Calcutta High Court (Appellete Side)
Ct-08 Sri Rajesh Kumar Shaw vs Smt. Rekha Shaw on 4 April, 2022
8 04.04.2022 FMA 1621 of 2018
Ct-08 Sri Rajesh Kumar Shaw
Vs.
Smt. Rekha Shaw
ar Mrs. Sohini Chakraborty
Ms. Prajaaini Das
... For the Appellant
Mr. Kumar Jyoti Tewari
Mr. Rajlakshmi Ghatak
... For the Respondent
The appellant is aggrieved by the Judgment
and Order no. 25 dated 7th November, 2017 and
Order No. 26 dated 18th November, 2017 passed
by the learned Additional District Judge, 2nd
Court at Sealdah in Misc. Case No. 8 of 2015
read with Section 5 of the Limitation Act.
The undisputed facts that emerged from the
record and the submissions made on behalf of
the parties, it is revealed that the husband was
aware that the respondent/opposite party
preferred an application being C.O 3096 of 2012
under Section 24 of the Code of Civil procedure
before the High Court for transfer of the suit and
the Hon'ble court by its order dated 6th
September, 2013 was pleased to transfer said
record to the learned District Judge at Alipore
with a direction to transfer the Matrimonial Suit
to a competent court at Sealdah. Accordingly,
learned District Judge at Alipore transferred the
Matrimonial Suit to the court of learned 2nd
Addition al District Judge, Sealdah for disposal.
The parties were aware of the fact that
henceforth the matrimonial suit would be heard
by learned 2nd Additional District Judge,
Sealdah and the learned Judge directed the
respondent/wife to issue summons/notice to the
husband/appellant both ways i.e. by registered
post and through process server. Summons
were sent through registered post, which was
returned with postal endorsement "not claimed"
but there was no whisper regarding the
summons sent through the process server. On
the basis of the said report the trial court fixed
the hearing of the suit ex parte on 29th April,
2014.
The contention of the appellant before the
trial court that he had neither received any
summons nor got any information from the
postal peon. On 19th January, 2015 the
husband went to Bankshal court in connection
GR No. 1334 of 2004 under Section 498A/406
I.P.C and at that time the respondent/wife
informed the husband that she already obtained
a decree for dissolution of marriage in
Matrimonial Suit No. 2841 of 2013 from the
court of learned 2nd ADJ, Sealdah.
It is further alleged by the appellant that
after enquiry it was found that matrimonial suit
was decreed ex parte on 9th July, 2014, although
the appellant submits that no notice was served
upon him. If he had knowledge that the suit
was transferred, he could contest the same.
Under Order 9 Rule 13 C.P.C it has been
mentioned that no court shall set aside a decree
passed ex-parte merely on the ground that there
has been an irregularity in the service of
summons, if it is satisfied that the defendant
had notice of the date of hearing and had
sufficient time to appear.
It is noted that the appellant during cross-
examination admitted that he was aware about
the transfer of the matrimonial suit to Alipore
court to Sealdah court. So the submission of
the appellant is clearly unacceptable.
In considering the application under Order 9
Rule 13 C.P.C the court has to see two things,
one non-service of summons and secondly if the
litigant is prevented by sufficient cause from not
appearing on the date fixed in the court.
If a litigant is willfully absent by not
participating in the proceeding on the date fixed,
it cannot be contended and held that he was
prevented by sufficient cause from appearing on
the date fixed.
We have been informed by the learned
counsel appearing for the respondent that
following the dissolution of marriage, the wife
had remarried in the mean time after the expiry
of the statutory period of appeal.
On such consideration, we do not find any
merit in the instant appeal.
FMA 1621 of 2018 thus fails and is
accordingly dismissed.
(Ajoy Kumar Mukherjee,J.) (Soumen Sen, J.)
