Smt. Pushpa Devi vs Santoshi Lal Sharma
2021 Latest Caselaw 5499 MP

                    High Court of Madhya Pradesh       (1)
                           FA No. 217 of 2015
              Smt. Pushpa Devi vs. Santoshi Lal Sharma

Gwalior, Dated 16/09/2021
      Heard through hybrid system of physical/virtual hearing.

      Shri Ashish Saraswat, learned Counsel for appellant/wife.

      Shri Madhu Sudan Shrivastava, learned Counsel for respondent/

husband.

                                ORDER

Per Deepak Kumar Agarwal, J:-

Appellant-wife has preferred this First Appeal u/S.19 of Family

Courts Act, assailing the order dated 24/07/2015 passed by Principal Judge,

Family Court Morena in Case No.20/2014 (HMA) rejecting the application

filed by her under Order 9 Rule 13 r/w Section 151 CPC, seeking setting

aside of ex parte judgment and decree dated 16/03/2011 passed by Third

Additional District Judge, Morena in Case No.03/2010 (HMA).

(2) It is not in dispute that the appellant is the legally-wedded wife of the

respondent. Their marriage was solemnized as per the Hindu rights and

rituals in 1970 and they were having two sons and two daughters. Presently,

the appellant is living separately from her husband/respondent.

(3) It is the case of respondent that he had filed a divorce petition u/S.

13-A of the Hindu Marriage Act, 1955 [in short '' HMA'' ] before Third

Additional District Judge, Morena on 11/01/2010 and in absence of

appellant/wife as well as her counsel, an ex parte judgment and decree was

passed in favour of respondent/husband on 16/03/2011 and the marriage High Court of Madhya Pradesh (2) FA No. 217 of 2015 Smt. Pushpa Devi vs. Santoshi Lal Sharma

between the parties was dissolved. Being aggrieved by the same,

appellant/wife filed a restoration application under Order 9 Rule 13 r/w

Sec.151 CPC for setting aside of ex parte judgment and decree dated

16/03/2011, on the ground that her advocate Shri Vishnu Kumar Maheshwari

had assured her that she is not required to come to the Court on each date

and he will call her as and when required. During pendency of the case, the

wife of her Advocate Shri Vishnu Maheshwari, suffered from cancer due to

which, her Advocate Shri Maheshwari had to remain out of Morena for the

purpose of treatment of his wife. After the death of wife of her Advocate

Shri Vishnu Maheshwari, when she came to her Advocate's Office, she came

to know that an ex parte judgment and decree has been passed in favour of

the respondent on 16/03/2011. In support of application filed under Order 9

Rule 13 r/w Sec.151 CPC before the Family Court, the appellant filed an

affidavit of Ramprakash Sharma, Stamp Vendor under Order 18 Rule 4 CPC.

(4) Per contra, the respondent by filing reply to the application under

Order 9 Rule 13 r/w Sec. 151 CPC, stated that the brother of his

wife/appellant, namely, Omprakash Pathak is doing advocacy with advocate

Shri Vishnu Maheshwari, therefore, the brother of appellant had full

knowledge about the case. The appellant is not vigilant in pursuing her case.

Even after contacting her Advocate on 05/04/2011 about the status of her

case, the appellant is making a false story that she did not know about ex

parte judgment and decree passed on 16/03/2011. It is further stated that he

had neither given any mental or physical harassment to his wife nor he had High Court of Madhya Pradesh (3) FA No. 217 of 2015 Smt. Pushpa Devi vs. Santoshi Lal Sharma

turned out his wife from his house. His wife is a quarrelsome lady and is

living separately according to her own will and volition. On the date of

passing of ex parte judgment and decree, his wife remained absent without

any sufficient reason. The appellant had full knowledge and was aware of

the case filed against her and she willfully did not put in her appearance

leading to ex parte judgment and decree passed in his favour.

(5) Learned Counsel for the appellant submits that the Trial Court has

committed a material irregularity in rejecting the restoration application filed

by the appellant for setting aside ex parte judgment and decree and has not

properly considered the oral evidence of the appellant, therefore, the party

like appellant should not be made to suffer on the fault of her counsel. Thus,

her application under Order 9 Rule 13 r/w Sec. 151 CPC may be allowed

and ex parte judgment and decreed dated 16/03/2011 passed by Third

Additional District Judge, Morena, may be set aside.

