ORDER : 1. The present petition under Article 227 of the Constitution of India is filed for the purpose of challenging the legality and validity of the order dated 12.02.2019 passed in Civil Misc. Application No. 106 of 2018 filed in Family Suit No. 1665 of 2015. 2. The case of the petitioner is that the parties to the petition are estranged matrimonial relations. The petitioner is the husband whereas the respondent is the wife and out of wedlock one child is born named as Vihaan Binakia who is at present under the custody of the petitioner, pursuant to the orders of the court. The petitioner resides in India with Vihaan, whereas the respondent – wife resides in California, USA. On account of such estranged relationship, the petitioner was constrained to file Family Suit No. 1665 of 2015 on 18.09.2015 for seeking decree of divorce under the provisions of Section 13(1) of the Hindu Marriage Act, 1955. The petitioner also filed another suit under Section 7(1) (g) of the Family Courts Act, 1984 being Family Suit No. 1546 of 2015, for retaining the custody of Vihaan, before the Family Court, Ahmedabad on 28.08.2015 in an Exhibit-5 application. Ultimately, the court issued notice and refused to grant ex-parte ad-interim injunction and being aggrieved by the same, the petitioner had to file Special Civil Application No. 14299 of 2015, wherein by virtue of order dated 03.09.2015, the court was pleased to direct the parties to maintain status-quo as regards the custody of Vihaan who is undisputedly with the petitioner. By passing further order on 11.09.2015, Special Civil Application came to be disposed of with a direction to complete the hearing of the interlocutory application Exhibit-5 within a period of four weeks and continued the interim relief till the Family Suit is decided and this was specifically keeping in view the welfare of the child as indicated in para 17 of the order. 2.1. It is further the case of the petitioner that in the meantime, the respondent – wife approached the County Court in Santa Clara, California, USA and obtained an ex-parte order on 16.09.2015 for temporary custody of Vihaan by suppressing all details related to the litigation which went on in Indian courts. 2.1. It is further the case of the petitioner that in the meantime, the respondent – wife approached the County Court in Santa Clara, California, USA and obtained an ex-parte order on 16.09.2015 for temporary custody of Vihaan by suppressing all details related to the litigation which went on in Indian courts. Simultaneously, the Family Court after hearing both the parties in Family Suit No. 1546 of 2015 passed an order on 21.10.2015, by which the custody of Vihaan was handed over to the petitioner. The respondent – wife as a result of which filed Special Leave Petition No. 29339 of 2015 before the Apex Court, which came to be rejected vide order dated 26.10.2015. Later on the order dated 21.10.2015 passed by the Family Court in Family Suit No. 1546 of 2015 was further challenged by the respondent – wife by filing Special Civil Application No. 20027 of 2015, which came to be disposed of on 08.03.2016 and the custody of Vihaan was handed over to the petitioner. Against the said order, the respondent – wife preferred Special Leave Petition No. 10045 of 2016 before the Apex Court which came to be disposed of on 22.08.2016. Subsequent to this, and during the passage of time, Family Suit No. 1546 of 2016 came to be decreed in favour of the petitioner by judgment and order dated 10.03.2017 and against that the respondent – wife filed First Appeal before this Court being First Appeal No. 2037 of 2017 and the same after hearing at length is reserved for judgment, as on filing of the present petition. The petitioner has asserted that in such a situation, one for engaging himself in the litigation parallel to the present one which was related to the custody of child and another with respect to divorce, as a result of this, the petitioner was unable to devote undivided attention to the divorce proceedings i.e. Family Suit No. 1665 of 2015 and since the custody issue was highly contested time and again right upto the Apex Court, the time has been consumed with full concentration on that issue and by that time, the petitioner was not informed by the AOR about the date of hearing and the petitioner was under the impression throughout that since the custody issue is going on the petitioner did not appear in the court, but to the shock and surprise found that vide order dated 14.06.2018, the said Family Suit No. 1665 of 2015 came to be dismissed, essentially on the ground that the parties fail to remain present to contest the suit, failed to lead any evidence, and thereby the Family Suit came to be disposed of by dis-entitling the petitioner to seek the decree for divorce. 