Chattisgarh High Court
Jasveer Kaur vs Gurmel Singh Saini on 11 August, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
Digitally
signed by
RAVVA
UTTEJ
KUMAR RAJU
2025:CGHC:40039-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA(MAT) No. 365 of 2024
Jasveer Kaur Wd/o Late Baldev Singh Gunna aged about 65 years, R/o Govind Nagar,
House No. 9/1, City Station, Pandri, Tehsil and District- Raipur, (C.G.)
... Appellant
Versus
Gurmel Singh Saini S/o Late Gurucharan Singh Saini aged about 60 years, R/o Farmer
House, in front of Bank of Baroda, Shyam Nagar, Main Road, Telibandha, Ravigram, Tehsil
and District- Raipur (C.G.)
... Respondent
For Appellant : Mr. Arpan Verma, Advocate.
For Respondent : None.
Hon'ble Smt. Justice Rajani Dubey, J.
Hon'ble Shri Justice Amitendra Kishore Prasad, J.
Judgment on Board
Per Rajani Dubey, J.
11.08.2025
1. Heard learned counsel for the appellant on admission.
2. This appeal is filed by the appellant/applicant against the
impugned judgment dated 14.06.2024 passed by learned
First Additional Principal Judge, Family Court, Raipur,
(C.G.) in CMC No. 121/2022, whereby the learned Family
Court has allowed the application of respondent filed
under Order 9 Rule 9 read with Section 151 of CPC.
3. Brief facts of the case as adumbrated by the appellant is
that the respondent has preferred a plaint against the
present applicant for declaration of the engagement
between the parties as null and void to return back the
money received as maintenance by wife despite not being
married. The plaint preferred by the respondent is
completely baseless and without any substance and the
same has been preferred just to misuse the remedy
available to him and to harass the applicant and the
respondent is very well aware of the relief which he is
seeking in his plaint as it would not be granted by the
learned trial Court as there is no evidence available with
him regarding his claim, therefore he had intentionally
started to not appear before the Court and remained
absent on various dates. On 19.07.2022, the matter was
again listed for the recording of the evidence, and the
present applicant was present on the said date but the
respondent has submitted the condonation application for
absence before the court on the ground that he was
suffering from COVID-19, whereby his medical report was
produced before the Court in which it was stated that the
respondent was tested COVID-19 positive and he has
been in the isolation as per the direction of the
government.
4. Learned trial Court after going thoroughly to the medical
report produced by the respondent regarding COVID-19,
found that the blood sample of the respondent was taken
on 02.07.2022 and the result of the said sample was
given on the same date i.e., 02.07.2022 whereby it has
been found that the respondent is suffering from COVID-
19 positive. It was also observed by the learned trial Court
that on 19.07.2022 the matter was listed for recording of
the evidence and total 17 days has been passed since the
report of COVID-19 came positive of the respondent, as
per the government guidelines/directions only 14 days of
isolation is mandatory for a person to recover, as such it
is evident that the respondent was intentionally not
making his appearance before the Court just to avoid
giving the maintenance to the applicant and subsequently
the application for condonation of absence was rejected
by the learned Family Court and the matter was dismissed
for want of prosecution on 19.07.2022. Thereafter, the
respondent has preferred an application on 18.08.2022
under Order 9 Rule 9 read with Section 151 of Code of
Civil Procedure for restoration of case No. 40/2014. The
present applicant/appellant has also filed reply the said
application on 03.07.2023, but the said reply of the
present appellant/applicant was not considered by the
learned Court and the application preferred by the
respondent for the restoration was allowed on 14.06.2024
vide Annexure A/4. Hence, this appeal preferred by the
appellant.
5. Learned counsel for the appellant/non-applicant submits
that the impugned order is illegal, erroneous and contrary
to law. The learned Family Court has committed material
irregularities and illegalities while considering the
application under Order 9 Rule 9 read with Section 151 of
CPC and the plant preferred by the respondent are
baseless and without any substance, where the
respondent has no possibility to get any relief from the
learned court and to prevent the outcome of the matter
the respondent deliberately did not appear before the
Court. The respondent has not produced any documents
relating to his medical treatment in isolation, the
complete ground taken on the part of medical treatment
is completely misleading and without any substance.
