Kavita Alias Saifali D/O ... vs Pritesh Rajnikant Sheth
2021 Latest Caselaw 16015 Guj

       C/CA/1677/2021                                ORDER DATED: 11/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CIVIL APPLICATION NO. 1677 of 2021

                        In F/FIRST APPEAL NO. 11713 of 2020

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      KAVITA ALIAS SAIFALI D/O VISHVESCHANDRA GUPTA AND W/O
                      PRITESH RAJNIKANT SHETH
                                Versus
                      PRITESH RAJNIKANT SHETH
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Appearance:
BINNI B DESAI(9072) for the Applicant(s) No. 1
MR RAJESH K SHAH(784) for the Applicant(s) No. 1
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
       and
       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                 Date : 11/10/2021

                         ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This is an application at the instance of the appellant [original defendant] seeking condonation of delay of 995 days in filing the appeal against the order passed by the Family Court declining to condone the delay in preferring an application under Order 9 Rule 13 of the Code of Civil Procedure.

2. It appears that the husband of the applicant herein preferred the Hindu Marriage Petition No.8 of 2013 in the Court of the Principal Senior Civil Judge, Dahod for a decree of divorce under Section-13 of the Hindu Marriage Act. The H.M.P. later came to be transferred to the Family Court, Dahod. The Family Suit proceeded

C/CA/1677/2021 ORDER DATED: 11/10/2021

ex-parte as the applicant herein failed to remain present and contest the proceedings. The Family Suit ultimately came to be allowed vide the judgment and decree dated 18th May 2017.

3. The applicant having realized that a decree of divorce has been passed in favour of her husband thought fit to file an application under Order 9 Rule 13 of the C.P.C. to set aside the ex- parte decree. However, there was a delay in filing such application. In such circumstances, the applicant preferred an application for condonation of delay. Such application seeking to get the delay condoned ultimately came to be rejected. It is this order, which is now sought to be challenged by way of First Appeal before this Court. However, in the First Appeal, which is proposed to be filed before this Court, also there is a delay.

4. We are of the view that in the first instance the First Appeal itself is not maintainable and therefore, there is no question of considering the present application seeking condonation of delay. We are saying so because even if the application under Order 9 Rule 13 of the C.P.C. would have been rejected on merits, such order could have been challenged by the applicant by way of an Appeal from Order under the provisions of Order 43 Rule (1)(d) of the C.P.C.

5. We are of the view that the impugned order as sought to be challenged by filing a First Appeal can be challenged by filing a Special Civil Application invoking the supervisory jurisdiction of this High Court under Article 227 of the Constitution of India. We grant

C/CA/1677/2021 ORDER DATED: 11/10/2021

liberty to the applicant to avail appropriate legal remedy before the appropriate forum in accordance with law.

6. With the aforesaid, this Civil Application stands disposed of.

As a result, the appeal would also not survive and the same is also disposed of. We clarify that we have otherwise not expressed any opinion on the merits of the case.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) A. B. VAGHELA