2.2. It is this order, which has led the petitioner to file Civil Misc. Application No. 106 of 2018 under order 9 Rule 3 and 4 read with Order 17 of the Code of Civil Procedure before the Family Court for seeking restoration of Family Suit No. 1665 of 2015 which application came to be dismissed vide order dated 12.02.2019, relying upon the provisions contained under Order 17 of the Code of Civil Procedure and it is this order, which is made the subject matter of the present petition under Article 227 of the Constitution of India. 3. The Court issued notice in the present proceedings vide order dated 11.03.2019 and has adjourned the matter for giving appropriate opportunity to the respondent – wife time and again vide orders dated 16.04.019, 26.04.2019 and thereafter on 03.05.2019 as per the say of learned advocate for the petitioner, these orders have been communicated to the respondent wife through electronic mode as well. Further, in the present proceeding, the respondent – wife has chosen not to be represented though was actively represented by the learned advocate in the other proceedings which reached upto the Apex Court on the issue of child custody. Further, in the present proceeding, the respondent – wife has chosen not to be represented though was actively represented by the learned advocate in the other proceedings which reached upto the Apex Court on the issue of child custody. Hence, with this background, the present petition has come up for consideration before this court, which under the circumstance the court is constrained to hear and dispose of the petition ex-parte, since the respondent – wife has chosen not to co-operate with the proceedings. 4. Learned advocate Mr. Unmesh Shukla appearing for Mr. Aadit R. Sanjanwala learned advocate for the petitioner has vehemently contended that the court below has failed to exercise the jurisdiction vested in him and has exercised the jurisdiction so vested with material irregularity. It has further been contended that if the orders impugned are allowed to stand in the eye of law, the same would result into failure of justice and would set wrong precedent. It has been submitted that here is a case in which the court below ought not to have disposed of the entire suit without agitating the rights of the parties. It has been submitted that even both the side did not remain present and both the side were under the impression that since the custody issue is going on, this proceeding might be in abeyance. However, learned advocate Mr. Shukla has submitted that be that as it may, the petitioner remained under the bona fide impression as stated above that AOR has failed to inform the petitioner which has created such a situation and hence, requested that legitimate right of the petitioner to obtain divorce may not be frustrated for want of appearance. It has been further submitted that no fault in fact has occurred of the petitioner. In fact, the petitioner was quite vigilant to prosecute the matter and that can be seen from even the parallel proceedings which were going on about the custody of the child. Had the petitioner been under the proper knowledge about the sequence of dates, the petitioner would have definitely co-operate with the hearing. But since, the respondent was also at USA and the First Appeal decision is pending, the petitioner remained under such bona fide belief that ultimately, the dates if might have been informed by the AOR of the petitioner, this eventuality might not have occurred. But since, the respondent was also at USA and the First Appeal decision is pending, the petitioner remained under such bona fide belief that ultimately, the dates if might have been informed by the AOR of the petitioner, this eventuality might not have occurred. However, besides this, the learned advocate for the petitioner has submitted that the impugned order deserves to be set aside. 4.1. Learned advocate Mr. Shukla has further submitted that the learned Family Court has seriously committed error in passing the order by holding that it has got no power to recall the judgment and order, in fact the restoration powers are very much available with the court below by virtue of provisions contained under Order 9 Rule 4 of the Code of Civil Procedure and in the interest of justice ought to have restored the proceedings. The learned Family Court, has seriously erred in holding that the provisions contained under Order 9 Rule 3 and 4 of the Code of Civil Procedure are not applicable. Learned advocate Mr. Shukla has submitted that this material irregularity in exercising jurisdiction deserves to be corrected by setting aside the impugned order. 4.2. It has further been submitted that this dismissal of the suit would seriously prejudice the petitioner. As a result of this, in a larger interest of justice and to see that no irreversible situation be created, the order under challenge may kindly be set aside by consequently granting the relief as prayed for in the Civil Misc. Application No.106 of 2018. 