Anil Kumar Choudhary vs Poonam Jaishwal
2025 Latest Caselaw 104 Jhar

Jharkhand High Court

Anil Kumar Choudhary vs Poonam Jaishwal on 5 May, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                                                   [2025:JHHC:13856]



      IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                           C.M.P. No. 391 of 2024
      Anil Kumar Choudhary, aged about 61 years, Son
      of Late Ram Chandra Prasad Shah, Resident of
      H.No.202, Jambu Tower, Sitaramdera, P.O.-Agrico,
      P.S.-Sitaramdera,   Distriet-East    Singhbhum     at
      Jamshedpur.
                                                         .....   ...     Petitioner
                              Versus
      Poonam Jaishwal, Wife of Anil Kumar Choudhary,
      Daughter of Late Raghubansh Prasad Jaishwal,
      Resident of village-Jaishwal Tower, Flat No.203,
      R.B.S.S. Road, Near Gumti No. 3, P.O and PS.-
      Bhikhanpur, , District-Bhagalpur (Bihar)
                                                 .....   ...       Opposite Party
                              --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. P.P.N. Roy, Sr. Advocate.

                              :        Mr. P.A.N. Roy, Advocate.
      For the Sole O.P.       :        Ms. Amrita Sinha, Advocate.
                              :        Mr. Saurabh Raj, Advocate.
                              ------
10/ 05.05.2025     Heard Mr. P.P.N. Roy, learned senior counsel appearing

for the petitioner and Ms. Amrita Sinha, learned counsel appearing

for the sole opposite party.

2. This petition has been filed under Article 227 of the

Constitution of India, wherein prayer has been made for setting aside

the orders dated 12.10.2022 and 13.03.2024, passed in Civil

Miscellaneous Case No. 23 of 2022, by the learned Principal Judge,

Family Court, Jamshedpur, by which, the learned court has been

pleased to admit the petition filed under Order-IX rule-13 read with

Section 151 of the CPC by the sole opposite party and condone the

limitation by the said orders, in view of that the aforesaid two orders

are under challenge herein.

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3. Mr. Roy, learned senior counsel appearing for the

petitioner submits that the petitioner herein instituted a suit, being

Matrimonial Suit No. 64 of 2015 for dissolution of marriage before

the learned Principal Judge, Family Court, East Singhbhum at

Jamshedpur against the sole opposite party filed under Sections

13(1)(i-a)(1-b) of the Hindu Marriage Act. He submits in that case,

the notices were sent to the sole opposite party through the post and

paper publication of notice was also made in the local newspaper

having the circulation in the district of Bhagalpur (Bihar), but the

opposite party has not appeared before the learned court. He then

submits that the learned Principal Judge, Family Court, Jamshedpur

by its judgment dated 15.09.2016 and decree dated 26.09.2016

passed an ex-parte order of divorce and allowed the matrimonial Suit

No. 64 of 2015. He submits that in this background, a petition under

Order-IX Rule-13 read with Section 151 of the CPC was filed being

Civil Misc. Case No. 23 of 2022 by the sole opposite party before the

learned court, which has been admitted by order dated 12.10.2022

and notice was issued and it was posted for 06.12.2022. He submits

that the learned court has erred in admitting the said petition by order

dated 12.10.2022 without condoning the delay and thereafter on

13.03.2024, the learned court has condoned the delay after hearing

both the sides in view of that there is procedural defect and to

buttress his argument, he relied in the case of Paras Nath Keshari

Versus Dwarika Prasad Keshari & Ors., reported in 2008(3) JLJR

298 (Jhr).

4. Relying on the above judgment, he submits that in

absence of providing any opportunity of hearing on the condonation

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petition, the said case was allowed by the co-ordinate bench of this

court.

5. Learned senior counsel further submits that the petition

under Order-IX Rule-13 CPC was not verified by the sole opposite

party, in view of that if the said petition is not verified under Order-

VI Rule-14 and 15 of the CPC that is mandatory provision in the

CPC. He submits that after the divorce, the petitioner has solemnized

the second marriage and after six years of the said divorce, the said

petition has been filed, which is further not maintainable and the ex-

parte order has been passed due to the conduct of the sole opposite

party and to buttress his argument, he relied in the case of A. Raja

Sundari Versus Suresh Kumar, reported in AIR 2016 MADRAS

160.

