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2004 DIGILAW 489 (CAL)

MANJUSHREE HALDAR v. SALIL KUMAR HALDAR

2004-07-22

ALOK KUMAR BASU

body2004
ALOK KUMAR BASU, J. ( 1 ) NOBODY appears in spite of service of notice. The affidavit-of-service must be filed in course of this day by the learned Advocate for the petitioner. It also appears from record that one learned Advocate entered appearance on behalf of the opposite party. As there is no appearance on behalf of the opposite party today at the time of hearing of this application, I have heard the submission of the learned Advocate for the petitioner. ( 2 ) THE opposite party/husband filed a suit for divorce being Matrimonial suit No. 8 of 1998 against the present petitioner and the said suit was decreed ex parte on 29th July, 1998. The petitioner thereafter on 28th January, 1999 filed an application for setting aside the ex parte decree alongwith a separate application for condonation of delay under section 5 of the Limitation Act. ( 3 ) THE learned Court below took up the said petition for condonation of delay and petition for setting aside ex parte decree for disposal and on examination of evidence of the parties, the learned Court has rejected the said applications by the order impugned in this application. ( 4 ) THE learned Advocate appearing for the wife/petitioner contends that the learned Court itself recorded in the impugned order that the summons which ought to have been served upon the present petitioner in connection with the original suit was found with the record and that apart, no acknowledgement card was found with the record and the opposite party only filed a postal receipt. ( 5 ) THE learned Advocate submits that although there was a publication in newspaper, but, that publication cannot have the final impact on the outcome of the proceeding only because according to the procedure prescribed in the civil Procedure the Court must be satisfied that the party did not come in spite of service of summons and daily then a newspaper publication is permissible and hence, the newspaper publication by itself cannot prove that there was satisfactory service upon the aggrieved party. The learned Counsel submits that there has been sufficient explanation by the petitioner behind the delay made by her in preferring the application and hence the learned Court was not justified in rejecting the petition. ( 6 ) I have heard the learned Advocate for the petitioner. The learned Counsel submits that there has been sufficient explanation by the petitioner behind the delay made by her in preferring the application and hence the learned Court was not justified in rejecting the petition. ( 6 ) I have heard the learned Advocate for the petitioner. Generally speaking, there is little scope of interference in a revision application, but, there is exceptional case where if the Court is satisfied that the Trial Court did not make proper appraisal of the fact and evidence and pass such an order which appears to be prima facie not sustainable, the Court will interfere and grant necessary relief in such case. In the present case, having regard to the contents of the impugned order and the application preferred by the present petitioner, i am of the view that the learned Judge was not justified in rejecting the application. Accordingly, I find merit in the present revision application and the impugned order is set aside. The application for condonation of delay is allowed. I also find that present petitioner had sufficient reason for non- appearance on the fixed date in connection with the impugned matrimonial suit as there was no satisfactory service upon the petitioner regarding that suit. In view of this observation, I am of the view that the learned Court should have allowed the petition for setting aside the decree in the interest of justice. ( 7 ) ACCORDINGLY, I set aside the order dated 21st July, 2001 and direct the court below to restore the original matrimonial suit to its file and number and to proceed with the disposal of the same in accordance with law at an early date. There will be no order as to costs. Revision application allowed.