5. Since the respondent – wife though communicated, has chosen not to appear, the court upon hearing the learned advocate for the petitioner has examined the grievance of the petitioner in the light of the circumstances which are projected before the Court. It appears that undisputedly the custody issue of child Vihaan had been time and again churned in a litigation one after the other right upto the Apex Court and that went on for a pretty long period as submitted by the learned advocate for the petitioner. It is further appearing that against the original judgment and decree dated 10.03.2017, substantive First Appeal No. 2037 of 2017 was contested by both the sides and the said appeal is pending for judgment and as such it appears that substantial time has taken place in the said proceedings. It is further appearing that against the original judgment and decree dated 10.03.2017, substantive First Appeal No. 2037 of 2017 was contested by both the sides and the said appeal is pending for judgment and as such it appears that substantial time has taken place in the said proceedings. No doubt, it was obligatory on the part of the litigant and was also the responsibility of the learned advocate to inform the litigant but in a situation like this, which has been projected it appears that some lapse has taken place by the petitioner about attending the court proceedings, but that lapse appears to have been properly explained by the petitioner and the said explanation is sufficient enough to grant the petitioner a fair chance of prosecuting the matter on merit instead of allowing the petitioner's right to be curtailed on account of technicality. It is the settled position of law propounded by a series of decisions that whenever any substantial justice is pitted against the technical consideration, substantial justice must be given predominance. Resultantly, here is a case in which if the order under challenge is allowed to stand in the eye of law, serious prejudice and injustice is likely to be caused to the petitioner. 5.1. Additionally, it is also reflecting from the record which it has also been recorded that even the respondent – wife has chosen not to appear or contest as she is residing in USA. So it is not the case in which only the petitioner is not co-operating with the adjudication. But that fault is not such gross which would frustrate the very proceedings initiated by the petitioner. Learned advocate appearing and representing in the court below has also not taken pain to appear before the court nor has informed the petitioner vigilantly and as such for some time the proceedings remained unattended. However, while passing the impugned order, the court below ought to have minutely examined powers under Order 9 of the Code of Civil Procedure. IT appears that substantially, the Court has not recalled the order on the premise that it is not open for the court to recall its own order. However, while passing the impugned order, the court below ought to have minutely examined powers under Order 9 of the Code of Civil Procedure. IT appears that substantially, the Court has not recalled the order on the premise that it is not open for the court to recall its own order. A close reading of the provisions contained under Order 9 Rule 3 and 4 of the Code of Civil Procedure would clearly indicate that this entire Order 9 of the Code of Civil Procedure will have to be read conjointly with the Rules and Order 9 of the Code of Civil Procedure postulate that parties to appear on the day fixed in the summons for defendant to appear and answer. Sub Rule 2 of Order 9 of the Code of Civil Procedure is relating to dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs and sub rule 3 of Order 9 has invested power in the court where neither party appears and the suit to be dismissed. Reading of sub rule is clearly giving an impression that where neither party appears when the suit is called for hearing, the court may make an order that the suit be dismissed. But then, subsequent Rule 4 is taking care of such situation where the parties are at liberty to either go for filing a fresh suit or to apply for setting aside the dismissal and upon sufficient cause, a mandate is given that the court shall make an order setting aside the dismissal and shall appoint a day for proceeding of the suit and as such, the application which has been given by the petitioner, is falling clearly within the parameters of Rule 4 or Order 9 of the Code of Civil Procedure. For immediate perusal Rule 4 of Order 9 of the Code of Civil Procedure reads as under :- “4. For immediate perusal Rule 4 of Order 9 of the Code of Civil Procedure reads as under :- “4. Plaintiff may bring fresh suit or Court may restore suit to file.-Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.” 5.2. Reading of this Rule 4 of Order 9 of the Code of Civil Procedure indicates that whenever a suit is dismissed either under Rule 2 or under Rule 3 then the plaintiff may either file a fresh suit or apply for setting aside the dismissal and the court if satisfies about the sufficient cause, then the court would make an order of setting aside the dismissal and shall appoint a day for proceeding ahead with the suit. This Rule 3 which has been indicated for is the eventuality which has taken in the present proceedings where neither party appears and therefore, it appears that a conjoint reading of Order 9 of the Code of Civil Procedure would indicate that the reason which has been assigned in para 18 is not just and proper. About the delay aspect in not tracking the matter for a period of three years, it appears to have been explained, but the tenor of the order is that once the court delivered the judgment, same cannot recalled its own order. As a result of this, this Court is of the considered opinion that Order 9 Rule 4 of the Code of Civil Procedure is sufficiently investing power in court to set aside the dismissal and shall appoint a day for proceeding with the suit, moment the court satisfies about the sufficient cause shown by the plaintiff. As a result of this, it appears to this court that the order is passed upon misreading and misconstruing the provisions contained under Order 9 of the Code of Civil Procedure. 5.3. As a result of this, it appears to this court that the order is passed upon misreading and misconstruing the provisions contained under Order 9 of the Code of Civil Procedure. 5.3. The court has also taken note of the fact that the parallel proceeding of child custody i.e., First Appeal is still pending, judgment is not pronounced and as such, bona fide belief of the petitioner cannot be unnoticed by the court and therefore, also this is a fit case in which the impugned order deserves to be set aside. This is more so in view of the well recognized principles that whenever substantial justice is pitted against the technical consideration, substantial justice must be given predominance and the procedural provisions are meant for administering the justice rather than thwarting. Hence, keeping this proposition in mind, the court is of the opinion that interest of justice would be met, if the impugned order is quashed and set aside and the parties must be given a fair chance of prosecuting the matter on merit. The relevant observations contained in para 9 and 10 of the decision of the Apex Court in the case of Banwari Lal (Dead) by Legal Representative & Anr. v. Balbir Singh reported in (2016) 1 SCC 607 , since kept in mind by the court, are reproduced hereinafter, though this decision is basically on Order 22 but the analogy and gist can be taken in aid:- “9. Provisions of Order XXII, CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra v. Pramod Gupta (2003) 3 SCC 272 : ( AIR 2003 SC 2588 ), a Five Judge Bench of this Court held as under:- "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22, CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice..." (emphasis supplied) 10. In Sital Prasad Saxena (D) by LRs. In Sital Prasad Saxena (D) by LRs. v. Union of India and Ors., (1985) 1 SCC 163 : ( AIR 1985 SC 1 ), it was observed that the rules of procedure under Order XXII, CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order cannot be sustained.” 5.4. Yet another proposition of law of the recent time, which has been pronounced by the Apex Court that as far as possible, if the learned advocate is not present, then instead of disposing of the proceeding on merit, dismissed for default should be the proper mode to be adopted by the court and keeping in view that proposition in mind also, this court is of the opinion that the impugned order deserves to be quashed and set aside with a consequential direction that the main Family Suit may be heard and disposed of as expeditiously as possible by granting full opportunity to the parties to the proceedings. 6. The peculiar background of this fact is leading to one situation where the petitioner must be given a fair chance of agitating the grievance on merit contained in the Family Suit. 7. Resultantly, the present petition is allowed. The impugned order dated 12.02.2019 passed in Civil Misc. Application No.106 of 2018 in Family Suit No.1665 of 2015 is quashed and set aside and the relief prayed for in Civil Misc. Application No.106 of 2018 is granted and the court below is directed to give appropriate date in the suit proceedings to proceed ahead on merit in accordance with law. 8. With the aforesaid observations and directions, the petition stands disposed of with no order as to costs.