Sri B S Deepak vs Smt T S Vidya
2022 Latest Caselaw 242 Kant

                          1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF JANUARY, 2022

                      PRESENT

        THE HON'BLE MRS. JUSTICE S. SUJATHA

                        AND

       THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

              M.F.A.NO.6417 OF 2021 (FC)

BETWEEN:

SRI. B.S.DEEPAK
S/O SIDDANANJA SETTY
AGED ABOUT 42 YEARS
R/A NO.46, "SRI SHIVAGIRI"
3RD MAIN, 2ND STAGE,
BINNY LAYOUT (ATTIGUPPE)
VIJAYANAGAR, BENGALURU-560 040.            ...APPELLANT

[BY SMT. LAVANYA RAMESHA, ADVOCATE]

AND:

SMT. T.S.VIDYA
W/O B.S.DEEPAK
AGED ABOUT 35 YEARS
W/O SRI. B.S.DEEPAK
#15, SYLVAN GROVE, SHIRLEY
SOLIHULL, WEST MIDLANDS
B90 3SG, UNITED KINGDOM.

REPRESENTED THROUGH HER
FATHER AS A GPA HOLDER
SRI. SRINIVASAN T.G.
S/O LATE T.S.GURUSIDDASETTY
AGED ABOUT 63 YEARS
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R/AT NO.236, 1ST STAGE, 2ND BLOCK
JSS PUBLIC SCHOOL ROAD
HBR LAYOUT, BENGALURU-560 043.
                                                    ...RESPONDENT

      THIS M.F.A IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, AGAINST THE ORDER DATED
11.12.2020, PASSED IN MISC. NO.109/2019, ON THE FILE
OF THE PRINCIPAL JUDGE, FAMILY COURT, BENGALURU,
ALLOWING THE PETITION FILED BY THE PETITIONER U/O
9 RULE 9 R/W SEC.151 OF CPC.

     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, S. SUJATHA J., DELIVERED THE FOLLOWING:


                        JUDGMENT

This appeal is filed by the appellant challenging

the order dated 11.12.2020 passed in

Misc.No.109/2019 whereby the Family Court,

Bengaluru has allowed the Misc.P.No.109/2019 filed by

the respondent herein, under Order IX Rule 9 read with

Section 151 of Code of Civil Procedure, 1908 restoring

M.C.No.88/2018, setting aside the order dated

07.08.2019 of dismissing the petition in

M.C.No.88/2018.

2. The General Power of Attorney (GPA) holder

of the respondent herein has filed the said petition

contending that the respondent had come to Bengaluru

from United Kingdom (UK), as the matter was posted on

07.08.2019. On that day, she could not attend the case

due to jetlag and a request was made through her

counsel for a short adjournment. But, however, the

same came to be rejected and the petition came to be

dismissed on 07.08.2019 for non-prosecution against

which Misc.Petition No.109/2019 was filed. The Family

Court having considered the ground urged in

Miscellaneous Petition and the facts and circumstances

of the case, has allowed the said miscellaneous petition.

Hence, this appeal by the appellant.

3. Learned counsel Smt. Lavanya Ramesh,

appearing for the appellant would submit that no

reasonable opportunity was provided to the appellant to

file objections to miscellaneous petition and no

procedural aspects required to follow during COVID-19,

as per the SOP operating was complied with. Impugned

order being passed in violation of the principles of

natural justice deserves to be set aside. Respondent

merely having filed the petition for restitution of

conjugal rights is not intending to come and join the

appellant at Bengaluru. On the other hand, she is

expecting the appellant to leave his mother who lost her

husband recently and to join her at UK, which is not

agreeable for the appellant.

4. Learned counsel would further submit that

the appellant is ready to accept her, if she is willing and

staying with him at Bengaluru. But despite best efforts

made in this regard, no fruitful results have been

arrived at. It is submitted that the order impugned

passed without following due procedure is unjustifiable

and requires to be set aside.

5. We have heard the learned counsel

appearing for the parties and perused the materials on

record.

6. As could be seen from the material available

on record, it is not in dispute that on 07.08.2019 when

the matter was listed for evidence and objections to

I.A.No.2, the respondent was not present and an

adjournment was sought by the learned counsel

appearing on behalf of the respondent. The matter was

all over represented by the father of the respondent.

Having found satisfied with the bonafide reasons offered

by the respondent for not having present before the

court on 07.08.2019, which indeed was not due to

negligence, the Family Court having found that no

prejudice would be caused to the appellant herein, in

allowing the miscellaneous petition, proceeded to pass

the order impugned allowing the application.

7. The reasons assigned by the Family Court

based on the decision of the Hon'ble Apex Court in the

case of Collector, Land Acquisition, Anantnag &

Another V/s. Mst. Katiji & Others reported in AIR

1997 SC 1353, that too in a matter relating to the

restitution of conjugal rights and the view taken by the

Family Court cannot be held to be unsustainable. In

restoring M.C.No.88/2018 on the file of the Court could

not cause any grave injustice or failure of justice to the

appellant. Appellant has got all rights to contest the

case. In such circumstances, merely on hyper-technical

grounds that no procedural aspects have been followed

by the Family Court in stricto sensu, the order cannot

be set aside.

8. Having considered the totality of the

circumstances, the order passed by the Family Court

cannot be found fault with. Appeal stands dismissed.

In view of the dismissal of the appeal all the

pending applications stand disposed of accordingly.

Sd/-

JUDGE

Sd/-

JUDGE BVK