(6) On the other hand, learned Counsel for the respondent by supporting

the impugned order, prays for dismissal of this appeal.

(7)    Heard the learned Counsel for the parties.

(8)    The question for determination of this appeal is as to whether the

appellant has proved sufficient cause for her non-appearance on 31/1/2011

or not ?

(9) Before the Family Court, in support of her application filed under

Order 9 Rule 13 r/w Sec. 151 CPC, the appellant/wife has narrated that a

divorce petition bearing Case No.03/2010 filed by her husband/respondent High Court of Madhya Pradesh (4) FA No. 217 of 2015 Smt. Pushpa Devi vs. Santoshi Lal Sharma

was pending. Her Advocate Shri Vishnu Maheshwari assured her not to

come to the Court on each date and he will call her as and when required.

Subsequent thereto, she relied upon the assurance given by her Advocate. On

05/04/2011, when she had gone to the Office of her Advocate, Shri Vishnu

Maheshwari, she came to know that the wife of her Advocate was suffering

from cancer, and therefore, he had to remain out of Morena for her

treatment, thus, her Advocate could not inform her about the status of her

case and the same was decided due to non-appearance and an ex parte

judgment and decree was passed on 16/03/2011. On the said date, she

applied for certified copy of ex parte judgment and decree through an

Advocate Shri Shyamsunder Sharma and obtained the copy of same on

07/04/2011. After receipt of certified copy of the same, she filed a

restoration application under Order 9 Rule 3 r/w Sec.151 CPC for setting

aside the ex parte judgment and decree on 11/04/2011. In para 7 of her

cross-examination, the appellant/ wife denied that her brother Omprakash

Pathak is doing advocacy with Shri Vishnu Maheshwari. She also denied

that junior advocate Shri Jitendra Singh also used to sit with Shri Vishnu

Maheshwari. It is further admitted that in Vaklatnama although the names of

Omprakash Pathak and Jitendra Singh were mentioned, but it did not contain

their signatures. It is further admitted that she came to know about the status

of her case from her advocate's Office Shri Vishnu Maheshwari on

05/04/2011. In paragraph 9 of her cross-examination, the appellant admitted

that she is living separately for the last 20 years from her husband/ High Court of Madhya Pradesh (5) FA No. 217 of 2015 Smt. Pushpa Devi vs. Santoshi Lal Sharma

respondent Santoshi Lal Sharma. So far as the cause for non-appearance of

her Advocate Shri Vishnu Maheshwari on the date of hearing i.e. 31/01/2011

on the ground that his wife was suffering from cancer is concerned, the same

remains unchallenged.

(10) Further, in support of her evidence, the appellant has filed an affidavit

of Ramprakash Sharma, Stamp Vendor under Order 18 Rule 4 CPC, who

narrated that the appellant's husband filed a divorce petition before Third

Additional District Judge, Morena which was pending and in his presence,

the appellant had engaged Shri Vishnu Maheshwari as her Advocate for

prosecuting her case and Shri Vishnu Maheshwari assured her not to come to

the Court on each date and he will call her as and when required. During

pendency of the case, the wife of Shri Vishnu Maheshwari died because of

cancer during treatment outside Morena, therefore, he could not inform the

appellant/wife regarding the status of her case. When she came to the Court

on 05/04/2011, she came to know that an ex parte judgment and decree has

been passed against her. Thereafter, she applied for certified copy of the

same through an Advocate Shyamsunder Sharma and the same was obtained

on 07/04/2011. Afterwards, he filed a restoration application on 11/04/2011.

In para 7 of cross-examination, it is admitted by Stamp Vendor Ramprakash

Sharma that wife of Shri Vishnu Maheshwari was suffering from cancer

since 2010-2011 due to which, he could not able to attend the Court. He

admitted that the brother of appellant Omprakash Pathak is an advocate and

working as associate of Shri Jitendra Singh Gurjar and Shri Vishnu High Court of Madhya Pradesh (6) FA No. 217 of 2015 Smt. Pushpa Devi vs. Santoshi Lal Sharma

Maheshwari. He denied that on each date of hearing, the appellant used to

come to the Office of her Advocate and sit in the Chamber of her Advocate

Shri Vishu Maheshwari. This witness denied that he is giving any false

evidence at the behest of appellant. So far as the other evidence is

concerned, the same remains unchallenged.

