Hiralal Sahu vs Prabha Sahu
2022 Latest Caselaw 6013 Chatt

                                                      FA (MAT) No.171 of 2022

                                  1

                                                                   NAFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                      FA(MAT) No. 171 of 2022

   • Hiralal Sahu S/o Shri Ramkumar Sahu Aged About 35 Years R/o
     Sarsiva Police Station Sarsiva, Tahsil Bilaigarh, District
     Balodabazar Bhatapara (CG)

                                                         ---- Appellant

                              Versus

   • Prabha Sahu W/o Shri Hiralal Sahu Aged About 30 Years R/o
     Sutiurkuli, Police Station Bilaigarh, Dist. Balodabazar Bhatapara
     (CG)

                                                      ---- Respondent




     For Appellant                    : Ms. Supriya Upasane, Advocate



              Hon'ble Shri Justice Goutam Bhaduri &

              Hon'ble Shri Justice Radhakishan Agrawal

                        Judgment on Board

Per Goutam Bhaduri, J.

26/09/2022

Heard.

1. The present appeal is against the order dated 28.07.2022 passed

by Family Court, Balodabazar, District Balodabazar-Bhatapara

(CG) in Misc Civil Suit No.05/2021 whereby an application filed

by the respondent under Order 9 Rule 13 CPC was allowed.

FA (MAT) No.171 of 2022

2. Brief facts of this care are that an ex-parte order granting a decree

of divorce was passed on 11.08.2021 in HMA No.30A/2019 by

the Family Court, Balodabazar. Being aggrieved by such ex-parte

judgment an application under Order 9 Rule 13 CPC was filed by

the wife to set aside the ex-parte order. The wife contended that

on ex-parte proceeding which was on 25.03.2021 on that date she

was indisposed and there was no deliberate reason for her to not

to come and attend the divorce case which was pending. It is

stated that it was after the decree, when the husband wanted to get

the house forcefully vacated and asked the wife to go away, then

only she came to know about the ex-parte proceeding. Thereafter,

immediately an application under Order 9 Rule 13 CPC was filed

to set aside the order. Learned Family Court after evaluating and

giving opportunity to parties to place evidence, set aside the order

and remitted back the matter for adjudication on the merits.

3. Learned counsel for the appellant would submit that the statement

of the wife would show that she deliberately did not attend the

date of hearing and as many as 12 hearings were passed without

any reason, consequently, the setting aside of the ex-parte order

cannot be made only on the mere askance unless sufficient cuase

is shown. She placed her reliance in the case of Subodh Kumar

Vs. Shamim Ahmad {Civil Appeal No.802-803 of 2021, decided FA (MAT) No.171 of 2022

on 03rd of March, 2021} and would submit that under the

circumstances, the ex-parte order dated 28.07.2022 may be set

aside.

4. We have heard learned counsel for the appellant and perused the

documents and the record.

5. According to the statement of wife, respondent herein, the ex-

parte proceedings were drawn on 25.03.2021 and statement of the

wife would show that she has stated that she was ailing on that

date and she could only know the date when the husband came

after ex-parte decree and asked her to vacate the house. In the

cross-examination suggestion was given to her that the

proceeding of maintenance is also pending, wherein she answered

that she requested to keep both the cases i.e. the maintenance and

divorce cases on the same date. She further stated that it is

incorrect to say that she has not enquired about the date of

hearing, however, she has not gone to the residence of her

counsel. Suggestion was also given that date of hearing was

being noticed, against such suggestion she stated that she was not

technically sound to operate such phone to know the date and she

was dependent on her advocate. The similar statements have

been made by one Avantika Sahu (AW-2), the daughter, she also

stated that on 25.03.2021 when the ex-parte proceedings were FA (MAT) No.171 of 2022

drawn she was not well and because of such fact they could not

attend the date.

6. In a proceeding of divorce, it would always be better if the cases

are decided on merits, there are chances of reconciliation too,

which may occur during the hearing. The reason which is been

assigned that on 25.03.2021 the wife was not well and could not

appear, the statements have been made on oath and we are of the

opinion too that the cases of the like nature the Court should not

adopt the hyper technical view and it is always better that the

cases are adjudicated on merits. Therefore, the reason which has

been assigned by the respondent appears to be reasonable and we

do not find any extraordinary circumstances to interfere with the

order dated 28.07.2022, whereby the ex-parte judgment and

decree for grant of divorce was set aside and the parties were

relegated to contest the case on merit before the Family Court.

Consequently, we decline to interfere with the order dated

28.07.2022.

7. In a result, the appeal fails and is dismissed.

           Sd/-                                                         Sd/--

       (Goutam Bhaduri)                               (Radhakishan Agrawal)
           Judge                                                 Judge
ashu