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2017 DIGILAW 400 (JHR)

Garima Chokhani v. Sajeev Chokhani

2017-02-27

H.C.MISHRA, S.N.PATHAK

body2017
JUDGMENT : Heard learned counsel for the appellant and the respondent, who has appeared in person. It may be stated that we were informed that the proceeding of mediation between the parties was going one in a matter, pending between the parties in the Court below. We awaited the result of the mediation and the report of the Mediator has since been received, which shows that the efforts of mediation between the parties have failed. 2. The appellant wife is aggrieved by the ex-parte Judgment and Decree dated 21st of June, 2016, in Original Suit (M.T.S.) No. 518 of 2015, passed by the learned Principal Judge, Family Court, Ranchi, whereby in an ex-parte proceeding, the suit, filed by the petitioner respondent in the Court below for dissolution of the marriage between the parties by a decree of divorce, under Section 13 of the Hindu Marriage Act was decreed in part, by an ex-parte decree of judicial separation. 3. Some facts need to be stated from the Lower Court Record. The suit was filed on 26.11.2015 and the same was admitted on 27.11.2015 and notice was ordered to issue. On 8.2.2016, the service of notice upon the appellant wife was found to be sufficient and the matter was fixed for 5.3.2016, as the appellant had not appeared in the Court below. On 5.3.2016 the matter was fixed ex-parte, as the appellant did not appear in the Court below. Thereafter on 2.6.2016, two witnesses were examined on behalf of the petitioner respondent in the Court below and the case was fixed for arguments on 20.6.2016. However, there is no order of 20.6.2016 on record, and on 21.6.2016, it is stated that the case was fixed for Judgment and the Judgment was delivered. Thus, it is apparent from the Lower Court Record that there is no order fixing the case for Judgment. 4. The Lower Court Record shows that on 21.6.2016 itself, an application was filed by the appellant in the Court below, stating that she had learnt about this case, as her husband, on the previous day, had subjected her to cruelty, asking her to leave the house stating that there shall a divorce on the next day. 4. The Lower Court Record shows that on 21.6.2016 itself, an application was filed by the appellant in the Court below, stating that she had learnt about this case, as her husband, on the previous day, had subjected her to cruelty, asking her to leave the house stating that there shall a divorce on the next day. Thus, upon coming to know about the case, she rushed and filed the application in the Court below, stating that she was willing to contest the case, and as such, she may be given an opportunity for the same. Though, the application, filed by the appellant in the Court below is available in the Lower Court Record, but there is no mention of his application in the entire order-sheet. 5. Learned counsel for the appellant has submitted that soon upon coming to know about the filing of the case, the appellant rushed to the Court on 21.6.2016 and filed the application for allowing her to contest the case, but ignoring the application of the appellant, the Court below passed the Judgment on 21.6.2016 in a hot haste. Learned counsel has, accordingly, submitted that on this score alone, the Judgment and Decree, passed by the learned Court below cannot be sustained in the eyes of law. 6. The respondent has submitted that the appellant wife had due notice of the suit, filed in the Court below, but she never appeared in the Court below. It is submitted that she was only watching the proceedings of the Court from the outside the Court room and when she found that the Judgment was going to be delivered, she filed the application in the Court below. The respondent has admitted before us that by the time, when the application was filed, the Judgment had not been typed or signed by the Presiding Officer. The respondent however, submitted that in view of the fact that the appellant had full knowledge of the case, and there is no illegality in the impugned Judgment and Decree. 7. Having heard counsel for the appellant and the respondent in person, we are of the considered view that the Court below has proceeded in the matter in a hot haste. The record itself shows that on 2.6.2016, both the witnesses of the petitioner respondent were examined and the case was fixed for arguments on 20.6.2016. 7. Having heard counsel for the appellant and the respondent in person, we are of the considered view that the Court below has proceeded in the matter in a hot haste. The record itself shows that on 2.6.2016, both the witnesses of the petitioner respondent were examined and the case was fixed for arguments on 20.6.2016. What happened in the Court on 20.6.2016 is not on record, as there is no order-sheet of 20.6.2016. Thereafter there is the order-sheet of 21.6.2016, in which, only it is stated that the case was fixed for Judgment and the Judgment was delivered. As stated earlier, the Lower Court Record shows that the case was never fixed for Judgment, rather on 21.6.2016, the Judgment was passed by the Court below, stating that it was fixed for Judgment on that date. The fact, however, remains that on 21.6.2016 itself, the appellant appeared in the Court below and filed the application stating that she had learnt about the case only the previous day and she intended to contest the case. 8. In that view of the matter, the Court below ought to have given the opportunity to the appellant for contesting the case, even though the case might have been fixed for Judgment. As stated above, we have been informed by the respondent himself, that when the application was filed by the appellant in the Court below, the judgment had neither been typed nor been signed by the Presiding Officer of the Court. Indeed the Court below did not even thought proper to mention in the order-sheet that the such application was filed in the Court, whether prior or after delivering the Judgment 9. In that view of the matter, we are of the considered view that the impugned Judgment and Decree, passed by the Court below cannot be sustained in the eyes of law and the Court below ought to have given sufficient opportunity to the appellant herein, to contest the suit, particularly when she had appeared and prayed for the same. 10. In view of the aforementioned discussions, the impugned Judgment and Decree dated 21st of June, 2016, in Original Suit (M.T.S.) No. 518 of 2015, passed by the learned Principal Judge, Family Court, Ranchi, are hereby, set aside and the matter is remanded back to the Court below for deciding the suit afresh in accordance with law. 11. 10. In view of the aforementioned discussions, the impugned Judgment and Decree dated 21st of June, 2016, in Original Suit (M.T.S.) No. 518 of 2015, passed by the learned Principal Judge, Family Court, Ranchi, are hereby, set aside and the matter is remanded back to the Court below for deciding the suit afresh in accordance with law. 11. We fix the 20th of March, 2017 to be the date, on which, both the parties shall appear in the Court below, where after the matter shall proceed in accordance with law. 12. This appeal is, accordingly, allowed in the admission stage itself, with the directions as above. Let the Lower Court Record be sent back forthwith with a copy of this Judgment.