv) Matter shall appear before the learned Principal Judge of the Family Court at Nashik on 6.6.2011. The petitioner shall file a detailed affidavit in reply directly in the court on 6.62011. He shall serve copy of the said application to the respondent in the Family Court on the same day. After the copy is served upon the respondent herein, the respondent is free to file affidavit in rejoinder. After filing of the affidavits is complete, the learned Principal Judge of the Family Court shall hear and dispose of the interim application at Exhibit 12 on merits. 8 wp1728-11.sxw v) The Registrar General of this Court is directed to serve a copy of this order upon His Honour Judge Mr. P.Y.Kale, who had passed this order dated 20.1.2011 in his capacity as Principal Judge of the Family Court at Nashik wherever he is presently posted. The Registrar General shall report compliance accordingly. There shall be no order as to costs. [R.Y.GANOO, J.]