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2008 DIGILAW 925 (AP)

Usha Rani v. Subramanyeswara Rao Voleti

2008-10-29

P.S.NARAYANA

body2008
Order: The parties in both the matters being common, being wife and husband, both the matters are being disposed of by a common order. 2. Civil Revision Petition No.2534 of 2008 is preferred as against the order, dated 16-11-2007, made in I.A. No.127 of 2007 in F.C.O.P.No.66 of 2006 on the file of the Family Court, Secunderabad. The self-same petitioner filed Tr.C.M.P. No.465 of 2007 praying for transfer of O.P.No.66 of 2006 pending on the file of the Family Court, Secunderabad to the Family Court at Vijayawada, Krishna District to be tried along with M.C. No.88 of 2007. 3. Sri J.Ch.Y. Narasimham, learned counsel representing the petitioner, would maintain that the petitioner-wife who is the respondent in O.P.No.66 of 2006 could not appear before the Court due to non-receipt of notice-summon and in such circumstances she was set ex-parte. He would also maintain that the learned Judge instead of giving an opportunity to file counter, having set aside the ex-parte order, without giving any further opportunity for filling counter and making such an order imposing a condition to cross-examine P.W.1 on the specified date cannot be sustained. Learned counsel also further explained under what circumstances the Tr.C.M.P. had been filed and would maintain that in the facts and circumstances, the Civil Revision Petition to be allowed and the Tr.C.M.P. also to be allowed. 4. On the contrary, Sri. N. Ashok Kumar, learned counsel representing the respondent-husband, would maintain that on a careful scrutiny of the dates and the time gap it is clear that there was sufficient opportunity to the petitioner-wife to file counter, but for the reasons best known she had not chosen to file counter and hence, complaining before this Court that no opportunity had been given, is not a sustainable contention. Further, the learned counsel had taken this Court through the counter-affidavit filed in Tr.C.M.P. No.465 of 2007 and would maintain that this had been that of only with a view to harass the husband and also to further delay the proceedings. Hence, the Tr.C.M.P. to be dismissed. 5. Heard the learned counsel on either side. 6. Learned Judge, FamilyCourt, Secunderabad, allowed I.A. No.126 of 2007 in F.C.O.P. No.66 of 2006 condoning the delay of 34 days in filing the application under Order 9 Rule 13 CPC on payment of costs of Rs.200/- and on 16-11-2007 since costs had been paid the application was allowed. 5. Heard the learned counsel on either side. 6. Learned Judge, FamilyCourt, Secunderabad, allowed I.A. No.126 of 2007 in F.C.O.P. No.66 of 2006 condoning the delay of 34 days in filing the application under Order 9 Rule 13 CPC on payment of costs of Rs.200/- and on 16-11-2007 since costs had been paid the application was allowed. In I.A. No.127 of 2007 in F.C.O.P.No.66 of 2006 on 16-11-2007 the following order was made: “As I.A. No.126 of 2007 filed under Section 5 of the Limitation Act is allowed this peition is also allowed subject to the condition of cross-examining P.W.1 if present on 04-12-2007 failing which, peition stands dismissed. Call on 04-12-2007”. 7. When an application for condonation of delay had been allowed subject to the payment of costs and when costs had been paid it is needless to say that the application to set aside the ex parte decree / ex parte order also to be allowed but the stage at which the application is being allowed also may have to be taken into consideration. Here is a case where the petitioner complained of non-service of notice and applications had been filed. When that being so, while allowing the application opportunity to be given to the petitioner-respondent in the F.C.O.P. to file counter. Such opportunity had not been given and straightaway condition of cross-examining P.w.1 on the specified date had been incorporated with a default clause. This approach adopted by the learned Judge cannot be sustained. Hence, the impugned order is set aside. Let the learned Judge give an opportunity to file counter and inasmuch as it is a matrimonial dispute after giving such opportunity let the learned Judge dispose of the matter as expeditiously as possible. 8. Tr.C.M.P. No.465 of 2007 is filed praying for transfer of O.P.No.66 of 2006 pending on the file of the Family Court, Secunderabad to the Family Court, Vijayawada to be tried along with M.C.No.88 of 2007 and pass such other suitable orders. 9. It is stated that the respondent is the husband of the petitioner and the respondent filed divorce O.P.No.66 of 2006 on the file of the Family Court, Secunderabad. Several other facts had been narrated relating to the non-service of notice and under what circumstances the substitute service had been taken. 9. It is stated that the respondent is the husband of the petitioner and the respondent filed divorce O.P.No.66 of 2006 on the file of the Family Court, Secunderabad. Several other facts had been narrated relating to the non-service of notice and under what circumstances the substitute service had been taken. Further, it is stated that no opportunity had been given to file counter and the statutory procedure of framing issues etc., also had not been followed. It is also stated that the petitioner has been residing in Vijayawada along with her parents and her father is in Government service and is at the verge of retirement and he is unable to accompany her to attend the Family Court at Secunderabad. It is also stated that she had filed maintenance petitioner in M.C. No.88 of 2007 on the file of the Family Court, Vijayawada and the respondent entered appearance and has been contesting the said case also. Several other further facts had been denied and it is stated that there are no grounds to transfer the divorce O.P. and further it is stated that there is life threat to the respondent-husband at Vijayawada. The fact that M.C.No.88 of 2007 is pending before the Family Court, Vijayawada is not in serious controversy. 10. In the light of the facts and circumstances, O.P.No.66 of 2006 pending on the file of the Family Court, secunderabad is hereby withdrawn and the same is transferred to the Family Court, Vijayawada to be tried along with M.C.No.88 of 2007. Accordingly, Tr.C.M.P.No.465 of 2007 is hereby ordered. Inasmuch as C.R.P. No.2534 of 2008 is being hereby allowed, it is needless to say that the Family Court, Vijayawada to give opportunity to the petitioner-wife to file counter and to further proceed with the matter in accordance with law as expeditiously as possible. 11. Accordingly, the Civil Revision Petitioner is hereby allowed, and Tr.C.M.P.No.465 of 2007 is hereby ordered. Parties do bear their own costs.