Chattisgarh High Court
Smt. Mala @ Mela Pradhan vs Balaram Pradhan on 14 March, 2022
1
FAM No. 45 of 2015
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 45 of 2015
(Arising out of the order dated 5.12.2007 passed in MJC Civil No.53/2007
by the Principal Judge, Family Court, Durg (CG))
Smt. Mala @ Mela Pradhan W/o Shri Balaram Pradhan Aged
About 35 Years C/o Tirith Ram Lasar, Kirana Store Pisaud, P.S.
Champa, District Janjgir Champa Chhattisgarh
---- Petitioner
Versus
Balaram Pradhan S/o Shri Shatruhan Prasad Pradhan Aged
About 34 Years R/o Sector-4, Road No. 26, Qtr. No. 2/G, Bhilai
Nagar, Tahsil And District Durg Chhattisgarh , Chhattisgarh
---- Respondent
For Appellant Mr. Sunil Otwani, Advocate
For Respondent Mr. Pradeep Rajgir, Advocate
DB.: Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mr. Justice Deepak Kumar Tiwari
Judgment on Board By Goutam Bhaduri, J.
14/3/2022
1. Heard.
2. Challenge in this appeal, filed by the wife/appellant, is
FAM No. 45 of 2015
to the order dated 5.12.2007, whereby, an application under
Section 5 of the Limitation Act, 1963 ( in short "the Limitation
Act") filed in MJC Civil No.53/2007, which was filed to set-aside
the ex-parte judgment and decree dated 22.3.2006 passed in
Civil Suit No.580-A/2005 for grant of divorce, was dismissed.
Consequently, the application under Order 9 Rule 13 of CPC was
also dismissed. To conclude, by such order, the judgment and
decree dated 22.3.2006 passed by the learned Family Court was
affirmed.
3. The brief facts of this case, are that :
(i) the marriage between the appellant and the respondent
took place on 1.5.1996 and out of the wedlock, two children
were born. The parties herein could not go along with their
marriage, therefore, on 21.11.2005, an application under Section
13 of the Hindu Marriage Act, (in short "the Act, 1955"), seeking
divorce was filed. On 5.1.2006, the notices were issued. The
service of acknowledgement of registered post was alleged to
have been received on 2.3.2006 and thereafter, ex-parte
proceedings were drawn. Consequently, ex-parte judgment and
decree was passed on 22.3.2006.
(ii) Against the aforesaid judgment and decree, the appellant
filed MJC bearing No.35/2006 under Order 9 Rule 13 of CPC to
set- aside the judgment and decree dated 22.3.2006. The said
MJC was dismissed in default on 25.9.2006 for want of
prosecution. Thereafter, again, another MJC was filed on
FAM No. 45 of 2015
18.7.2007, which was numbered as 53/2007, being second
application under Order 9 Rule 13 of the CPC along with an
application under Section 5 of the Limitation Act. In the
intermediate proceedings, an application was also filed on
25.10.2007 seeking amendment of the pleadings of the said
MJC, however, it was rejected in the month of November 2007.
Lastly, the application under Section 5 of the Limitation Act was
heard on 5.12.2007 and the same was dismissed resulting in
dismissal of MJC Civil No.53/2007 under Order 9 Rule 13 of CPC.
The judgment and decree dated 22.3.2006 of original case was
challenged before this Court in a First Appeal, however, the said
appeal was dismissed with liberty to challenge the dismissal of
the application under Section 5 of the Limitation Act on
5.12.2007. Consequent thereto, this instant appeal.
4. Learned counsel for the appellant would submit that perusal of
the record would show that gross injustice has been done to the
wife-appellant. He refers to the judgment and decree of the
original case and would submit that the acknowledgement, on
basis of which, an ex-parte proceeding was drawn, do not bear
the signature of the appellant-wife. He would submit that
incidentally, when the ex-parte order was passed, the husband
and wife were occupying the same house and taking advantage
of the above situation, surreptitiously, the husband has
projected the service of summons to the appellant-wife, on
which, the Court below acted. He would further submit that the
averments would reveal that after the judgment and decree was
FAM No. 45 of 2015
passed, the wife was forced to leave the house because of the
assault and she, eventually, had no source of income and had to
take shelter in her parental home at Janjgir-Champa. Thus, the
appellant/wife started residing at District Janjgir-Champa far
away from Durg. Under these circumstances, on account of
paucity of funds, the appellant could not manage and prosecute
her application under Order 9 Rule 13 of CPC and it got
dismissed on 25.9.2006. Thereafter, the second MJC was filed
along with the application under Section 5 of the Limitation Act
narrating the entire details and facts, but the said application
for condonation of delay was dismissed. He would submit that
the Court below failed to take into account the spirit of Section
5 of the Limitation Act and instead was too technical while
deciding the application. Referring to the law laid by the
Supreme Court in the matters of Bhivchandra Shankar More
Vs. Balu Gangaram More and others 1, and Robhin Thapa Vs.
Rohit Dora2, learned counsel for the appellant would submit
that the merit should always be given preference in the likewise
issues and accordingly, the order of the learned trial Court
dated 5.12.2007 may be set-aside.
5. Per contra, learned counsel for the respondent would submit
that the facts show that the wife was reluctant to prosecute her
case. She deliberately failed to appear after filing of the MJC,
therefore, the Court below has no other option except to
1(2019) 6 SCC 387
2 (2019) 7 SCC 359
FAM No. 45 of 2015
dismiss the same. He further submits that the application under
Section 5 of the Limitation Act filed by the appellant would
show that no sufficient cause was given so as to condone the
delay. He would also submit that as per the instruction
received, the husband has remarried after dismissal of the
application under Order 6 Rule 17 of CPC, therefore, this appeal
has lost its efficacy.
