Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 221 (MP)

Sangeeta Dubey v. Rakesh Dubey

2016-03-11

VANDANA KASREKAR

body2016
ORDER 1. The appellant has filed the present appeal challenging the order dated 23.2.2010 passed by 1st Additional Principal Judge, Family Court, Jabalpur in MJC No.16/2009. 2. The plaintiff/respondent had filed an application under section 13(1)(a) of the Hindu Marriage Act, 1955 against the appellant/defendant for divorce. 3. The trial Court proceeded ex parte against appellant and passed ex parte judgment and decree dated 6.9.2006 thereby decreeing the suit of divorce filed by the respondent/plaintiff. The appellant after coming to know about the ex parte judgment and decree, had moved an application on 13.10.2006 for setting aside the ex parte judgment and decree. 4. The respondent has filed reply to the said application. However, the trial Court after by-party hearing rejected the said application by an order dated 23.2.2010. Being aggrieved by that order, the appellant has filed the present appeal. 5. Learned counsel for the appellant has submitted that there were sufficient cause for not appearing before the trial Court when the case was called for hearing. He has further submitted that at the relevant time, the appellant was pregnant and was unable to attend the Court in August, 2006. The appellant went to Bangalore at her brother's residence and her counsel did not inform her about the dates and, therefore, she could not attend the Court when the case was called for hearing and the matter was proceeded ex parte against her. Learned counsel for the appellant has placed reliance upon the judgment passed by the apex Court in the case of G. P. Shrivastava v. R.K.Raizada and others, reported in (2000) 3 SCC 54 . 6. In spite of service of notice, nobody appeared on behalf of the respondent. 7. I have heard learned counsel for the appellant and perused the record. From perusal of the record, I found that the trial Court has committed an error in proceeding ex parte against the appellant. From perusal of the record, it appears that the appellant was pregnant at the relevant time and she went to Bangalore at her brother's residence and, therefore, she could not appear in the Court and the matter was proceeded ex parte. 8. The apex Court in the case of G. P. Srivastava (supra), in para 7 has held as under : “7. 8. The apex Court in the case of G. P. Srivastava (supra), in para 7 has held as under : “7. Under Order 9 rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The 'sufficient cause' for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause' is made out for non appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” 9. Thus, as per the aforesaid judgment, even when the defendant is found to be negligent and other side may be compensated by cost, the decree may be set aside on the appropriate terms and conditions. 10. Thus, in the light of the aforesaid judgment passed by the apex Court, the appeal is allowed. Thus, as per the aforesaid judgment, even when the defendant is found to be negligent and other side may be compensated by cost, the decree may be set aside on the appropriate terms and conditions. 10. Thus, in the light of the aforesaid judgment passed by the apex Court, the appeal is allowed. The impugned judgment and decree passed by the trial Court is hereby set aside on a condition that the appellant will pay cost of Rs.5,000/-. The trial Court is directed to proceed further in the case after giving due opportunity of hearing to both the parties.