Chattisgarh High Court
Mohammad Farid Ansari vs Smt. Rabiya Khatoon on 27 April, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 64 of 2019
• Mohammad Farid Ansari S/o Late Shri Fakir Mohammad Aged About
31 Years R/o Sarvmangla Nagar, Dullapur, Post Durpa, Tahsil
Katghora, District Korba, Chhattisgarh.
---- Appellant
Versus
• Smt. Rabiya Khatoon W/o Mohammad Farid Ansari Aged About 28
Years D/o Haji Behre Ali, R/o Flat No. 204, Titan 01, Park, Sireen
Colony, Sankhedi, Kolar Road, Bhopal, Madhya Pradesh
---- Respondent
For Appellant : Shri Syed Imtiz Ali, Advocate
For Respondents : Shri Vijay Kumar Sahu, Advocate
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice N.K. Chandravanshi
Judgment on Board
Per Goutam Bhaduri, J.
27/04/20 22
Heard.
1. The instant appeal is against the judgment and decree dated
05.11.2019 passed in Miss Civil Suit No. 02/18 by the Learned
Family Camp Court, Katghora, District Korba wherein
application filed under Order 9 Rule 13 of CPC was allowed.
2. The brief facts of the case are that:-
• The appellant/ husband filed an application for restitution
of conjugal rights against the respondent/ wife wherein
the respondent initially appeared and thereafter she
failed to appear, consequently ex parte order was
passed on 08.05.2017 in Civil Suit No. 156A/ 2015.
• Subsequently, respondent/ wife filed an application for
setting aside the order dated 08.05.2017, on the ground
that since she was staying at Bhopal since 2016 and
when she came to know of the fact that ex parte
judgment and decree has been passed, she immediately
filed an application to set aside the ex parte judgment
and decree dated 08.05.2017.
• Learned Family court allowed the application under order
9 Rule 13 of CPC.
Hence this appeal.
3. Learned counsel for the appellant would vehemently submit that
the wife was making personal appearance throughout in the
original case bearing Civil Suit No. 156A/ 2015 and all of a
sudden she stopped appearing, therefore, the learned Family
Court did not have any option except to proceed ex parte.
Accordingly, the ex parte proceedings were drawn. He would
further submit that thereafter when the application for setting
aside the ex parte judgment and decree was filed the wife/
respondent appeared and admitted the fact that she came to
know about execution proceeding, therefore, there was a
deliberate non-appearance and no valid reasons were assigned
by her for her absence. He would further submit that only casual
submission and reasons were assigned which was beyond the
records and against the existing facts and the learned family
court failed to appreciate this fact and set aside the judgment
and decree dated 08.05.2017.
4. Per contra, learned counsel for the respondent would submit that
the order passed by the learned court below is well merited and
it do not call for any interference.
5. We have heard learned counsel for the parties. In order to
appreciate the rival submissions, the original civil suit which
records the proceeding of the ex parte order bearing No. 156A
of 2015 was perused.
6. Perusal of the order sheet would reveal that husband had filed an
application for restitution of conjugal rights before the family
court in the month of September, 2015. Wherein, after notice
the wife appeared in person on 08.10.2015, thereafter the
proceeding on different dates were drawn and order sheets
shows that efforts for reconciliation has also been failed. It
further shows that case was adjourned from time to time and
finally the case was fixed for argument on I.A. No. 01. Records
show that I.A. No. 01 was filed by the wife claiming amount of
Rs. 2,300/- for expenses to be incurred for traveling from Bhopal
to family court Katghora. The order sheets filed further shows
that on 06.02.2017, the counsel for the respondent/ wife filed an
application for adjournment which was dismissed and without
any order on I.A. No. 01, the ex parte proceeding was drawn
and the appellant/ husband was directed to keep the witnesses
present.
7. The genesis of the order on which the ex parte proceeding was
drawn would show that the case was fixed for argument on I.A.
No. 01. Thereafter, when the subsequent date was given for
hearing on 06.02.2017, the order sheet of the trial court was
silent about the the next date as the date remains blank except
the month and the year. The order sheets further shows that the
case was taken up on 06.03.2017 and thereafter the next date
was given on 09.03.2017 and eventually on 19.04.2017
statement of the witnesses were recorded and on 08.05.2017
after hearing the arguments, the case was closed for judgment.
8. It is settled proposition of law that when the court proceeds ex
parte under Order 9 Rule 6 of CPC, it would only cover the
period during which the defendant was actually absent and it
would not act as a bar to his resuming appearance on
subsequent proceedings .
9. The Supreme Court in the matter of Sangram Singh Appellant
Vs. Election Tribunal Kotah and Another reported in AIR
1955 SCC 425, explaining the adjournment of hearing placed
emphasis that whenever a case is adjourned the Court must fix
a date for further hearing of the suit. The principle as laid down
would show that when the case is adjourned, the parties may
appear in the further proceeding.
10. In the instant case, initially in the original case bearing Civil Suit
No. 156A of 2015, when the respondent was proceeded ex parte
on 06.02.2017, according to the order sheet of the trial court no
further date was given thus it can be presumed that for
uncertainty of date, as the next date was blank, no participation
in proceeding was possible. Therefore, in absence of any clear
further date by court the facts would hold the sway in favour of
the respondent/ wife as she did not have the knowledge of the
date of subsequent appearance. It is also trite that the act of
court shall not cause prejudice to either of the litigants.
11. Now further coming back to the reasons which have been
assigned in the order allowing the application under Order 9
Rule 13 of CPC, learned Family court has observed that the
facts would show that respondent was residing at Bhopal with
her son of 5 years and she was required to look after her ailing
mother and father also. It is further observed that she has
categorically deposed in her statement that date of 06.02.2017
was never informed by the counsel to her on whom she was
dependent as she was residing out of jurisdiction of the court.
The reasons which has been assigned that immediately after
knowing the fact about the ex parte decree by post she
contacted the lawyers and thereafter the application for setting
aside the ex parte judgment and decree was filed. Further the
reasons which have been assigned by the family court also
appears to be reasonable coupled with the fact that after the
date the ex parte proceeding was drawn, no particular date was
fixed. Consequently, the order passed by the learned family
court to set aside the ex parte order appears to be just and
legal. Accordingly, we are of the opinion that no interference in
the order impugned is required.
12. In a result the appeal is dismissed.
Sd/- Sd/-
(Goutam Bhaduri) (N.K. Chandravanshi )
Judge Judge
Jyoti
Headlines
FA(MAT) No. 64 of 2019
The ex parte proceeding under Order 9 Rule 6 would
only cover the period of absence and would not act as
bar in subsequent proceedings.
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