Allahabad High Court
Sant Sharan Pandey @ Bablu Pandey vs Smt Pushpa Devi on 28 May, 2024
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:96729-DB
Court No. - 29
Case :- FIRST APPEAL DEFECTIVE No. - 249 of 2024
Appellant :- Sant Sharan Pandey @ Bablu Pandey
Respondent :- Smt Pushpa Devi
Counsel for Appellant :- Ramesh Kumar Ojha
Counsel for Respondent :- Rakesh Kuamr Yadav
Hon'ble Vivek Kumar Birla,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
Re: Civil Misc. Delay Condonation Application No. 1 of 2024
1. Heard Sri S.N. Mishra holding brief of Sri Ramesh Kumar Ojha, learned counsel for the appellant and Sri Rakesh Kumar Yadav, learned counsel appearing for the sole respondent.
2. Stamp Reporter has reported latches of 14 days in filing of the present appeal.
3. Learned counsel for the respondent submits that he has no objection in case the delay condonation application is allowed and the matter is heard on merits.
4. No counter affidavit has been filed. Cause shown is sufficient. The application is allowed and the delay in filing the appeal is condoned.
5. Office is directed to give regular number to the appeal.
Re: Appeal
1. Heard Sri S.N. Mishra holding brief of Sri Ramesh Kumar Ojha, learned counsel for the appellant and Sri Rakesh Kumar Yadav, learned counsel appearing for the sole respondent.
2. Present appeal has been filed challenging the judgment and order dated 24.1.2024 passed by the Additional Principal Judge, Family Court No. 2, Allahabad in Misc. Civil Application No. 52 of 2013 (Sant Sharan Pandey @ Bablu Pandey vs. Smt. Pushpa Devi) as well as the impugned ex-parte order dated 24.1.2013 passed by the Additional Family Judge/Additional District Judge, Court No. 14, Allahabad in Marriage Petition No. 1069 of 2009 (Smt. Pushpa Devi vs. Sant Sharan Pandey @ Bablu Pandey) under Section 13 of Hindu Marriage Act by which the court below has ex-parte allowed the divorce petition and also illegally rejected the recall / restoration application of the appellant.
3. The application filed by the appellant for setting aside the judgment and decree dated 24.1.2013 passed in Petition No. 1069 of 2009 filed under Section 13 of the Act by the respondent-wife was rejected on the ground that the appellant has full knowledge of the case and on several dates he appeared but thereafter he stopped appearing in the present case. The restoration application along with delay condonation application was filed on 24.2.2023 after more that ten and half years. It was also noticed that the appellant had also filed Marriage Petition No. 170 of 2003 under Section 9 of the Act for restitution of conjugal rights, which was dismissed on 1.7.2010 and no restoration application was filed in the aforesaid case.
4. Challenging the same, submission of learned counsel for the appellant is that the restoration application was liable to be allowed and the allegations levelled in the divorce petition are absolutely false. It is next submitted that the court below has not considered as to whether the notices sent to the appellant were served on the appellant or not and the newspaper Nyayadhish in which the notice was published has no circulation to the locality of the appellant, therefore, the application was liable to be allowed.
5. Per contra, learned counsel for the respondent has highlighted that the appellant was appearing in both the cases but subsequently he stopped appearing in the aforesaid cases and the appellant refused to make signatures on the order-sheet. It is next submitted that the appellant had full knowledge of the proceedings of the divorce petition.
6. We have considered the submissions and have perused the record.
7. We find that four notices were sent by registered post A.D. and subsequently notice was also published in the newspaper Nyayadhish and in divorce petition filed by the wife under Section 13 of the Act and the petition filed by the husband under Section 9 of the Act were proceeded together in which four dates i.e. 5.2.2010, 15.3.2010, 15.5.2010 and 1.7.2010 were fixed and as per order dated 5.2.2010 the appellant was present but he refused to make signatures on the order-sheet and thereafter he stopped appearing in the divorce petition. The case of the appellant filed under Section 9 of the Act was rejected on 1.7.2010, however, no restoration application was filed in the same.
8. We, therefore, find that the appellant had full knowledge of the litigation pending between the parties, therefore, the court below has not committed any mistake of law in rejecting the application for setting aside the ex-parte judgment and decree dated 24.1.2013.
9. In such view of the matter, the appeal in respect of present impugned order dated 24.1.2024 is dismissed and consequently the ex-parte judgment and decree dated 24.1.2013 passed in Petition No. 1069 of 2009 is upheld.
10. Present appeal is accordingly dismissed.
Order Date :- 28.5.2024
Lalit Shukla