6. Relying on the above judgment, he submits that the

learned court has further passed the order erroneously, as such, this

petition may kindly be allowed.

7. Per contra, Ms. Amrita Sinha, learned counsel appearing

for the sole opposite party has opposed the prayer and submits that

the learned court has kept the limitation aspect open while admitting

the said petition under Order-IX Rule-13 of the CPC by the order

dated 12.10.2022 and after detailed hearing provided to both the

sides by order dated 13.03.2024, the delay has been condoned and

the learned court has further held that the knowledge of the suit and

its decree prior to 02.09.2022 as contended by the sole opposite party

is concerned, that will be decided while deciding the petition under

Order-IX Rule-13 CPC. She further submits that in view of that there

is no illegality in the impugned order and no prejudice has been

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caused to the petitioner herein.

8. She further submits that the notice upon the sole opposite

party has been served in a criminal case by the High Court, in which,

the quashing of criminal case has been prayed by the petitioner and

the sole opposite party has appeared before this court and in course

of hearing of the said quashing petition, it had transpired to the sole

opposite party that the ex-parte decree has been obtained and

thereafter the sole opposite party has appeared before the learned

court and file a petition under Order-IX Rule-13 CPC. She then

submits that if the prejudice is not caused to the petitioner, the

procedural violation does not seriously cause prejudice to adversary

party as the procedures are handmade and to buttress her argument,

she relied in the case of Sugandhi (Dead) by Legal Representatives

& Anr. Versus P. Rajkumar, represented by his Power Agent Imam

Oli, reported in (2020) 10 SCC 706, where the Hon'ble Supreme

Court in para-9, held as follows:-

"9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should

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take a lenient view when an application is made for production of the documents under subrule (3)."

9. On the same issue, she further relied in the case of Lallan

Rai & Ors. Versus State of Bihar, reported in (2003) 1 SCC 268,

where in para-28, the Hon'ble Apex court has held as follows:-

"28. We, however, hasten to add that in the event, however, there being prejudice leading to a failure of justice, it cannot but be treated to be an illegality, which is otherwise incurable in nature. In one of the early decisions of this Court (Willie (William) Slaney v. The State of Madhya Pradesh - 1955 (2) SCR 1140), the Full Bench declared and settled the law on this score and it seems for all times to come. This Court in a recent decision (Kammari Brahmaiah &Ors. v. Public Prosecutor, High Court of A.P. JT 1999 (1) SC 259) once again reiterated the law so settled by Willie Slaney (supra) in the similar vein and same tune. Incidentally, Willie Slaney (supra) was decided in the year 1955 and on the basis of the then existing Code of 1898, whereas Brahmaiah (supra) has considered the new Code of 1973 and after adumbrating the observations of Willie Slaney, this Court in Brahmaiah observed :

"13. The aforesaid discussion leaves no doubt that non-framing of charge would not vitiate the conviction if no prejudice is caused thereby to the accused. As observed in the aforesaid, the trial should be fair to the accused, fair to the State and fair to the vast mass of the people for whose

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protection penal laws are made and administered. Criminal Procedure Code is a procedural law and is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. In the present case, accused were tried on the prosecution version that all of them went at 3.30 p.m. in the field of the deceased; they picked up the quarrel with him, inflicted injuries to the deceased as narrated by the prosecution witnesses, accused no.3 to 6 participated as stated above; the statements were recorded under Section 313 of the Cr.P.C. and the questions were asked to the effect that they jointly came at 3.30 p.m. and caused injuries to the deceased as stated by the prosecution witnesses and the role assigned to accused no.3 to 6 was also specifically mentioned. Hence, it is apparent that no prejudice is caused to the accused who were charged for the offence under Section 302, by not framing the charge for the offence punishable under Section 302 read with 149. In this view of the matter, the conviction of the accused no.3 to 6 for the offence punishable under Section 325 read with 149 cannot be said to be anyway illegal which require to be set aside."

10. Relying on the above judgment, she submits that the

procedural aspect if not prejudice the case of either of the parties,

that can be ignored for the ends of justice and in view of that the

learned court has rightly passed the order.

