Smt.Sangita vs Anil Bendewar
2023 Latest Caselaw 13028 MP

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                ON THE 10 th OF AUGUST, 2023
                                                MISC. APPEAL No. 160 of 2005

                           BETWEEN:-
                           SMT.SANGITA, AGED ABOUT 30 YEARS, W/O SHRI ANIL
                           BANDEWAR, R/O IN FRONT OF MAHARAJPUR POLICE
                           STATION, MANDLA. AT PRESENT R/O HOUSE No. 447,
                           HOUSE OF SHRI NARESH SHRIVAS, SUDAMA NAGAR,
                           MANPUR. P.S. MADANMAHAL, JABALPUR DISTRICT
                           JABALPUR (M.P.).

                                                                                           .....APPELLANT
                           (NONE )

                           AND
                           ANIL BENDEWAR, AGED ABOUT 32 YHEARS, S/O LATE
                           SHRI JAWAHARLAL, R/O WARD No. 6, NAI AWADI,
                           CHHINDWARA, TEHSIL & DISTRICT CHHINDWARA
                           (M.P.).

                                                                                         .....RESPONDENT
                           (NONE )

                                 This appeal coming on for final hearing this day, the court passed the

                           following:
                                                              ORDER

This Misc. Appeal is filed under Order 43 Rule 1 (c) of CPC, being

aggrieved of the order dated 17.12.2004 passed by learned 2nd Addl. District Judge, Chhindwara in Misc. Civil Case No. 03 of 2003 (Smt. Sangeeta Vs. Anil) whereby learned trial Court refused to allow the application under Order 9 Rule 13 CPC.

Brief facts of the present case are that, the civil suit bearing No. 5-A of 2002 was filed in that suit ex-parte judgment and decree was passed on Signature Not Verified Signed by: AMITABH RANJAN Signing time: 11-08-2023 11:42:22

25.07.2002. An application under Order 9 Rule 13 CPC was filed on the ground that the applicant/appellant had filed an application for restitution of conjugal rights by filing a Suit No.39-A/2002 in the Court of learned District Judge, Mandla. That case was fixed for filing of written statement on 12.03.2003. In that case, non-applicant had filed an application that on 25.07.2002 his application for seeking divorce was allowed i.e. the starting point of knowledge of the decree of divorce and therefore, she visited Chhindwara, contacted her counsel on 25.03.2003 and filed an application for setting aside the judgment and decree dated 25.07.2002.

Learned trial Court has recorded a finding that appellant in her cross-

examination admitted that after death of her father in the month of April, 2002 she was residing in his hose. She was receiving all the letters addressed to her father or sent on the said address. She admitted that correct address is mentioned on the envelop Ex.D-1 and acknowledgement Ex-D-2. Though she deposed that she was visiting her sister at Jabalpur but she did not produced them in the witness box to adduce evidence. She could not even proved the date of visit to Jabalpur and under such facts and circumstances, presuming the service to be a valid service on the basis of which ex-parte proceedings were drawn, learned trial Court refused to entertain the application for setting aside the ex-parte decree.

At this distance of time, no indulgence is required to be shown. There is no illegality in the impugned order, calling for interference. Appeal fails and is dismissed.

(VIVEK AGARWAL) Signature Not Verified Signed by: AMITABH RANJAN Signing time: 11-08-2023 11:42:22

JUDGE Amitabh

Signature Not Verified Signed by: AMITABH RANJAN Signing time: 11-08-2023 11:42:22