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2013 DIGILAW 493 (MP)

Tridev Chaturvedi v. Manjari @ Jooli Chaturvedi

2013-04-09

D.K.Paliwal, S.K.Gangele

body2013
JUDGMENT Paliwal, J. 1.This first appeal has been preferred under section 19(1) of the Family Courts Act, 1984 being aggrieved by the order dated 3.8.2011 passed by the Additional Principal Judge, Family Court, Gwalior, in MJC No.4/11, whereby ex-parte decree for divorce granted in HMA Case No.261-A/2009 has been set aside. 2. The brief facts giving rise to this appeal are that appellant- husband has filed a petition under sections 12 and 13 of the Hindu Marriage Act for declaring the marriage solemnized on 13.12.2006 to be void and in the alternative for divorce before the Additional District Judge, Datia. The respondent got the matter transferred to the Family Court, Gwalior. After submission of written statement, the learned Additional Principal Judge fixed the matter for appellant’s evidence on 13.9.2010, 12.10.2010, 19.11.2010, 26.11.2010 and 10.12.2010. On 10.12.2010 the appellant and his witnesses were present for cross-examination, but respondent and her counsel were not present, therefore, the learned Additional Principal Judge proceeded ex-parte against the respondent- wife and after hearing the arguments, fixed the case for judgment on 13.12.2010. The respondent appeared at 2.50 p.m. on 10.12.2010 and signed the order- sheet. On 13.12.2010, the judgment was pronounced and the petition of the appellant was allowed. After pronouncement of the judgment, an application under Order 9 Rule 7 CPC was submitted on behalf of the respondent- wife. The same was filed mentioning that judgment has already been passed. 3. The respondent- wife preferred an application under Order 9 Rule 13 CPC on the ground that the petition was preferred by the appellant- husband for granting divorce and the matter was fixed for 26.11.2010. The respondent- wife was not present on 26.11.2010 before the Court and her counsel has informed regarding the proceeding of the Court. On 10.12.2010 at about 12 p.m. respondent received a telephonic message that case is fixed today and was asked to attend the Court. There was no other male member in the residence of the respondent, therefore, respondent informed her brother Prashant and asked him to reach the Court. Prashant reached the Court at 12.45 p.m. and informed the Court that the counsel of the respondent will reach the Court after lunch. There was no other male member in the residence of the respondent, therefore, respondent informed her brother Prashant and asked him to reach the Court. Prashant reached the Court at 12.45 p.m. and informed the Court that the counsel of the respondent will reach the Court after lunch. The respondent- wife left her residence for the Court, but on account of the huge jam at Padav bridge, she could not reach the Court before 2.50 p.m. and before she reached the Court, the case was proceeded ex-parte against her. The order- sheet was signed by the respondent. When respondent appeared along with her counsel on 13.12.2010, she came to know about the fate of her case. Thereafter, she preferred an application under Order 9 Rule 7 read with section 151 CPC. The same was not considered as judgment has been passed. It was prayed that in view of the above circumstances, the ex-parte decree be set aside. 4. The appellant- husband opposed the prayer and submitted that the respondent- wife and her counsel deliberately avoided her presence. It is denied that respondent- wife received information on 10.12.2010 at 12 p.m. It is further denied that respondent- wife could not reach the Court because of traffic jam at Padav. It is submitted that respondent- wife has not satisfactorily explained her absence at the time of call. There is 13 days’ delay in filing the application. It is prayed that application be dismissed. 5. The learned Additional Principal Judge after recording the evidence of the parties, held that respondent- wife was not aware that case has been fixed for 10.12.2010. After having been informed, the respondent has sent her brother and also herself left for the Court, but due to traffic jam, she could not reach the Court before 2.50 p.m. In such circumstances, there was a sufficient reason for her absence on 10.12.2010 before 2.50 p.m. The learned Additional Principal Judge has allowed the application holding that it is within limitation and set aside the ex-parte decree. The same has been challenged by the appellant by filing this first appeal. 6. It is submitted by Shri Santosh Agrawal, learned counsel for the appellant, that learned Additional Principal Judge, Family Court, has failed to appreciate the evidence in proper perspective and wrongly set aside the ex-parte decree. The same has been challenged by the appellant by filing this first appeal. 6. It is submitted by Shri Santosh Agrawal, learned counsel for the appellant, that learned Additional Principal Judge, Family Court, has failed to appreciate the evidence in proper perspective and wrongly set aside the ex-parte decree. Learned Additional Principal Judge has also failed to appreciate that there was no traffic jam at Padav on the relevant date. It is further submitted by learned counsel that respondent was having knowledge of dates of hearing of the matter, but she intentionally did not appear. It is further submitted that learned Additional Principal Judge has failed to appreciate that application under Order 9 Rule 13 CPC was barred by time. It is prayed that impugned order be set aside. 7. Shri Naval Gupta, learned counsel for the respondent, has submitted that respondent has succeeded in proving that there was sufficient reason for not reaching the Court on 10.12.2010 before 2.50 p.m. The counsel for the respondent was busy in Lok Adalat and that is why the counsel could not appear. Learned Additional Principal Judge has rightly considered the material and has not committed any error in allowing the application. It is prayed that appeal be dismissed. 8. We have heard learned counsel for the parties at length and perused the record. 