11. In view of the above submissions of learned counsel

appearing for the parties, the court has gone through the materials

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available on record and finds that admittedly the ex-parte decree was

passed in favour of the petitioner, who happened to be the husband of

the opposite party. It has not been denied in course of the argument

by the learned senior counsel appearing for the petitioner that one

quashing application being Cr.M.P. No. 1879 of 2012 has been filed

before this court for quashing of the criminal proceeding, in which,

the sole opposite party has appeared and pursuant to that she has

come to know in course of the proceeding of that quashing

application that ex-parte decree of divorce has been passed and

thereafter the sole opposite party has moved before the learned court

by way of filing a petition under Order-IX Rule-13 of the CPC. In

view of that the learned court by order dated 12.10.2022 has been

pleased to admit the petition considering that the authentication fee

along with limitation petition supported with an affidavit was filed

and the learned court found that the said petition was in order and as

such, the notice has been issued and the requisites have been directed

to be filed and the matter was posted for 06.12.2022.

12. Thus, the intention of the learned court is clear from the

order 12.10.2022 that the limitation point is kept open and the notice

in the main petition as well as in the limitation petition has been

issued by the learned court and further the limitation was allowed by

the learned court on 13.03.2024 and that order was passed after

providing full opportunity of hearing to both the sides. The learned

court has also taken note the contention of the petitioner and for the

reasons assigned there, the learned court has been pleased to condone

the said delay and further observed that so far knowledge of filing of

the matrimonial suit by the opposite party and its decree prior to

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02.09.2022 shall be decided while hearing the petition under Order-

IX Rule-13 of the CPC.

13. The court finds that after hearing both the sides, the said

order has been passed by the learned court. The petitioner herein has

surrendered before the jurisdiction of the learned court in deciding

the petition of condonation of delay. This is not the case initially

itself the order dated 12.10.2022 was challenged, whereby the said

petition has been admitted on the limitation point and also on merti

of Order-IX Rule-13 CPC.

14. So far as Order-IX Rule-13 CPC is concerned, it is meant

for setting aside the ex-parte decree and the court should not shut out

cases on mere technicalities, but rather afford opportunity to both the

sides and thrash out the matter on merits. Court cannot let the party

suffer due to negligent or fault committed by their counsel. This

aspect of the matter has been considered by the Hon'ble Supreme

court in the case of Dwarika Prasad (D) through LRs., Versus

Prithvi Raj Singh, reported in 2024 (0) Supreme (SC) 1239, where

in para-9, it has been held as follows:-

"9. We have heard learned counsel for the appellant and perused the record. We are of the opinion that the High Court has erred in upholding the order of the Additional District Judge. The Trial Court had rightly allowed the restoration application filed by the Appellant under Order IX Rule 13 of CPC. It is well settled that Courts should not shut out cases on mere technicalities but rather afford opportunity to both sides and thrash out the matter on merits. Further, we cannot

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let the party suffer due to negligent or fault committed by their counsel. This principle has been enunciated by this court in the case of Rafiq v. Munshilal (1981)2 SCC 788, quoted as follows:

"3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful.

Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even

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if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order....."

15. Coming to the facts of the present case, it has been

pointed out by the learned counsel for sole opposite party that the

communication was made by the counsel, who was conducting the

case of the sole opposite party in the High Court in criminal quashing

petition about ex-parte decree. Thereafter, the opposite party tried to

contact her previous lawyer at Jamshedpur Bar Association.

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However, the opposite party came to know that the concerned lawyer

had died. Thereafter, efforts have been made to obtain the certified

copy through the another lawyer and thereafter all efforts have been

taken to file the petition under Order-IX Rule-13 CPC. In view of

that, it is further well settled that there was no need to file a separate

petition for condonation of the delay and that can be prayed in one

petition itself and the learned court by the impugned order dated

12.10.2022, has admitted the condonation petition as well as the

petition under Order-IX Rule-13 CPC and after providing all

opportunities to both the sides, condoned the delay and the matter

was further posted for hearing on petition under Order-IX Rule-13

CPC, that can be decided after leading evidence of both the sides and

the conclusion can be drawn by the learned court, once both the

parties will complete their evidence in the said petition and that is

the well settled principles of law.

