Neelam Kapoor vs Vijay Kapoor
2021 Latest Caselaw 3457 HP

        IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                                              CMPMO No. 492 of 2016
                                           Decided on: August 3, 2021




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    Neelam Kapoor                                 ................Petitioner
                                  Versus

    Vijay Kapoor                                    ..........Respondent





    __________________________________________________________________
    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge
    Whether approved for reporting? 1
    __________________________________________________________________





    For the petitioner     Mr. Ramakant Sharma and Mr. Bhuvnesh
                           Sharma, Advocates.

    For the respondent                   Mr. Ashwani Pathak, Senior Advocate with
                                         Mr. Sandeep Sharma, Advocate.


    Sandeep Sharma, Judge (Oral):

2. Being aggrieved and dissatisfied with order dated

22.9.2015, passed by learned Additional District Judge-II Mandi,

District Mandi, Himachal Pradesh (Sarkaghat Circuit Court), whereby

an application under Order IX, rule 13 CPC, having been filed by

the applicant/petitioner hereinafter, (applicant) praying therein to set

aside the ex parte judgment and decree dated 12.3.2009 passed in

HMA Petition No. 10 of 2008 came to be dismissed, petitioner has

approached this court in the instant proceedings under Art. 227 of

the Constitution of India, praying therein to set aside impugned

order.

Whether reporters of the local papers may be allowed to see the judgment?

3. Learned counsel for the non-applicant/respondent while

referring to order 43(d) CPC, states that the present petition is not

.

maintainable as such, same may be dismissed accordingly.

4. Having carefully perused the provisions contained under

Order XLIII, rule 1(d), this court finds that there is

provision of appeal to lay challenge to order, if any, passed on

an application under Order IX rule 13 CPC, as such, present petition

in the form of petition under Art. 227 of the Constitution of India is

not maintainable and as such, same deserves to be set aside.

5. This court finds from the record that before filing the

petition at hand, petitioner had approached this court by way of an

appeal, laying therein challenge to judgment and decree dated

12.3.2009 passed by learned court below in a divorce petition having

been filed by the respondent, but since

there was a delay in filing the appeal, an application under S.5

of Limitation Act was filed. Order dated 28.9.2016 passed by a

coordinate Bench of this court (Annexure P-3) reveals that the

application for condonation of delay being CMP(M) No.

1735 of 2015 was withdrawn by the counsel representing petitioner

with liberty to file appropriate petition for assailing impugned order.

After passing of aforesaid order by Coordinate Bench of this

court, petitioner again instead of filing an appeal under Order XLIII,

rule 1(d) CPC, has approached this court in a petition under Art. 227

of the Constitution of India, laying therein challenge to order dated

22.9.2015 passed by learned court below praying therein to set aside

ex parte judgment and decree dated 12.3.2009.

.

6. More than 11 years have passed after passing of

judgment and decree dated 12.3.2009 but till date, petitioner has not

been able to get the judgment and decree set aside by filing

appropriate proceedings in appropriate court of law, as such

entertaining the instant petition under Art. 227 Constitution of India

at this stage, would amount to sheer abuse of process of law.

7. Consequently, the present petition is dismissed being not

maintainable, alongwith all pending applications. Interim order, if

any, shall stand vacated.

8. Shri Ramakant Sharma, learned counsel for the

petitioner states that a meager amount has been awarded by learned

court below as maintenance to the petitioner and her children, as

such, appropriate orders may be passed. Aforesaid prayer made on

behalf of learned counsel for the petitioner cannot be entertained in

the instant proceedings. Needless to say, the petitioner is always at

liberty to approach learned court below in appropriate proceedings,

for maintenance.

(Sandeep Sharma) Judge August 3, 2021 (vikrant)