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2015 DIGILAW 874 (MP)

Ajai Chaurasia v. Madhu Chaurasia

2015-08-20

B.D.RATHI, U.C.MAHESHWARI

body2015
ORDER : 1. He is heard on the question of admission. On behalf of appellant/plaintiff/applicant/husband of the respondent, this appeal is preferred under Section 19 of the Family Courts Act, 1984, being aggrieved by the order dated 20.07.2015 passed by the Principal Judge of the Family Court, Datia in MJC No. 1/2015 whereby allowing the application of the respondent filed under Section 5 of the Limitation Act for condoning the delay in filing the proceeding under Order IX Rule 13 of the Code of Civil Procedure, for setting aside the ex parte judgment and decree of divorce dated 24.09.2015 passed by the above mentioned court in HMA Case No. 55/2013 filed by the appellant herein, the entire delay of near about one year in filing such proceeding of Order IX Rule 13 of the Code of Civil Procedure has been condoned. 2. Appellant's counsel after taking us through the appeal memo, the papers placed on the record along with impugned order argued that after filing petition under section 13 of the Hindu Marriage Act by the appellant herein in the aforesaid family court, the same was registered as HMA Case No. 55/2013 and its notice was sent to the respondent through registered post with A.D. After service of the same, no-one appeared on her behalf but written statement was sent through post on which such Hindu Marriage Case was proceeded ex parte against the respondent and vide judgment dated 24.09.2013 the same was decreed ex parte in favour of the appellant herein and a divorce decree was passed between the parties. Subsequent to that after a long delay i.e. near about one year without annexing any application of Section 5 of the Limitation Act the impugned proceeding under Order IX Rule 13 of CPC was filed on behalf of the respondent in which by filing reply besides other objections, the objection relating to the limitation was also taken on behalf of the appellant stating that in the lack of any application of Section 5 of the Limitation Act showing the sufficient cause or proper explanation of filing the proceedings under Order IX Rule 13 of CPC at belated stage, such proceedings being barred by time could not be entertained to examine the merits. Subsequent to filing such reply the application of Section 5 of the Limitation Act was filed on behalf of the respondent at very belated stage. Subsequent to filing such reply the application of Section 5 of the Limitation Act was filed on behalf of the respondent at very belated stage. The averments of such application through reply were also disputed on behalf of the appellant stating that whatever cause has been stated in the application for condoning the alleged delay the same could not be treated to be sufficient cause as per requirement of Section 5 of the Limitation Act and the prayer to dismiss the aforesaid application was made. 3. In further argument, he said that in the available circumstances, on consideration, such application ought to have been dismissed by the trial court but contrary to that without considering the objection of the appellant that the respondent has not properly explained the entire delay in filing the proceedings of Order IX Rule 13 of CPC with proper approach the trial court has allowed such application in a very casual manner and condoned the alleged delay in filing such proceeding. He further said that when the negligence on the part of the respondent in the original case was apparent as inspite service of the notice she did not appear and the impugned proceeding of Order IX Rule 13 of CPC was also filed initially without filing an application under Section 5 of the Limitation Act and even after filing of such application no sufficient cause was established on behalf of the respondent inspite that said application was allowed under wrong premises. With these submissions, he said that the impugned order being not sustainable under the law deserves to be set aside by dismissing the impugned application of the respondent and prayed for the same by admitting and allowing this appeal. 4. Having heard the counsel, keeping in view the arguments advanced, we have carefully gone through the appeal memo as well as papers placed on the record along with the impugned order. It is undisputed fact that the present appellant had got married long before with the respondent and thereafter some matrimonial dispute had taken place between them. Pursuant to that as per available record, the appellant herein filed the aforesaid petition for divorce in which as alleged notice of the petition was served on the respondent and she did not appear. Consequently, the same was proceeded ex parte and the ex parte decree of divorce was passed in favour of the appellant. Pursuant to that as per available record, the appellant herein filed the aforesaid petition for divorce in which as alleged notice of the petition was served on the respondent and she did not appear. Consequently, the same was proceeded ex parte and the ex parte decree of divorce was passed in favour of the appellant. On the other hand according to case of the respondent as reflected from the available papers she did not receive the notice of aforesaid Hindu Marriage Case, resultantly, for want of knowledge she could not appear in that matter. She came to know about the aforesaid ex parte decree only on 06.05.2014 when her alleged beating was carried out by the present appellant in which she sustained injuries with fracture and during such incident appellant apprised her about the aforesaid decree of divorce. In such premises, she could not approach to the Court for setting aside the ex parte decree earlier within time. After coming to know about said decree on the aforesaid date, after getting well treatment she applied to obtain the certified copy of the ex parte judgment and decree dated 08.07.2014 which was given by the copying section of the Family Court to her on 11.07.2014 and then she could get all necessary facts and information of the ex parte decree, and thereafter on her behalf the aforesaid proceeding under Order IX Rule 13 of CPC for setting aside the ex parte decree of divorce was filed and subsequently the impugned application for condoning the delay by explaining the cause was filed. 5. True it is that after expiry of the period provided to file any admissible and permissible proceedings and such other proceedings are not followed then a valuable right relating to the question of limitation is accrued in favour of the other/adverse party and such right could not be interfered lightly. 5. True it is that after expiry of the period provided to file any admissible and permissible proceedings and such other proceedings are not followed then a valuable right relating to the question of limitation is accrued in favour of the other/adverse party and such right could not be interfered lightly. But as per settled proposition while dealing with the application of Section 5 of the Limitation Act the court is duty bound to take into consideration of the stake of litigation as laid down by the Apex Court in the matter of M.K. Prasad v. P. Arumugam reported in (2001) 6 SCC 176 in which while dealing with the application under section 5 of the Limitation Act in the matter of proceedings arising out of the case of Order 9 Rule 13 CPC, the Apex Court has held as under:-- "In construing Section 5 of the Limitation Act, the court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The court has a discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigating him as an irresponsible litigant. He should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. The inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs." (Placitinum) 6. We are of the considered view that in matrimonial dispute, justice should not be lost on technical ground of limitation. The inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs." (Placitinum) 6. We are of the considered view that in matrimonial dispute, justice should not be lost on technical ground of limitation. In the case at hand it is apparent that before passing the ex parte decree of divorce against the respondent she could not get opportunity to defend such matter and such question being under dispute is to be answered by the trial court on holding the trial of impugned proceedings of Order IX Rule 13 CPC and by condoning the delay if the impugned application under Order IX Rule 13 of CPC was not entertained then in that circumstance the life of the respondent may be spoiled/jeopardized forever without getting any opportunity of hearing in the impugned proceeding and subject to outcome of the same on arising occasion the opportunity of hearing in original Hindu Marriage Case. In such premises also, the impugned order does not require any interference at this stage. 7. Apart the aforesaid, the impugned order being interlocutory order passed by the family court under its vested discretionary jurisdiction is not made appealable under Section 19 of the Family Courts Act. The impugned order being passed on the application under Section 5 of the Limitation Act is an interlocutory order and the same could not be interfered in the appellate jurisdiction of this court. 8. In the available circumstances, it is observed that any finding or observation given by this Court in this order or in the order impugned of the trial court shall not come in the way of either of the parties to prosecute and defend the impugned proceedings of Order IX Rule 13 of CPC. The Family Court shall be at liberty to decide such proceedings on merits in accordance with the procedure without influencing from any observation or the finding given by this Court or the Family Court in the order impugned on merits of the matter. Resultantly, appeal stands dismissed at the stage of motion hearing. There shall be no order as to the costs.