Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1087 (RAJ)

Manbhar Devi W/o Shri Satya Narain Sharma v. Satya Narain Sharma S/o Shri Raghunath Sharma

2017-04-26

AJAY RASTOGI, DINESH CHANDRA SOMANI

body2017
ORDER : 1. The instant misc. appeal has been filed u/Sec.19 of the Family Courts Act, 1984 assailing the ex-parte judgment and decree dated 30.06.2007 and also the order dated 10.03.2008 passed by the ld. Family Court, Ajmer on the application filed by the appellant-wife under Order 9, Rule 13 CPC for setting aside ex-parte decree dated 30.06.2007. 2. The appeal was admitted and notices were issued by this court on 11.12.2008 and operation and effect of the ex-parte decree dated 30.06.2007 was kept in abeyance. 3. As per office report dated 26.06.2014 notices on the sole respondent are duly served but no one has put in appearance on behalf of the respondent-husband despite service. 4. We have heard counsel for the appellant-wife and perused the record of the case with his assistance. 5. The brief facts of the case, which may be relevant for the present purpose, are that the marriage of the appellant-wife was solemnized with the respondent according to the Hindu rites and customs on 07.05.1981 and from this wedlock a male child was born and on the date of filing of the matrimonial application in 2005, he was 22 years of age and is presently residing with the appellant-wife. 7. The respondent-husband filed a fresh matrimonial application on 22.06.2005 and after service of notice, the appellant-wife appeared in person before the ld. Family Court, Ajmer on 10.01.2006 and ex-parte proceedings were initiated against her on 11.09.2006 and after recording statement of the respondent-husband (AW-1) and Avtar Singh (AW-2), ex-parte decree of divorce was granted to him vide judgment dated 30.06.2007. 8. It reveals from the record that ex-parte decree of divorce dated 30.06.2007 was sent by post to the appellant-wife on 03.07.2007 and within six days of receipt of the ex-parte decree of divorce dated 30.06.2007, the appellant-wife on 09.07.2007 filed application under Order 9, Rule 13 CPC for setting aside the ex-parte decree dated 30.06.2007 which came to be rejected by the ld. Family Court, Ajmer vide order dated 10.03.2008 primarily for the resaon that after she put in appearance on 10.01.2006, on certain dates which were fixed by the ld. Family Court, Ajmer she failed to appear and ex-parte proceedings were initiated against her vide order dated 11.09.2006 and finally the ex-parte decree of divorce came to be passed on 30.06.2007. Family Court, Ajmer vide order dated 10.03.2008 primarily for the resaon that after she put in appearance on 10.01.2006, on certain dates which were fixed by the ld. Family Court, Ajmer she failed to appear and ex-parte proceedings were initiated against her vide order dated 11.09.2006 and finally the ex-parte decree of divorce came to be passed on 30.06.2007. According to the Presiding Officer, Family Court, Ajmer since no justification was tendered by the appellant-wife regarding her non-appearance on the dates fixed, after she put in appearance on 10.01.2006, there was no justified reason forthcoming for setting aside the ex-parte decree dated 30.06.2007, which was made to be a basis for rejection of her application under Order 9, Rule 13 CPC vide order dated 10.03.2008. 9. The specific allegation made by her in the application filed at her instance under Order 9, Rule 13 CPC was that after her appearance before the ld. Family Court, Ajmer on 10.01.2006, as she was a resident of Dausa, she was assured by a local counsel Smt.Seema Punjabi that she will move a transfer application before the High Court for transferring the proceedings either at Dausa or a place of her convenience and she is not required to appear before the ld. Family Court, Ajmer and it was very inconvenient for the appellant-wife to appear before the ld. Family Court, Ajmer coming all the way from Dausa on the dates fixed but the lawyer engaged by her failed to file transfer application before the High Court and never informed her about the proceedings going on before the ld. Family Court, Ajmer and she remained completely in dark and was unaware of the ex-parte proceedings being initiated against her, in consequence whereof the ex-parte decree of divorce came to be passed by the ld. Family Court, Ajmer on 30.06.2007. 10. It has also been stated by her in the application that the local lawyer from Dausa misguided her and in 2008 itself she made a complaint to the Bar Council of Rajasthan against Smt. Seema Punjabi, Advocate, New Colony, Dausa and the complaint was registered on 02.04.2008 but the counsel is not aware of the action being taken by the Bar Council of Rajasthan against the lawyer against whom complaint has been made by the appellant-wife. 11. 11. Be that as it may, counsel has tried to persuade this court that the appellant-wife under bona fide belief remained under the impression that the lawyer will inform her about the further proceedings drawn by the ld. Family Court and what action has been taken by her in the pending proceedings before the ld. Family Court, Ajmer and because of the assurance extended by her counsel, she could not appear before the ld. Family Court, Ajmer but immediately after the service of ex-parte judgment and decree dated 30.6.2007 was dispatched to her on 03.07.2007 and within six days the application was filed by her under Order 9, Rule 13 CPC for setting aside the ex-parte decree dated 30.06.2007. 12. Counsel submits that indisputably on certain dates which were fixed before the ld. Family Court, Ajmer where the appellant-wife failed to appear but in the given facts and circumstances could not be considered to be a valid justification for rejecting her application and the reasons for which she was unable to appear before the Family Court, Ajmer which was specifically stated in her application under Order 9, Rule 13 CPC have not been considered by the ld. Family Court, Ajmer while rejecting her application under Order 9, Rule 13 CPC vide order dated 10.03.2008. 13. We find justification in the submission made by the counsel for the appellant and the litigant is not supposed to suffer because of the inaction of the lawyer who has assured her of taking action in the matter and the complaint made by the appellant-wife against such lawyer who is of dubious character before the Bar Council of Rajasthan way back in 2008 certainly indicates about the action being taken against the lawyer who failed to provide reasonable assistance to her and for such inaction at least the litigant is not supposed to suffer more so in the matrimonial matters where their personal relations are to be examined within four corners of law and cannot be treated as an ordinary litigation and personal differences between spouse has to be examined in different prospective while examining the matter even at the stage of application filed under Order 9, Rule 13 CPC. 14. 14. Having heard counsel for the appellant-wife and after going through the record of the case, in our considered view, the order dated 10.03.2008 rejecting application filed under Order 9, Rule 13 CPC and so also the ex-parte judgment and decree dated 30.06.2007 deserves to be quash and aside. 15. Accordingly, the instant misc. appeal succeeds and is hereby allowed. The ex-parte judgment and decree dated 30.06.2007 and so also the order passed by the ld. Family Court on her application under Order 9, Rule 13 CPC dated 10.03.2008 are hereby quashed and set aside. The Matrimonial Misc. Application No.275/2005 [Satyanarayn Sharma v. Smt. Manbhar Devi] filed before the ld. Family Court, Ajmer is restored to is original number and it is expected from the Presiding Officer to expedite the matter and the appellant may record her presence before the ld. Family Court, Ajmer on 12.07.2017. Let copy of this order be sent of the ld. Family Court, Ajmer for necessary compliance.