9. It is not disputed that appellant has preferred petition under sections 12 and 13 of the Hindu Marriage Act. The matter was fixed for recording the evidence on 10.12.2010. The respondent- wife and her counsel did not attend the Court in spite of repeated calls, therefore, the respondent- wife was proceeded ex-parte. It is also not disputed that the brother of the respondent- wife reached the Court at 12.45 p.m. and due to absence of respondent and her counsel, the case was proceeded ex-parte at 2.45 p.m. It is also not disputed that respondent- wife reached the Court on 10.12.10 at 2.50 p.m. 10. We have closely scrutinized the evidence led by the parties. Manjari Chaturvedi (AW-1) deposed that on 10.12.2010 she received a telephone of her counsel that he is busy, therefore, she should reach the Court. At that time, she was alone in her house. She telephoned her brother Prashant Chaturvedi and asked him to reach the Court. We have closely scrutinized the evidence led by the parties. Manjari Chaturvedi (AW-1) deposed that on 10.12.2010 she received a telephone of her counsel that he is busy, therefore, she should reach the Court. At that time, she was alone in her house. She telephoned her brother Prashant Chaturvedi and asked him to reach the Court. She further stated that her brother telephoned at 1 p.m. that the case will be called again at 2.30 p.m. Thereafter, she along with her mother left her residence for Court on a auto rickshaw, but on account of traffic jam at Padav, she reached the Court at 2.50 p.m. and the Presiding Officer asked her to sign the order-sheet and told that case was fixed for 13.12.2010. When she attended the Court on 13.12.2010, she was informed that the judgment has been delivered. Thereafter, her counsel has filed the application. Prashant Chaturvedi (AW-2) has corroborated the statement of Manjari Chaturvedi. 11. Tridev (NAW-1) deposed that on 10.12.2010 there was no traffic jam at Padav area. Further Lok Adalat was not scheduled on 10.12.2010, therefore, there was no question for the counsel of Manjari to be busy in Lok Adalat. He further deposed that on 26.11.2010 arguments were heard on the interlocutory applications and the case was fixed for 10.12.2010 for recording the evidence. He reached the Court along with his witnesses. When call was made and no one appeared on behalf of his wife, then at about 2.45 p.m. ex-parte order was passed. He further stated that he has sought information from S.P., Gwalior, regarding the jam which took place as alleged by the respondent on 10.12.2010 and he was informed that there was no jam at Padav bridge on 10.12.2010. He has filed the documents, Ex.D/1 to Ex.D/5. 12. From the perusal of the order- sheet dated 10.12.2010, it appears that presence of brother of the respondent has been mentioned. It is further mentioned that Prashant Chaturvedi informed that his counsel is busy in Lok Adalat and he will come after lunch. The case was fixed after 2.30 p.m. and at 2.45 p.m. the respondent was proceeded ex-parte. It is also mentioned that respondent- Smt. Manjari appeared at 2.50 p.m. and her signatures were obtained. 13. Manjari (AW-1) and Prashant Chaturvedi (AW-2) remained firm in their cross-examination. Nothing has been come out from their cross-examination to doubt their testimony. The case was fixed after 2.30 p.m. and at 2.45 p.m. the respondent was proceeded ex-parte. It is also mentioned that respondent- Smt. Manjari appeared at 2.50 p.m. and her signatures were obtained. 13. Manjari (AW-1) and Prashant Chaturvedi (AW-2) remained firm in their cross-examination. Nothing has been come out from their cross-examination to doubt their testimony. Their testimony is fully corroborated by the order-sheets. Therefore, we find no reason to disbelieve the testimony of Manjari (AW-1) and Prashant Chaturvedi (AW-2). In view of the evidence, the submission of learned counsel for the appellant that learned Additional Principal Judge has not appreciated the evidence in its proper perspective has no substance. 14. The next submission of learned counsel for the appellant that the respondent intentionally did not appear before the Court and that Lok Adalat was not scheduled on 10.12.2010 is also devoid of any merits because the respondent- wife after receiving the telephonic message from her counsel, sent her brother to reach the Court and further the respondent herself reached the Court at 2.50 p.m. Had the respondent really intended to delay the matter, the respondent could not have sent her brother and also herself attended the Court on the same day at 2.50 p.m. As regards absence of the counsel of the respondent, Manjari (AW-1) and Prashant Chaturvedi (AW-2) have categorically stated that the counsel told that he is busy in Lok Adalat, therefore, absence of counsel of the respondent also appears to be justified. 15. The next contention of learned counsel for the appellant is that there is a delay of 13 days in filing the application under Order 9 Rule 13 CPC. We have perused the record. It transpires that this issue has already been decided by the learned Additional Principal Judge vide order dated 19.5.11. From the perusal of the certified copy of the judgment and decree passed in HMA No.261-A/09, it appears that 13 days has been consumed in obtaining certified copy, therefore, it cannot be said that the application under Order 9 Rule 13 CPC is barred by time. 16. In view of the foregoing discussion, we are of the considered opinion that the learned Additional Principal Judge, Family Court, has not committed any illegality in setting aside the ex-parte decree passed in HMA No.261-A/2009. This appeal is devoid of any merits and deserves to be dismissed. 16. In view of the foregoing discussion, we are of the considered opinion that the learned Additional Principal Judge, Family Court, has not committed any illegality in setting aside the ex-parte decree passed in HMA No.261-A/2009. This appeal is devoid of any merits and deserves to be dismissed. Consequently, we affirm the impugned order and dismissed this appeal. Parties are directed to bear their own costs.