CRP/1055/2023
2023 Latest Caselaw 4127 AP

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       THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                  C.R.P.Nos.1055 and 1071 of 2023

COMMON ORDER:

      The Revision Petition No.1055 of 2023, under Article 227 of

the Constitution of India, is preferred against the order, dated

22.10.2022, in I.A.No.871 of 2022 in D.O.P.No.138 of 2017 on the

file of the Court of the Principal District Judge, Ananthapuramu,

filed under Order IX, Rule 13 of C.P.C seeking to set aside the

exparte decree passed against the petitioner/ respondent in

O.P.No.138 of 2017, dated 28.12.2017 and permit him to contest

the D.O.P.

The Revision Petition No.1071 of 2023, under Article 227 of

the Constitution of India, is preferred against the order, dated

14.06.2022, in I.A.No.1100 of 2019 in D.O.P.No.138 of 2017 on

the file of the Court of the Principal District Judge,

Ananthapuramu, (in short "the court below") filed under Section 5

of Limitation Act, seeking to condone the delay of 604 days in filing

the petition under Order IX, Rule 13 of C.P.C and permit the

petitioner to contest the D.O.P.

2. The respondent herein is the petitioner before the court

below filed D.O.P.No.138 of 2017 for dissolution of the marriage

between him and his wife. Notice was served on the petitioner

herein, who is respondent before the court below, but neither

appeared nor contested the D.O.P. Consequently she was set

exparte. After examination of the petitioner therein, the court

below allowed the D.O.P on 28.12.2017, dissolving the marriage

between him and his wife with effect from the date of said order.

Subsequently the petitioner herein filed the I.A.No.871 of 2022 to

set aside the exparte decree dated 28.12.2017 passed against her

with delay condonation petition in I.A.No.1100 of 2019 in filing

petition under Order IX, Rule 13 of CPC, which were allowed.

Assailing the same, the present Revisions came to be filed.

3. Since the facts and issue involved in all the Civil

Miscellaneous Appeals and also Contempt Cases are one and the

same, I find it expedient to decide these matters by a Common

Judgment.

4. Heard Sri B.S.Reddy, learned counsel for the petitioner

and Sri K.Bhimanna, learned counsel for the respondent.

5. During hearing learned counsel for the petitioner would

mainly contend that the court below without appreciating the facts

and circumstances on behalf of the petitioner straight away in

single stroke allowed the applications without assigning any

reasons and passed single line order, which is highly untenable

and not reasonable. There is abnormal delay of 604 days in filing

the petition under Order IX, rule 13 of CPC. Therefore atleast the

court below has to made enquiry, basing on the averments made

in the affidavit filed by the respondent, then only has to pass

appropriate orders. But the court below failed to do so. Therefore

prays to set aside the impugned orders of the court below.

6. Whereas, learned counsel for the respondent would

contend that no notice was served on the respondent, but the

appellant might have managed to get an endorsement of refusal by

playing fraud. Further the respondent came to know about

passing of the exparte decree in D.O.P when a Panchayat was held

in the Police Station. Therefore she filed applications immediately

to set aside the decree with delay condonation petition. After filing

the said petitioners, the petitioner approached the respondent and

promised that he will invite to lead marital life, by believing the

words of him, she waited all these days, but surprisingly refused

to receive her alleging that the marriage is already broken down

irretrievably by way of decree of divorce by the court. It is further

contended that the respondent herein is ready and willing to lead

happy marital life with the petitioner herein. Therefore, requested

to dismiss the revision.

7. Perused the record.

8. As could be seen from the impugned orders of the court

below that there is single line order as contended by the learned

counsel for the petitioner. The court below without discussion has

straight away passed blanket order, though the respondent herein

filed affidavit by mentioning reasons. The court below atleast

ought to have answer whether the reasons set out in the affidavit

is genuine or not, but the court below failed to do so. However, it is

a matrimonial matter; it has to be decided on merits by

considering the explanations from both the sides. In the instant

case, one side order passed basing on the evidence of petitioner. It

is apparent on the face of the record that there is abnormal delay

in filing the applications by the respondent, but the court below

ought to have enquire the same and pass appropriate reasoned

order to clear stigma.

9. However, atleast the respondent came forward with an

application to set aside the impugned order passed against her

dated 28.12.2017 with delay condonation petition. This court on

perusal of the affidavit of the respondent that she expressed her

readiness to join with her husband and disputing the fact that she

never received notice in the D.O.P and also she came to know

about the exparte decree passed while Panchayat conducted in the

Police Station. These facts have to be decided on merits only by

way of examination. Therefore, the orders impugned require no

interference of this Court.

10. In view of aforesaid discussion, both the C.R.Ps are

dismissed by a common order. Since the D.O.P is filed in the year

2017 and it is a oldest matter. Therefore the court below is

directed to dispose of the matter on merits, after affording ample

opprortunity to both the parties, within a period of three (03)

months from the date of receipt of a copy of this order. There shall

be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall also stand closed.

___________________________ DR.K.MANMADHA RAO, J Date: 08.09.2023.

KK

THE HON'BLE DR. JUSTICE K. MANMADHA RAO

C.R.P.Nos.1055 and 1071 of 2023

Date: 08.09.2023.

KK