Apart from the COVID-19 report no other documents were
produced by the respondent regarding the medical
treatment taken by him nor any report was produced
where it can be shown that the respondent need to take a
bed rest even after completing the isolation period. The
learned Family Court on order dated 19.07.2022 passed in
case No. 30/2021 by correctly dismissing the case of
respondent considering the material on record and also
considering the act of being absent before the court
intentionally. The reply of applicant was not considered by
the learned Court while passing the impugned order. The
respondent has failed to show sufficient cause for their
non-appearance on the date of dismissal, as required
under Order 9 Rule 9 of CPC. The respondent has history
of non-appearance or delaying tactics in the case, which
shows a pattern of disinterest or lack of diligence. The
reasons provided by the applicant/respondents for their
absence are frivolous, vague, or not supported by any
credible evidence. The respondent has not provided any
sufficient or credible medical evidence to support the
claim of illness or incapacity on the date of non-
appearance. As such, the impugned order is liable to be
set aside.
6. We have heard learned counsel for the appellant and
perused the material available on record including the
impugned order dated 14.06.2024 passed by the learned
trial Court.
7. It is clear from document filed by respondent Gurmel
Singh in Civil Suit against both the appellants for
declaration before the learned Family Court which was
registered as Civil Suit No. 40/2014. As per order sheet
filed by the appellant on 19.07.2022, the respondent
herein did not appear before the learned Family Court and
application was filed by the applicant on this ground that
he has tested COVID -19 positive and he is in home
isolation. However, the learned trial Court finds that the
application is not bona fide and dismissed the application
for non-appearance and also dismissed the case of
respondent in default. The respondent filed application
under Order 9 Rule 9 on 18.08.2022 for restoration of civil
suit and the learned trial Court after hearing both the
parties allowed the application of respondent and suit No.
40/2014 was restored to its original number and case was
fixed for further proceedings on 16.07.2024.
8. The main objection of the appellant is that the learned
trial Court did not appreciate documents filed by
appellant and allowed the application of the respondent
without any bona fide reason. So, the impugned order
dated 14.06.2024 is liable to be set aside.
9. Order 9 Rule 9 of the Code of Civil Procedure, 1908 is
provided as under:-
Appearance of Parties and Consequence of non-
appearance
9. Decree against plaintiff by default
bars fresh suit.- (1) Where a suit is wholly
or partly dismissed under rule 8, the plaintiff
shall be precluded from bringing a fresh suit
in respect of the same cause of action. But
he may apply for an order to set the
dismissal aside, and if he satisfies the Court
that there was sufficient cause for his non-
appearance when the suit was called on for
hearing, the Court shall make an order
setting aside the dismissal upon such terms
as to costs or otherwise as it thinks fit, and
shall appoint a day for proceeding with the
suit.
(2) No order shall be made under this rule
unless notice of the application has been
served on the opposite party.
10. The learned trial Court finds that on 19.07.2022, the
respondent filed application for his non-appearance and
also filed medical documents, so the learned trial Court
finds that the absence of respondent is bona fide and
allowed the application of the respondent filed under
Order 9 Rule 9 of CPC. It is also clear from the documents
filed by the appellant therein that the case was dismissed
by the learned trial Court on 19.07.2022 and the
application for restoration was filed by the respondent on
18.08.2022. As such, it is clear that without any long
delay the application was filed by the respondent. The
learned trial Court observed in para 8 of the impugned
order which reads as under:-
"8. vkosnd xqjesy flag lSuh }kjk vkosnu ds leFkZu esa "kiFki= izLrqr
fd;k x;k gSA ,e-ts-lh= 30@2021 xqjesy flag lSuh fo:} tlchj dkSj ds
vfHkys[k ds ifj"khyu ls nf"kZr gS fd fnukad 19-07-2022 dks vkosnd dh
vksj ls izLrqr gkftjh ekQh vkosnu esa vkosnd dk dksfoM&19 ls xzflr ,ao
vkblksys"ku esa gksuk mYysf[kr gSA ;g Lfkkfir fof/k gS fd izdj.k dk
xq.k&nks'k ds vk/kkj ij fujkdj.k fd;k tkuk pkfg,A vkosnd dk izdj.k dh
lquokbZ fnukad 19-07-2022 dks vuqifLFkr jgus dk ln~Hkkfod dkj.k nf"kZr
gksrk gSA"
11. We did not find any illegality or irregularity in the said
order, so this appeal filed by the appellant, the same is
liable to be and is hereby dismissed at admission stage
itself without issuing any notice to the other party.
Sd/- Sd/-
(Rajani Dubey) (Amitendra Kishore Prasad)
Judge Judge
U. K. Raju
