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FAM No. 45 of 2015
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 45 of 2015
(Arising out of the order dated 5.12.2007 passed in MJC Civil No.53/2007
by the Principal Judge, Family Court, Durg (CG))
Smt. Mala @ Mela Pradhan W/o Shri Balaram Pradhan Aged
About 35 Years C/o Tirith Ram Lasar, Kirana Store Pisaud, P.S.
Champa, District Janjgir Champa Chhattisgarh
---- Petitioner
Versus
Balaram Pradhan S/o Shri Shatruhan Prasad Pradhan Aged
About 34 Years R/o Sector-4, Road No. 26, Qtr. No. 2/G, Bhilai
Nagar, Tahsil And District Durg Chhattisgarh , Chhattisgarh
---- Respondent
For Appellant Mr. Sunil Otwani, Advocate
For Respondent Mr. Pradeep Rajgir, Advocate
DB.: Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mr. Justice Deepak Kumar Tiwari
Judgment on Board By Goutam Bhaduri, J.
14/3/2022
1. Heard.
2. Challenge in this appeal, filed by the wife/appellant, is 2 FAM No. 45 of 2015 to the order dated 5.12.2007, whereby, an application under Section 5 of the Limitation Act, 1963 ( in short "the Limitation Act") filed in MJC Civil No.53/2007, which was filed to set-aside the ex-parte judgment and decree dated 22.3.2006 passed in Civil Suit No.580-A/2005 for grant of divorce, was dismissed. Consequently, the application under Order 9 Rule 13 of CPC was also dismissed. To conclude, by such order, the judgment and decree dated 22.3.2006 passed by the learned Family Court was affirmed.
3. The brief facts of this case, are that :
(i) the marriage between the appellant and the respondent took place on 1.5.1996 and out of the wedlock, two children were born. The parties herein could not go along with their marriage, therefore, on 21.11.2005, an application under Section 13 of the Hindu Marriage Act, (in short "the Act, 1955"), seeking divorce was filed. On 5.1.2006, the notices were issued. The service of acknowledgement of registered post was alleged to have been received on 2.3.2006 and thereafter, ex-parte proceedings were drawn. Consequently, ex-parte judgment and decree was passed on 22.3.2006.
(ii) Against the aforesaid judgment and decree, the appellant filed MJC bearing No.35/2006 under Order 9 Rule 13 of CPC to set- aside the judgment and decree dated 22.3.2006. The said MJC was dismissed in default on 25.9.2006 for want of prosecution. Thereafter, again, another MJC was filed on 3 FAM No. 45 of 2015 18.7.2007, which was numbered as 53/2007, being second application under Order 9 Rule 13 of the CPC along with an application under Section 5 of the Limitation Act. In the intermediate proceedings, an application was also filed on 25.10.2007 seeking amendment of the pleadings of the said MJC, however, it was rejected in the month of November 2007. Lastly, the application under Section 5 of the Limitation Act was heard on 5.12.2007 and the same was dismissed resulting in dismissal of MJC Civil No.53/2007 under Order 9 Rule 13 of CPC. The judgment and decree dated 22.3.2006 of original case was challenged before this Court in a First Appeal, however, the said appeal was dismissed with liberty to challenge the dismissal of the application under Section 5 of the Limitation Act on 5.12.2007. Consequent thereto, this instant appeal.
4. Learned counsel for the appellant would submit that perusal of the record would show that gross injustice has been done to the wife-appellant. He refers to the judgment and decree of the original case and would submit that the acknowledgement, on basis of which, an ex-parte proceeding was drawn, do not bear the signature of the appellant-wife. He would submit that incidentally, when the ex-parte order was passed, the husband and wife were occupying the same house and taking advantage of the above situation, surreptitiously, the husband has projected the service of summons to the appellant-wife, on which, the Court below acted. He would further submit that the averments would reveal that after the judgment and decree was 4 FAM No. 45 of 2015 passed, the wife was forced to leave the house because of the assault and she, eventually, had no source of income and had to take shelter in her parental home at Janjgir-Champa. Thus, the appellant/wife started residing at District Janjgir-Champa far away from Durg. Under these circumstances, on account of paucity of funds, the appellant could not manage and prosecute her application under Order 9 Rule 13 of CPC and it got dismissed on 25.9.2006. Thereafter, the second MJC was filed along with the application under Section 5 of the Limitation Act narrating the entire details and facts, but the said application for condonation of delay was dismissed. He would submit that the Court below failed to take into account the spirit of Section 5 of the Limitation Act and instead was too technical while deciding the application. Referring to the law laid by the Supreme Court in the matters of Bhivchandra Shankar More Vs. Balu Gangaram More and others 1, and Robhin Thapa Vs. Rohit Dora2, learned counsel for the appellant would submit that the merit should always be given preference in the likewise issues and accordingly, the order of the learned trial Court dated 5.12.2007 may be set-aside.