6. We have heard learned counsel for the parties and perused the
record.
7. The ex-parte proceeding was drawn by the learned Family Court
in Civil Suit No.580-A/2005. The genesis and nucleus of the
matter arise from the ex-parte proceedings. The first MJC was
filed to set-aside the ex-parte order, but the same was
dismissed for want of prosecution and subsequently, the second
MJC along with the application under Section 5 of the
Limitation Act was filed, but the condonation application was
dismissed. This made us to look into the law laid down by
Hon'ble Supreme Court while adjudicating the application under
Section 5 of the Limitation Act.
8. The Supreme Court in the of matter of Bhivchandra Shankar
More (supra), in para 15, has laid down that "sufficient cause"
should be given liberal construction so as to advance
sustainable justice when there is no inaction, no negligence nor
want of bona fides could be imputed. The Supreme Court has
observed thus in para 15 :
FAM No. 45 of 2015
"15. It is a fairly well-settled law that "sufficient
cause" should be given liberal construction so as to
advance sustainable justice when there is no inaction, no
negligence nor want of bona fides could be imputable to
the appellant. After referring to various judgments, in B.
Madhuri, this Court held as under : (SCC p. 696, para 6)
"6. The expression "sufficient cause" used in Section
5 of the Limitation Act, 1963 and other statutes is elastic
enough to enable the courts to apply the law in a
meaningful manner which serves the ends of justice. No
hard-and-fast rules has been or can be laid down for
deciding the applications for condonation of delay but
over the years courts have repeatedly observed that a
liberal approach needs to be adopted in such matters so
that substantive rights of the parties are not defeated
only on the ground of delay".
9. Further, the Supreme Court in the matter of Robhin Thapa
(supra) observed that ordinarily, a litigation is based on
adjudication on the merits of the contentions of the parties and
we are also of the same opinion that as far as possible the
litigation should not be terminated by default unless and until
blatant negligence is shown.
10. In the light of the aforesaid dictum, we deem it appropriate to
deal with the facts of this instant appeal, which made us to lay
hands to the file of the original judgment and decree.
11. Perusal of the application filed under Section 13 of the Act,
1955 by the husband before the Family Court, would show that
the address of the parties show that both were residents of Qr
No. 2/G, Street No.26, Sector-4, Bhilai Nagar, Tahsil and District
FAM No. 45 of 2015
Durg (CG). Consequently, this fact comes to fore that the wife
and husband were occupying the same residence, wherein the
notices were issued. The acknowledgment shows that the
notice was stated to be served on appellant Mala Pradhan and
bears her signature in Hindi.
12. Learned counsel for the appellant time and again has stressed
upon the fact that the signature in the service report was not of
appellant Mala Pradhan, as she never signs in Hindi. Therefore,
though we may not like to deliberate on this issue at this point
of time, but the question which looms large is whether the
service was effected properly or not. Under this context, when
the application under Order 9 Rule 13 of CPC was filed, after
the ex-parte judgment and decree, the averments made in the
said application would also be relevant. Initially, though the
MJC was filed on 3.5.2006, but consequently, it got dismissed
on 25.9.2006. The wife has made averments that she was
forced to leave the matrimonial house on account of assault
committed by the husband on the ground that ex-parte
judgment and decree of divorce exists in his favour i.e.
husband.
13. The submission of appellant-wife also appears to be logical that
she was forced to leave the house on the ground that the
husband was holding a decree of divorce. This issue, however,
has not been gone into in the second MJC where there was also
an application under Section 5 of the Limitation Act for
condonation of delay. The Family Court disbelieved the said
FAM No. 45 of 2015
averments. As per the law settled by the cases cited above, the
Courts should always try to adjudicate the matter on merits.
There cannot be a straitjacket formula but inferences are
required to be drawn from the facts of the case.
14. In the instant case, the wife alleged that after the appellant
was forced to leave her matrimonial house, she did not have any
means for her survival. She took shelter in her parental home
and was completely dependent on them. The judgment and
decree do not show that any alimony was fixed. Consequently,
the inference can be drawn that the wife was forced to stay at
her parental home. The second MJC though was filed
subsequently along with the application under Section 5 of the
Limitation Act, but was dismissed as barred by limitation. The
order of the Family Court, therefore, appears to be too technical
and has completely short-circuited the issue to go into the
merits.
15. Consequently, following the dictum laid down by Hon'ble the
Supreme Court in the above matters, it is held that the merit
should always be given preference. We do not find any
deliberate negligence when the wife knows the factum to set-
aside a decree of divorce, which was ex-parte.
16. In view of above, we are of the opinion that the order dated
5.12.2007 is required to be set-aside. Accordingly, we set-aside
the order dated 5.12.2007.
17. Considering the time which has passed in between the period
FAM No. 45 of 2015
and looking to the nature of dispute inter se, considering
another bout of litigation on the sideline may continue leaving
the original issue, we deem it proper to allow the application
under Order 9 Rule 13 of CPC and set-aside the judgment and
decree dated 22.3.2006.
18. It is ordered accordingly.
19. The parties shall appear before the trial Court on 25.4.2022 and
the trial Court shall try to adjudicate the issue on merits as
early as possible.
20. The appeal is disposed of.
Sd/- Sd/-
( Goutam Bhaduri) ( Deepak Kumar Tiwari)
Judge Judge
Shyna
