Chattisgarh High Court
Vithika Mudliyar vs Santosh Mudliyar on 22 November, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 127 of 2020
Vithika Mudliyar Wife Of Santosh Mudliyar, D/o Satish
Sachchar, R/o 2-3, Sarva Sampanna Nagar Bichouli Hapsi
Road, Kolbiya Kanvent School, Bichouli Hapsi Indore
Kanadiya Road, Indore, Madhya Pradesh, Pin 452016
---- Appellant
Versus
Santosh Mudliyar S/o G. K. Ghanghoti Mudliyar, R/o
443/36, Near Railway Pump House, Vivekanand Nagar,
Torwa, Bilaspur (Chhattisgarh)
----Respondent
For Appellant :- Mr. K. K. Khatri, Advocate.
For Respondent :- Mr. Neeraj Choubey, Advocate
Hon'ble Shri Justice P. Sam Koshy
Hon'ble Shri Justice Parth Prateem Sahu
Order On Board
(22.11.2021)
Per P. Sam Koshy, Judge
1. The present is an appeal under Section 19 (1) of the Family Courts
Act assailing the judgment and decree dated 13.01.2020 passed in
Civil Appeal No. 209-A/2019 whereby the learned Principal Judge,
Family Court, Bilaspur has allowed the application under Section 9 of
the Hindu Marriage Act, 1955 ordering the appellant herein to ensure
restitution of conjugal rights with the respondent.
2. The impugned judgement is an ex parte order. It is this proceeding of
ex parte and the ex parte judgement passed by the Court below which
is under challenge in the instant case.
3. The contention of the appellant all along is that she has not been
served with the notice which was ordered to be issued by the Court
below before proceeding ex parte. Therefore, the proceeding of ex
party by the Court below is not proper, legal and justified and the
impugned judgement therefore deserves to be set aside/quashed.
4. Opposing the appeal learned counsel for respondent referred to
paragraph-3 of the impugned judgement whereby there is an
observation by the Court below of the notice having been issued to the
appellant as also there is a reply furnished by the appellant. Counsel
for the respondent submits that in spite of proper notice if the
appellant after filing of her reply in the Court did not further contest
her case on merits, the proceeding of ex parte by the Court below
cannot be found fault with and the appeal therefore should be
rejected.
5. We have gone through the order sheets of the Court below. The
proceedings drawn clearly reflect that on an earlier occasion notice
was issued to the appellant. The notice also seems to have been duly
served and the respondent i.e. the appellant herein had sent her reply
to the proceedings by post which was taken on record by the Court
below.
6. However, from perusal of the order sheets it further reflects that in the
instant case the respondent, from the findings of the Court below
itself, is a deaf and dumb girl. The Court below taking this fact into
consideration had ordered for issuance of a fresh notice so that the
parties could appear and record their evidence. The order for
issuance of notice in this regard was passed on 16.10.2019 and the
respondent-plaintiff was directed to pay the required Talwana for
issuance of notice. On perusal of record it appears that no fresh PF
was paid by the respondent-plaintiff for issuance of fresh notice to the
appellant, neither is there any report of the Court below reaching to
the conclusion that notice issued in terms of the order dated
16.10.2019 has been duly served upon the appellant which could
enable the Court below to proceed ex parte. The records were also
perused by the learned counsel for respondent herein who too could
not find any Talwana paid by the respondent- plaintiff after the order
was passed by the Court below on 16.10.2019. This is also no report
or acknowledgment received from the postal department which could
show that the notice in terms of the order dated 16.10.2019 has been
duly effected upon the appellant. In the absence of any such proof
available on record firstly with regard to the payment of Talwana by
the respondent-plaintiff as per the order of the Court below dated
16.10.2019 and secondly in the absence of any report available to
show that in terms of the order of issuance of notice dated 16.10.2019
the notice was duly served upon the appellant, the proceeding of ex
parte by the Court below and the passing of an ex parte judgement
under Section 9 do not seem to be proper, legal and justified and the
same deserves to be and is accordingly set aside.
7. The judgment and decree dated 13.01.2020 passed in Civil Suit
No.209-A/2019 accordingly stands set aside/quashed. The matter
stands remitted back to the Court below for proceeding further from
the stage the Court below had proceeded ex parte against the
appellant.
8. Learned counsel for appellant undertakes to remain present either in
person or through a counsel before the Court below on 20 th January,
2022. Hence, the records be sent back to the concerned Court below
forthwith for taking appropriate steps.
9. The appeal accordingly stands allowed.
Sd/- Sd/-
(P. Sam Koshy) (Parth Prateem Sahu)
JUDGE JUDGE
Khatai
