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Madhya Pradesh High Court · body

2019 DIGILAW 32 (MP)

Sheela Vishwakarma v. Deshraj Vishwakarma

2019-01-08

SUBODH ABHYANKAR

body2019
ORDER 1. Heard on admission. 2. This petition has been filed by the petitioner/non-applicant/wife under Article 227 of the Constitution of India against the order dated 6.12.2018 passed in HMA No. 52-A/2017 by the Principal Judge, Family Court, Chhattarpur, whereby the petitioner’s application for setting aside the exparte order filed under Order 9 rule 7 of CPC has been rejected. 3. In brief the facts of the case are that respondent-Deshraj Vishwakarma has filed an application for divorce under section 13 of the Hindu Marriage Act, 1955 in the Family Court at Chhattarpur. The petitioner/non-applicant, who is a resident of District Satna appeared before the Court on 16.7.2018 and also filed an application under section 13 of the Family Courts Act, 1984 seeking appointment of an Advocate on her behalf, which was allowed on 2.5.2017, but on 28.8.2018 when the matter was fixed for mediation report, the petitioner and her counsel could not mark their presence, hence the Court proceeded ex parte against the petitioner and on a subsequent date i.e. on 29.8.2018 an application under Order 9 rule 7 of CPC was filed by the petitioner for setting aside the ex parte order. When the matter came up for hearing on 5.12.2018 again neither the petitioner nor her counsel appeared, hence the case was fixed on 6.12.2018 for argument on the said application but on the said date neither the petitioner nor her counsel appeared, hence the petitioner’s application filed under Order 9 rule 7 of CPC has been dismissed for want of prosecution vide order dated 6.12.2018 (Annexure P-3), which is under challenge. 4. Learned counsel for the petitioner has submitted that the petitioner, who happens to be the wife of the respondent was indisposed and therefore she did not mark her presence before the Family Court at Chhattarpur. It is further submitted that the petitioner is a resident of District Satna whereas the case is pending at Chhattarpur and also she was deprived of giving her appearance on the date fixed by the Court. Under these circumstances, it is prayed that an opportunity may be granted to the petitionerto contest the matter. 5. It is further submitted that the petitioner is a resident of District Satna whereas the case is pending at Chhattarpur and also she was deprived of giving her appearance on the date fixed by the Court. Under these circumstances, it is prayed that an opportunity may be granted to the petitionerto contest the matter. 5. After hearing the learned counsel for the petitioner and perusing the documents filed along with the petition, this Court finds that the petitioner neither pleaded in the petition nor filed any document to show as to why her counsel was not able to mark his presence on the date when the matter was fixed. However, since the petitioner happens to be the wife of the respondent and is facing matrimonial dispute at Chhattarpur, which is 150kms away from District Satna, in the considered opinion of this Court, one opportunity may be granted to the petitioner to contest her case. 6. Accordingly, the petition stands allowed and the impugned order dated 6.12.2018 (Annexure P-3) passed in HMA No. 52-A/2017 by the Principal Judge, Family Court, Chhattarpur is hereby set aside and the petitioner’s application filed under Order 9 rule 7 of CPC is allowed subject to cost of Rs. 500/-. 7. The petitioner/non-applicant is directed to deposit the aforesaid cost before the Family Court, Chhattarpur within 15 days from the date of receipt of certified copy of this order, failing which this order shall not be given effect to.