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2017 DIGILAW 1067 (JK)

Harjeet Singh v. Taranjeet Kour

2017-12-18

ALOK ARADHE

body2017
JUDGMENT : Revision is admitted for hearing. With consent of the learned counsel for the parties, the matter is heard finally. 2. In this revision, the petitioner has assailed the validity of the order dated 12.08.2016 passed by the Trial Court by which application preferred by the respondent under Order 9 Rule 13 of the CPC has been allowed. 3. Facts leading to filing of this revision briefly stated are that the petitioner filed a petition under Section 13 of the J and K Hindu Marriage Act seeking dissolution of marriage. Thereupon, the respondent filed an application before this Court for transfer of the aforesaid proceeding to Samba. This court with the consent of the parties transferred the proceeding to the Court of Principal District Judge, Jammu by an order dated 11.10.2011. The aforesaid order was passed in the presence of the counsel for the parties and the parties were directed to appear before the Principal District Judge, Jammu on 20.10.2011. The petition was thereafter assigned by the Principal District Judge, Jammu to the Matrimonial Court at Jammu. The respondent was proceeded ex parte on 09.07.2012 and eventually on 24.12.2012, an ex parte decree was passed. The petitioner submitted an intimation to the army authorities about the dissolution of his marriage. The army authorities by an communication dated 15.07.2014 informed the respondent about the decree of dissolution of marriage. Thereafter, the respondent filed an application for extension of time for filing the application for setting aside the ex parte decree belatedly. The trial Court vide impugned order has allowed the application. 4. Learned counsel for the petitioner submitted that the Trial Court ought to have appreciated that order was passed in the presence of both the parties and both the parties were directed to remain present before the Principal District Judge, Jammu on 20.10.2011. It is further submitted that a communication was sent by the army authorities on 15.07.2014, however, the respondent did not take any action for a period of one year and after a period of one year filed an application on 23.07.2015 along with application seeking extension of time for filing the application belatedly. It is further submitted that petitioner was not given any opportunity either to file reply or to adduce any evidence in the proceeding under Order 9 Rule 13 of the CPC. It is further submitted that petitioner was not given any opportunity either to file reply or to adduce any evidence in the proceeding under Order 9 Rule 13 of the CPC. It is further submitted that the petitioner is already married and his wife is a necessary party to the lis. In support of aforesaid submission reference has been made to decision of this Court in the case of Kiran Devi v. Kartar Chand and anr, 1995 KLJ 248 and decision of the Supreme Court in the case of Parimal V. Veena, AIR 2011 SC 1150 . 5. On the other hand, learned counsel for the respondent has supported the order passed by the Trial Court and has submitted that application seeking condonation of delay as well as proceeding under Order 9 Rule 13 were clubbed and the evidence was recorded jointly in both the proceedings. In support of his submissions, reference has been made to the decisions of the this Court in the case of Manjeet Singh v. Manjeet Kour, 2001 SLJ 439 and in the case of Darshana Devi. V. Bodh Raj and anr, 2014 (2) JKJ 585 [HC]. 6. I have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, the application under Order 9 Rule 13 of the CPC for setting aside the ex parte decree was filed beyond the period of limitation. The respondent had, therefore, filed an application seeking extension of time for filing the application seeking extension of time for filing the application under Order 9 Rule 13. The Trial Court ought to have first decided the application under Order 9 Rule 13 and thereafter should have proceeded to decide the application under Order 9 Rule 13 of the CPC by recording the evidence separately. Severe prejudice has been caused to the petitioner as both the proceedings have been clubbed together and evidence has been recorded. It is the case of the petitioner that he has neither been given opportunity to file reply nor an opportunity to lead evidence in the main proceeding initiated by the respondent, that is, the proceeding under Order 9 Rule 13 of the CPC. The impugned order suffers from an error apparent on the face of the record as well as jurisdictional infirmity, which cannot be sustained in the eye of law. The same is, accordingly, quashed. The impugned order suffers from an error apparent on the face of the record as well as jurisdictional infirmity, which cannot be sustained in the eye of law. The same is, accordingly, quashed. The Trial Court is directed to first decide the issue of limitation. Thereafter, if necessary to decide the application under Order 9 Rule 13 of the CPC in accordance with law. The revision is, accordingly, disposed of.