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2018 DIGILAW 1041 (RAJ)

Anil Jhajhadiya v. Usha

2018-04-20

G.R MOOLCHANDANI, PRADEEP NANDRAJOG

body2018
JUDGMENT & ORDER : 1. The appellant has defaulted twice in filing process fee, notice and registered AD covers and the result is that till date notice in the appeal and Application No.2039/2017 in which it is prayed that delay in filing the appeal be condoned has not been issued to the respondent. 2. Lest it be said that a meritorious cause is being sacrificed on the alter of procedural law, we have considered the merits of the appeal concerning the impugned order dated 14.07.2017. 3. The impugned order shows that treating the appellant being served in the petition filed by the respondent seeking divorce on ground of cruelty the appellant was proceeded against ex-parte vide order dated 01.02.2017. The appellant filed an application under Order 9 Rule 7 of the Code of Civil Procedure praying for the order dated 01.02.2017 to be recalled. The application was filed on 19.04.2017. The application was adjourned for 03.05.2017. None appeared for the appellant on said date. The said application was accordingly dismissed. Thereafter the respondent led ex-parte evidence and the impugned order came to be finally passed on 14.07.2017. 4. In the appeal it is stated that appellant's application filed for setting aside of the order dated 01.02.2017 could not be prosecuted by the appellant due to peculiar circumstances. What were those peculiar circumstances? None have been pleaded. 5. In any case the remedy was to move an application before the learned Judge, Family Court showing good cause for not appearing on 03.05.2017 and praying for a recall of the said order dated 03.05.2017 and to restore appellant's application under Order 9 Rule 7 CPC concerning the order dated 01.02.2017. 6. It is settled law that concerning an ex-parte decree, in appeal only two contentions can be urged. The first is that the appellant could not be proceeded against ex-parte. The second is to show that on the evidence before the Court no decree could be passed. 7. No such contention has been urged in the appeal. 8. It is obviously a case where the appellant has been negligent in prosecuting his remedy before the learned Judge, Family Court and is defaulting even in the appeal by not filing the requisites and the result is that notice is not being issued to the respondent. 9. We dismiss the appeal for non prosecution.