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2005 DIGILAW 2562 (RAJ)

Shailendra Singh Panwar v. Rashmi Panwar

2005-09-23

AJAY RASTOGI

body2005
Judgment Ajay Rastogi, J.- Instant revision petition has been filed by husband (petitioner) against order dated 02.06.2005 passed by District Judge, Jhalawar in Civil Misc. Case No. 233/2004 whereby ex parte decree of divorce granted in his favour has been set aside on the application filed by respondent (wife) under Order 9 Rule 13, CPC. 2. Petitioner filed an application for divorce under Section 13 of the Hindu Marriage Act, 1955, of which summons were served upon the wife (respondent) for the date fixed in the notice for 10.09.2004, when she did not appear before the trial Court on the said date fixed, accordingly ex parte proceedings were initiated and decree of divorce was granted in favour of petitioner husband vide Judgment dated 17.09.2004, against which on 211.2004 respondent (wife) moved an application under Order 9 Rule 13, CPC, alongwith application under Section 5 of the Limitation Act, for setting aside ex parte decree of divorce, in which it was pleaded that notice for 10.09.2004 was served but she was not well and her brother had also expired - in support of which she produced medical certificates alongwith application, showing bona fide reason of her absence. The trial Court, after taking into consideration merits of application under Order 9 Rule 13, CPC, accompanied by application for condonation of delay under Section 5 of the Limitation Act, allowed the application and set aside ex parte decree dated 17.09.2004 vide order dated 02.06.2005. Hence, this revision petition. 3. Only contention advanced by Counsel for petitioner is that proper notice was served upon the respondent wife and despite it, she did not appear on the date mentioned in the Notice, as such no illegality was committed in passing ex parte decree on 17.09.2004 and since no application either for revocation of decree under Order 9 Rule 13, CPC, or statutory appeal against the decree was filed within the period of limitation as provided under the Act which conferred right in favour of the petitioner in view of Section 15 of the Act. In support of his contention, the Counsel placed reliance upon decisions of this Court in Shimla Devi vs. Kiran Kumar, 1994 (3) WLN 519 and Rajendra Pd. Yadav vs. Prem Lata, 1996 (1) RLR 8 . 4. I have considered the contention advanced by Counsel for petitioner and perused the finding recorded by the trial Court. In support of his contention, the Counsel placed reliance upon decisions of this Court in Shimla Devi vs. Kiran Kumar, 1994 (3) WLN 519 and Rajendra Pd. Yadav vs. Prem Lata, 1996 (1) RLR 8 . 4. I have considered the contention advanced by Counsel for petitioner and perused the finding recorded by the trial Court. From the material on record, it remains undisputed that the notice for 10.09.2004 was served but she did not appear, for which the reason has come on record in her application that she was not well and her brother had also expired during that period - in support of which she produced medical certificates, which certainly shows her bona fide and justification of her absence on 10.09.2004 fixed in trial Court and merely non-appearance on one date of hearing fixed by trial Court for which reasonable and bona fide justification has been made, passing ex parte decree against her, in no manner can be said to be justified. I am satisfied with the averments made in her application and sufficient reason has been assigned by trial Court for revoking ex parte decree, which are duly supported by material on record and does not call for interference in the revisional jurisdiction of this Court. 5. So far as the contention made with respect to recourse to Section 15 of the Act is concerned, suffice it to say that the appeal is provided from the decree or order under Section 28 of the Act and Sub-section (4) provides period of ninety days for filing appeal under Section 28(1), which has been substituted vide Act 50 of 2003, w.e.f. 212.2003. Undisputably instant application was filed by respondent (wife) before the trial Court under Order 9 Rule 13, CPC within period of ninety days and was rightly filed by invoking Section 21 of the Act. In my opinion, petitioner is not entitled to seek any justification or excuse by taking recourse under Section 15 of the Act. Judgment s on which petitioner placed reliance, are not applicable in fact situation of instant case and are clearly distinguishable on facts. 5.Consequently, I do not find any merit in this petition, which is hereby dismissed in limine.