16. Further it is well settled that the provisions appended

under Order-IX Rule-13 CPC postulates that when ex-parte decree

has been passed against some of the defendants and it is necessary to

set aside the entire decree, the court is not powerless to do so, if an

application for setting aside the decree was made at the instance of

the defendant, there is no reason as to why the separate suit is

required to be filed and an ex-parte decree has been passed the

defendant may have more than one remedy, he may file an

application under Order-IX Rule-13 CPC for setting aside the said

ex-parte decree or he may prefer an appeal from the ex-parte

judgment and decree and further in a given case, he may also file a

review application. However, all these remedies are available subject

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to the case of not knowing about the decree in appropriate petition.

That aspect has been kept open in light of the provision under Order-

IX Rule-13 CPC and the petition has not been decided as yet.

17. So far as the argument of Mr. Roy, learned senior counsel

appearing for the petitioner with regard to Order-VI Rules-14 and 15

CPC is concerned, it is settled law that the verification is an

irregularity which does not got to the root of the case and the court

ought to give the parties an opportunity to correct the irregularity by

filing an affidavit or otherwise and it has not jurisdiction to dismiss

the suit, on this ground. If the party does not remove the defect and

persists in the irregularity, it would be open to the court to stay the

suit or reject his plaint as not fulfilling the requirement of law.

However, the suit cannot be dismissed and the irregularity can be

rectified.

18. Further from the record of the present C.M.P., it is not

clear how the notice upon the sole opposite party in the said

matrimonial suit has been received and the satisfaction of the learned

trial court about non-service of notice upon the sole opposite party

and if she is avoiding service, despite repeated efforts by the court is

required to be there.

19. Before dealing with an application under Order-V Rule-

20 CPC, it was the duty of the learned trial court to record its

satisfaction that the sole opposite party was avoiding the service of

notice and for the learned trial court is required to record the

satisfaction of non-service of notice upon the sole opposite party at

her address shown in the plaint.

20. The Hon'ble Supreme Court in the case of "Smt.

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Yallawwa V. Smt. Shantavva, reported in AIR 1997 SC 35 held that

the Trial Court could not have almost automatically granted the

application for substituted service without taking steps for serving

the respondent by ordinary procedure as laid down by Order-V Rules

12, 15 and 17 of the C.P.C. It must be kept in view that substituted

service has to be restored as the last resort when the defendant cannot

be served in the ordinary way and the Court is satisfied that there is

reason to believe that the defendant is keeping out of the way for the

purpose of avoiding service, or that for any other reason the

summons cannot be served in the ordinary way. Evidence has also

not been led on the issue of service of notice. However, all these

aspects are required to be considered in a petition which is kept

pending under Order-IX Rule-13 of the CPC by the learned court and

by way of deciding this petition, only these observations have been

made and these observations will not prejudice the case of either of

the parties in deciding the petition filed under Order-IX Rule-13 CPC

and the learned court will decide the said petition in accordance with

law.

21. So far as the judgment relied by Mr. Roy, learned senior

counsel in the case of Paras Nath Keshari (Supra) is concerned, in

that case, the hearing in the condonation of delay was not provided to

the other side and one right has already accrued in favour of that

party and on that ground, the said case was allowed by the co-

ordinate bench of this court. The facts of the present case is

otherwise, as such, the said case relied by the learned senior counsel

appearing for the petitioner is not helping the petitioner.

22. So far as the case of A. Raj Sundari (Supra), as relied by

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the learned senior counsel appearing for the petitioner is concerned,

in that case, the court has found that the ex-parte decree was passed

due to conduct of negligence by the sole opposite party, thereafter the

marriage has been solemnized by the husband and that fact is lacking

in the case in hand, how the sole opposite party herein was not

negligent in not appearing before the learned trial court. As such, this

case is also not helping the petitioner.

23. In view of the above facts, reasons and analysis, this court

finds that the learned court after condoning the delay, has been

pleased to post the petition filed under Order-IX Rule-13 of the CPC

to decide the same after providing all opportunities to both the sides.

As such, there is no illegality in the impugned order, accordingly, this

petition is dismissed.

24. However, it is made clear that the observations made

hereinabove will not prejudice either of the parties and the learned

court will decide the same in accordance with law without being

prejudiced by this order.

(Sanjay Kumar Dwivedi, J.) Amitesh/-

[A.F.R.]