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2023 DIGILAW 2076 (RAJ)

Vidya Tanwar @ Teena Bhati v. Ashok Bhati

2023-11-06

ARUN MONGA

body2023
ORDER : Mr. Arun Monga, J. - Assailed herein is an order dated 16.11.2021 (Annexure-3) whereby, learned Family Court No.-1, Jodhpur whereby right of the petitioner-wife to file reply to the application filed by the respondent No.1 (husband) under section 9 of the Hindu Marriage Act, 1955 has been closed. 2. Succinct facts first, as pleaded in the instant writ petition. 2.1 After causing of service, petitioner-wife appeared before the Ld. Court below on 15.01.2021 and the next date was fixed on 17.03.2021. On the said date, the petitioner was present, but since the court was not held, matter was adjourned for 20.05.2021. Subsequently, due to the COVID-19 pandemic, the work in courts was suspended. On resumption of work, case was eventually listed on 02.08.2021. On said date, last opportunity was granted for filing the reply. 2.2. Thereafter, on 08.09.2021, another opportunity was provided, subject to payment of cost of Rs. 500/-. Since her son was suffering from dengue on the date fixed i.e. 28.10.2021, an application was filed by petitioner seeking adjournment as she could not attend hearing. Court thus granted last opportunity to file reply, and the matter was then listed on 16.11.2021. The petitioner's counsel appeared on that date and explained the situation of petitioner's inability to attend due to her son's health condition. However, the Ld. Court below closed the opportunity for filing the reply and proceeded ex-parte against the petitioner vide order dated 16.11.2021. Hence the instant petition to assail the same. 3. Learned Counsel for the petitioner submits that the learned Family Court passed the impugned order in haste. Court below ought to have been mindful that it is required to administer justice to both parties after giving them equal opportunity and after considering the principles of natural justice. The impugned order dated 16.11.2021 is therefore liable to be set aside. He further asserts that the petitioner's son was suffering from dengue, rendering her unable to appear before the learned Court and/or take steps prior thereto for preparing reply etc. Notwithstanding, the learned Family Court ignored this contention, closed the opportunity for filing the reply, and proceeded ex-parte against the petitioner. Counsel would urge that there was no deliberate delay on the part of the petitioner and it would cause her irreparable harm if she is not allowed to contest the petition. 4. Notwithstanding, the learned Family Court ignored this contention, closed the opportunity for filing the reply, and proceeded ex-parte against the petitioner. Counsel would urge that there was no deliberate delay on the part of the petitioner and it would cause her irreparable harm if she is not allowed to contest the petition. 4. Learned counsel for the respondents opposes the contentions raised by the learned counsel for the petitioner and states that petitioner has been deliberately delaying the proceedings on one pretext or the other. 5. Heard. 6. Matter was earlier heard by co-ordinate bench of this court, and an order dated 05.01.2022 was passed, being apposite, same is reproduced here in below for ready reference: - "1. Heard learned counsel for the petitioner and perused the material available on record. 2. Issue notice. Issue notice of the stay application also, returnable within four weeks. 3. In the meanwhile, if on the next date, which is stated to be 25.01.2022, the petitioner pays a cost of Rs. 3,000/- to the plaintiffs (respondents herein)/counsel for the respondents, the written statement filed by the petitioner shall be taken on record. 4. In case, the cost is not accepted by the plaintiffs/counsel for the plaintiffs and they want to contest the present writ petition, they would move an application before the learned Trial Court to this effect. In such event, further proceedings in Civil Original Suit No.498/2020, pending before the learned Family Court No.1, Jodhpur, shall remain stayed. 5. It is made clear that on failure of the petitioner to make the payment of costs of Rs. 3,000/- or to file reply by 25.01.2022, no further opportunity shall be granted to her." 7. Apropos, on a Court query as to whether cost of Rs. 3,000/- has been deposited, learned counsel for the petitioner explains that on 25.01.2022, since the learned trial Court was not functional and, resultantly despite being ready and willing, petitioner could not deposit the cost. Matter was since adjourned to 21.03.2022, when the defendant-petitioner filed an appropriate application along with the aforesaid order of this court, seeking to deposit the cost. The said application was, however, dismissed on the ground that the petitioner did not deposit the cost within the time granted by this Court; therefore, he was not entitled to do so subsequently. 8. Matter was since adjourned to 21.03.2022, when the defendant-petitioner filed an appropriate application along with the aforesaid order of this court, seeking to deposit the cost. The said application was, however, dismissed on the ground that the petitioner did not deposit the cost within the time granted by this Court; therefore, he was not entitled to do so subsequently. 8. Having heard the rival contentions, I am of the view that though the learned trial Court was left with no choice but to reject the aforesaid application since the time granted by this Court to file was on or before 25.01.2022, however, one cannot be unmindful of the fact that on 25.01.2022 the Court below itself was not functioning. Therefore, attributing the delay entirely to the petitioner does not seem just and proper in the present case. Given the nature of dispute between the parties, WS of the petitioner is essential for proper and just adjudication of the lis between the parties herein. 9. In the overall premise and in the larger interest of justice, the petitioner is allowed to deposit Rs. 3,000/- at this stage within a period of four weeks of this order being uploaded on website of this court and subject to the same, written statement shall be taken on record. 10. Accordingly, the writ petition is disposed of. 11. Pending application(s), if any, shall also stand disposed of.