Allahabad High Court
Gyanmati vs Madho Prasad Gupta on 11 August, 2022
Bench: Sunita Agarwal, Om Prakash Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- FIRST APPEAL No. - 878 of 2018
Appellant :- Gyanmati
Respondent :- Madho Prasad Gupta
Counsel for Appellant :- Ashok Kumar Singh,Bal Ram Gupta,Preeti Dwivedi
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Om Prakash Shukla,J.
The affidavit of service filed by the appellant indicates that pursuant to the order dated 19.03.2021, the notices/summons were published in the daily newspaper 'Aaj' dated 06.04.2021 and 08.04.2021.
The service of summons upon the respondent is found sufficient.
No one has put in appearance on behalf of the respondent. Thus, we are proceeding on the merits of the appeal in absence of the respondent.
This appeal is directed against the order dated 14.11.2018 whereby the restoration application 2-Ka filed by the appellant wife seeking recall of the order dated 24.11.2015 has been rejected.
It is submitted by the learned counsel for the appellant-wife that the respondent has succeeded in obtaining an ex parte decree dated 03.07.2014 by manipulating the service of summons upon the appellant-wife/the opposite party therein. The restoration application under Order IX Rule 13 was filed within a period of 27 days from the date of passing of the ex parte decree on 30.07.2014, which was kept pending for a long time and the respondent-husband did not appear in the said proceeding. However, the restoration application under Order IX Rule 13 was rejected due to the absence of the appellant herein/applicant therein by the order dated 24.11.2015. The recall application paper no.2Ka was then moved on 02.12.2015 within a short period on having knowledge about the dismissal of the Order IX Rule 13 application. The Family Court has rejected the application No.2Ka seeking recall of the order dated 24.11.2015 only on the ground that appellant herein has failed to submit any document to prove her illness. The explanation given by the appellant/applicant for her absence on 24.11.2015 was not accepted by the Family Court.
The learned counsel for the appellant submits that the appellant-wife has been duped at the hands of the respondent-husband who had succeeded in getting the ex parte decree and on account of indifferent attitude of the Family Court, the appellant herein has failed to get the ex parte decree set aside/recalled.
The attention of the Court has also been invited to the judgment and order dated 03.07.2014 by the learned counsel for the appellant to assert that virtually no finding has been given by the Family Court while passing the ex parte decree of divorce.
Having noticed the submission of the learned counsel for the appellant and the fact that the respondent-husband is avoiding the court proceeding in the matter of recall as also in the present appeal, the contention of the appellant that the respondent had succeeded in getting the ex parte divorce decree by manipulating the service of notice seems to be convincing.
Be that as it may, having noticed the fact that the recall application paper No.2Ka was filed by the appellant herein within a short period of dismissal of the application under Order IX Rule 13 CPC moved by her, we find substance in the submission of the learned counsel for the appellant that the Family Court has erred in rejecting the restoration application by the order dated 14.11.2018 taking a too technical view in the matter of recall.
It may be noted that on both the occasions while filing the application under Order IX Rule 13 and the application seeking recall of the order of the dismissal of the said application vide order impugned, the appellant-wife was prompt in her action whereas the respondent-husband has avoided the proceedings conveniently after obtaining ex parte decree.
For the above reasons, while setting aside the order dated 14.11.2018, the application No.2Ka filed by the appellant is hereby allowed. The order dated 24.11.2015 passed by the Family Court in dismissing the application under Order IX Rule 13 CPC is, thus, recalled. Resultantly, the application filed under Order IX Rule 13 CPC dated 30.07.2014 namely the restoration case no.48/74/14 is restored to its original number.
The Family Court is hereby directed to issue fresh notice to the respondent/opposite party therein (husband) calling upon him to file his objection on the application under Order IX Rule 13 filed by the appellant herein seeking recall of the judgment and order dated 03.07.2014 decreeing the divorce suit ex parte.
The Family Court is further directed to decide the application under Order IX Rule 13 CPC, after due notice to the opposite party therein, independently on merits without being influenced by any of the observations made herein above as expeditiously as possible.
With the above observations and directions, the appeal stands allowed.
Order Date :- 11.8.2022
P Kesari
