Allahabad High Court
Smt. Sunaina Mittal vs Rishi Mahajan on 12 May, 2023
Bench: Suneet Kumar, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:103516-DB
Court No. - 42
Case :- FIRST APPEAL No. - 474 of 2017
Appellant :- Smt. Sunaina Mittal
Respondent :- Rishi Mahajan
Counsel for Appellant :- Anand Kumar Upadhyay,Akhilesh Chandra Srivastava,Alok Kumar,Bipin Shukla,Neeraj Dubey,Raghvendra Pratap,Sakti Dhar Dubey
Counsel for Respondent :- Neeraj Dubey,Rajesh Gupta,Sakti Dhar Dubey
Hon'ble Suneet Kumar,J.
Hon'ble Rajendra Kumar-IV,J.
Heard Sri Raghvendra Pratap, learned counsel for the appellant and Sri Rajesh Gupta, learned counsel for the respondent.
Appellant/respondent by the instant appeal is challenging the order dated 19 April 2017 passed by the Additional District and Sessions Judge, Meerut, in Misc. Case No. 17 of 2016, rejecting the application under Order IX Rule 13 of the Code of Civil Procedure (for short 'CPC').
The divorce suit instituted by the plaintiff/respondent came to be decreed ex parte on 20 April 2016.
Aggrieved, appellant filed an application (3-C) under Order IX Rule 13 CPC, to recall the ex parte order and restore the suit. The trial court in the impugned order has noted that the dates fixed in the proceedings as reflected from the order sheet of the trial court was not preponed a was alleged by the appellant.
The allegation of the appellant that there was overwriting and cutting was not found in the order sheet, however, the court did not consider the allegation of the appellant that on 4 April 2016 none of the counsels had appeared, consequently, the matter came to be fixed on 8 May 2016, as was reflected from the office diary. It is alleged that the aforenoted date was manipulated and preponed to 8 April 2016, thereafter, a date was fixed on 11 April 2016 and the matter could not be taken up due to strike of the counsels. Thereafter, the suit came to be decreed ex parte on 20 April 2016 within 12 days from the date of manipulation in the office diary. The appellant came to know of the order in proceedings pending before the Delhi High Court in anticipatory bail application on 3 May 2016. The restoration application came to be filed within 15 days of the decree alleging that the staff of the court had manipulated the dates at the behest of the respondent and there is overwriting and cutting of the date in the office diary. A complaint came to be filed by the appellant before this Court on the administrative side. On enquiry, prima facie, the allegation of the appellant of manipulation and preponement of the date was found having merit. Consequently, the disciplinary proceeding was initiated against the court staff.
Having regard to the facts and circumstances in the matter, we are of the opinion that the court below should have recalled the order and decree as the application under Order IX Rule 13 CPC was filed promptly and the appellant was made to suffer for no fault of her.
Accordingly, the application under Order IX Rule 13 CPC is allowed. The impugned judgment and decree dated 20 April 2016, passed in Original Suit No. 453 of 2015 is set aside. The suit being Original Suit No. 453 of 2015, is restored to its original file and number. The trial court is directed to proceed to the decide the suit on merit.
The appeal is, accordingly, allowed.
No cost.
Order Date :- 12.5.2023
K.K. Maurya