5. Per contra, learned counsel for the respondent would submit that the facts show that the wife was reluctant to prosecute her case. She deliberately failed to appear after filing of the MJC, therefore, the Court below has no other option except to 1(2019) 6 SCC 387 2 (2019) 7 SCC 359 5 FAM No. 45 of 2015 dismiss the same. He further submits that the application under Section 5 of the Limitation Act filed by the appellant would show that no sufficient cause was given so as to condone the delay. He would also submit that as per the instruction received, the husband has remarried after dismissal of the application under Order 6 Rule 17 of CPC, therefore, this appeal has lost its efficacy.
6. We have heard learned counsel for the parties and perused the record.
7. The ex-parte proceeding was drawn by the learned Family Court in Civil Suit No.580-A/2005. The genesis and nucleus of the matter arise from the ex-parte proceedings. The first MJC was filed to set-aside the ex-parte order, but the same was dismissed for want of prosecution and subsequently, the second MJC along with the application under Section 5 of the Limitation Act was filed, but the condonation application was dismissed. This made us to look into the law laid down by Hon'ble Supreme Court while adjudicating the application under Section 5 of the Limitation Act.
8. The Supreme Court in the of matter of Bhivchandra Shankar More (supra), in para 15, has laid down that "sufficient cause" should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bona fides could be imputed. The Supreme Court has observed thus in para 15 :
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FAM No. 45 of 2015 "15. It is a fairly well-settled law that "sufficient cause" should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bona fides could be imputable to the appellant. After referring to various judgments, in B. Madhuri, this Court held as under : (SCC p. 696, para 6) "6. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rules has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay".
9. Further, the Supreme Court in the matter of Robhin Thapa (supra) observed that ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties and we are also of the same opinion that as far as possible the litigation should not be terminated by default unless and until blatant negligence is shown.
10. In the light of the aforesaid dictum, we deem it appropriate to deal with the facts of this instant appeal, which made us to lay hands to the file of the original judgment and decree.
11. Perusal of the application filed under Section 13 of the Act, 1955 by the husband before the Family Court, would show that the address of the parties show that both were residents of Qr No. 2/G, Street No.26, Sector-4, Bhilai Nagar, Tahsil and District 7 FAM No. 45 of 2015 Durg (CG). Consequently, this fact comes to fore that the wife and husband were occupying the same residence, wherein the notices were issued. The acknowledgment shows that the notice was stated to be served on appellant Mala Pradhan and bears her signature in Hindi.
12. Learned counsel for the appellant time and again has stressed upon the fact that the signature in the service report was not of appellant Mala Pradhan, as she never signs in Hindi. Therefore, though we may not like to deliberate on this issue at this point of time, but the question which looms large is whether the service was effected properly or not. Under this context, when the application under Order 9 Rule 13 of CPC was filed, after the ex-parte judgment and decree, the averments made in the said application would also be relevant. Initially, though the MJC was filed on 3.5.2006, but consequently, it got dismissed on 25.9.2006. The wife has made averments that she was forced to leave the matrimonial house on account of assault committed by the husband on the ground that ex-parte judgment and decree of divorce exists in his favour i.e. husband.
13. The submission of appellant-wife also appears to be logical that she was forced to leave the house on the ground that the husband was holding a decree of divorce. This issue, however, has not been gone into in the second MJC where there was also an application under Section 5 of the Limitation Act for condonation of delay. The Family Court disbelieved the said 8 FAM No. 45 of 2015 averments. As per the law settled by the cases cited above, the Courts should always try to adjudicate the matter on merits. There cannot be a straitjacket formula but inferences are required to be drawn from the facts of the case.
14. In the instant case, the wife alleged that after the appellant was forced to leave her matrimonial house, she did not have any means for her survival. She took shelter in her parental home and was completely dependent on them. The judgment and decree do not show that any alimony was fixed. Consequently, the inference can be drawn that the wife was forced to stay at her parental home. The second MJC though was filed subsequently along with the application under Section 5 of the Limitation Act, but was dismissed as barred by limitation. The order of the Family Court, therefore, appears to be too technical and has completely short-circuited the issue to go into the merits.
15. Consequently, following the dictum laid down by Hon'ble the Supreme Court in the above matters, it is held that the merit should always be given preference. We do not find any deliberate negligence when the wife knows the factum to set- aside a decree of divorce, which was ex-parte.
16. In view of above, we are of the opinion that the order dated 5.12.2007 is required to be set-aside. Accordingly, we set-aside the order dated 5.12.2007.
17. Considering the time which has passed in between the period 9 FAM No. 45 of 2015 and looking to the nature of dispute inter se, considering another bout of litigation on the sideline may continue leaving the original issue, we deem it proper to allow the application under Order 9 Rule 13 of CPC and set-aside the judgment and decree dated 22.3.2006.
18. It is ordered accordingly.
19. The parties shall appear before the trial Court on 25.4.2022 and the trial Court shall try to adjudicate the issue on merits as early as possible.
20. The appeal is disposed of.
Sd/- Sd/-
( Goutam Bhaduri) ( Deepak Kumar Tiwari)
Judge Judge
Shyna