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2009 DIGILAW 380 (UTT)

RAM AVTAAR MISHRA v. RACHNA

2009-07-22

B.S.VERMA, PRAFULLA C.PANT

body2009
Judgment This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against the order dated 16-05-2006, passed by Principal Judge, Family Court, Dehradun, in Reg. Misc. Case No. 131 of 2005, whereby said court has dismissed the application moved under Order 9, Rule 13 read with Section 151 of the Civil Procedure Code, 1908. 2. Heard learned counsel for the parties and perused the papers on record. 3. Brief facts giving rise to this appeal are that Suit No. 576 of 1997 was filed by Rachna (present respondent) against Ram Avtaar Mishra (present appellant) by moving a petition under Section 11 of Hindu Marriage Act, 1955, for annulment of marriage between them. She (present respondent) alleged in the suit that the appellant projecting himself as widower got married to her on 04-07-1997 according to Hindu Rites. (The respondent / wife was also a divorcee). According to the respondent, who filed the aforesaid suit, after marriage, she came to know that the appellant is not widower and has a wife named Shanti Mishra from whom he had five children. She alleged that a fraud was played on her by the appellant by projecting that he was a widower. Summons were issued by the trial court (Civil Judge (Senior Division), Dehradun), which were sufficiently served on him. Many dates were sought for filing the written statement by the appellant in said suit but the written statement was not filed. Ultimately, the suit proceeded ex parte and the same was decreed in favour of the plaintiff / respondent on 12-11-1999 by the trial court, whereby marriage dated 04-07-1997 between the parties was declared null and void. This fact is also on the record that the appellant himself had moved a Suit No.522 of 1997 before Civil Judge (Senior Division), Muzaffarnagar, seeking that the marriage dated 04-07-1997 between appellant and respondent be declared null and void. (Learned counsel for the appellant stated that said suit was got dismissed for non-prosecution). 4. From the perusal of the record it appears that the appellant did not move any application to get the ex parte decree dated 12-11-1999, passed by the trial court at Dehradun in Suit No. 576 of 1997 set aside under Order 9, Rule 13 of the Civil Procedure Code, 1908, for five years. 4. From the perusal of the record it appears that the appellant did not move any application to get the ex parte decree dated 12-11-1999, passed by the trial court at Dehradun in Suit No. 576 of 1997 set aside under Order 9, Rule 13 of the Civil Procedure Code, 1908, for five years. Only in the year 2005 an application was moved under Order 9, Rule 13 read with Section 151 of the Code for setting aside the ex parte decree passed by the trial court, as mentioned above. Since by then a Family Court had already been created in Dehradun, the said application appears to have been transferred to the Family Court, Dehradun, for its disposal. Learned Family Court, Dehradun, after hearing the parties dismissed the application under Order 9, Rule 13 of the Code and refused to condone the delay in filing said application holding that the ground for condonation of delay is not sufficient. Aggrieved by said impugned order dated 16.05.2006, passed in Reg. Misc. Case No. 131 of 2005 by Principal Judge, Family Court, Dehradun, this appeal is preferred by the appellant. 5. Learned counsel for the appellant admitted that Suit No. 576 of 1997 was filed by the respondent before the court at Dehradun and Suit No. 522 of 1997 was moved by the appellant before the court at Muzaffarnagar. In both the suits marriage between the parties was sought to be declared null and void. It is not disputed to the appellant that he was married to Shanti Devi from whom he had five children, and on 04.07.1997 he was not a widower. The only dispute between the parties is that the respondent (wife) says that fraud was played with her the appellant, while the appellant in his suit had alleged that fraud was played as against him by the respondent. Be that as the case may, the record makes it clear that the appellant had the knowledge of the proceedings of the Suit No. 576 of 1997, pending before the trial court at Dehradun. Be that as the case may, the record makes it clear that the appellant had the knowledge of the proceedings of the Suit No. 576 of 1997, pending before the trial court at Dehradun. Had it been a case of no service on the appellant, probably the Principal Judge, Family Court at Dehradun could have been a bit liberal in allowing the application under Section 5 of Limitation Act for entertaining the application moved under Order 9, Rule 13 of C.P.C., but in the present case the appellant had sought time again and again in the suit for opportunity to file the written statement before the trial court which clearly shows that he had knowledge of the proceedings of the suit after service of summons. In such circumstances, there was heavy burden on the appellant to show sufficient cause for a long delay of five years in moving application under Order 9, Rule 13 of C.P.C. We agree with trial court that the explanation given by the appellant that both the parties agreed to withdraw their suits at Muzaffarnagar and Dehradun and because of this he could not move an application under Order 9, Rule 13 of C.P.C., cannot be accepted as sufficient cause not to move an application under Order 9, Rule 13 of C.P.C. for five years. 6. Having gone through the record of the case and after considering the submissions of learned counsel for the parties, we concur with the view taken by the Principal Judge, Family Court, Dehradun, that the reason mentioned in the application for condonation of delay for condoning delay of five years in moving an application under Order 9, Rule 13 of C.P.C., in the present case is not sufficient and as such the applications under Section 5 Limitation Act and under Order 9, Rule 13 C.P.C. are rightly rejected. 7. For the reasons as discussed above, this appeal is liable to be dismissed. Therefore, without expressing any opinion as to the final merits of the criminal case pending between the parties, relating to offence punishable under Section 495 I.P.C., this appeal is dismissed. Costs easy.