(11) In para 11 of his cross-examination, the respondent admitted that

appellant is his legally-wedded wife and from their wedlock, four children

were born and remained with him till 1993. Thereafter, he used to live at

Shivpuri. He is retired from service on 31/01/2005. He admitted that after

his retirement, he used to live at Morena and at that time, his wife was not

living with him. He did not oust his wife from his house. She left the house

on the influence of her brother Omprakash Pathak. The respondent admitted

that Omprakash Pathak is his brother-in-law, but denied that he has any

inimical terms with him. He admitted that Vishnu Maheshwari was the

lawyer of appellant, but he has no knowledge that the wife of Vishnu

Maheshwari was suffering from cancer. He has no knowledge that the wife

of Vishnu Maheshwari was undergoing treatment of cancer at Pune/Mumbai.

He did not know the names of associates of Advocate Shri Vishnu

Maheshwari.

(12) Keeping in view the evidence adduced by the appellant/wife, her

witness Ramprakash Sharma, Stamp Vendor as well as the cross-

examination of the respondent/ husband, it is clear that appellant had

engaged Shri Vishnu Maheshwari as her lawyer for prosecuting her case in High Court of Madhya Pradesh (7) FA No. 217 of 2015 Smt. Pushpa Devi vs. Santoshi Lal Sharma

the divorce petition filed by her husband/respondent, who had assured her

not to come to the Court on each date of hearing and he will call her as and

when required. It is true that the appellant did not produce Advocate Shri

Vishnu Maheshwari but in general, the Lawyers in family matters/disputes

do not call their parties on each date and they are called when it is required

for recording of their evidence before the Court. So far as the evidence of the

appellant that the wife of her Advocate Shri Vishnu Maheshwari died

because of suffering from cancer for whose treatment, her advocate Shri

Vishnu Maheshwari had gone out of Morena is concerned, the same remains

unchallenged. The ex parte judgment and decree was passed on 16/03/2011

and after obtaining certified copy of same on 07/04/2011, the appellant on

11/04/2011 had filed a restoration application under Order 9 Rule 13 r/w

Sec. 151 CPC for setting aside ex parte judgment and decree i.e. within a

period of one month. In the interest of justice, after affording an opportunity

of hearing to both the rival parties, the learned Family Court should have

decided the matter. In the present matter, the appellant is 57 years old lady

and could not be made to suffer on the fault of her counsel. She has given

sufficient cause/reason for non-appearance of her/her counsel before the

Court concerned whereby an ex parte judgment and decree has been passed

against her.

(13) Looking to the evidence available on record coupled with the fact that

in the interest of justice, one more opportunity should have been given to the

appellant/wife to defend her case before the Court below, it appears that the High Court of Madhya Pradesh (8) FA No. 217 of 2015 Smt. Pushpa Devi vs. Santoshi Lal Sharma

learned Family Court has committed an error in rejecting the restoration

application filed under Order 9 Rule 13 r/w Sec.151 CPC for setting aside ex

parte judgment and decree passed by Court below.

(14) In view of above, the order dated 24/07/2015 passed by Principal

Judge, Family Court, Morena in Case No.20/2014 (HMA) rejecting the

application filed by appellant/wife under Order 9 Rule 13 r/w Sec. 151 CPC

seeking setting aside of ex parte judgment and decree dated 16/03/2011

passed by Third Additional District Judge, Morena in Case No.03/2010

(HMA) is set aside and the application filed by appellant/ wife under Order

9 Rule 13 r/w Sec. 151 CPC for setting aside of ex parte judgment and

decree is allowed. In view of aforesaid, the trial Court (Third Additional

District Judge, Morena) is directed to decide the divorce petition filed by

respondent/husband after affording an opportunity of hearing to both the

rival parties, as per law.

(15) In the result, present appeal stands Allowed.

                   ( Sheel Nagu)                                        (Deepak Kumar Agarwal)
                        Judge                                                    Judge



MKB


  MAHENDRA      Digitally signed by MAHENDRA KUMAR BARIK
                DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
                GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH

GWALIOR, postalCode=474011, st=Madhya Pradesh,

KUMAR BARIK 2.5.4.20=f592da990684fe30f8e1e29a4a1a9e3451ee450d8830 83a8e4cc8020eee6f7cb, cn=MAHENDRA KUMAR BARIK Date: 2021.09.22 10:45:49 +05'30'