Madras High Court
M.Subbulakshmi vs S.B.Sundarrjan on 31 January, 2022
C.R.P.(MD)No.68 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.01.2022
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD)No.68 of 2019
and C.M.P(MD) No.333 of 2019
M.Subbulakshmi ... Petitioner
Vs.
S.B.Sundarrjan ... Respondent
PRAYER:- Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
01.11.2018 made in I.A.No.591 of 2017 in H.M.O.P.No.16 of 2015 on the
file of the Family Court, Tirunelveli.
For Petitioner : Mrs.M.Subbulakshmi
Party-in-person
For Respondent : Mr.B.N.Rajamohamed
ORDER
This civil revision petition has been filed by the petitioner/wife and
argued by her as party-in-person.
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C.R.P.(MD)No.68 of 2019
2.The brief facts of the case are as follows:
2.1.The respondent/husband had filed HMOP.No.16 of 2015 on the
file o the Family Court, Tirunelveli for dissolving the marriage between
him and the revision petitioner herein. The revision petitioner/respondent
had not appeared before the Court, though summon was served on her
address and therefore, an ex-parte decree came to be passed on
25.06.2015. On coming to know about the said order, the revision
petitioner has filed an application for condoning the delay of 830 days in
filing the application for setting aside the ex-parte decree. In the affidavit
filed in support of the petition, she would submit that she was unable to
go over to Tirunelveli, since she was working as Professor at Hosur and
consequently, due to her pre-occupation relating to her work, she was
unable to contact her counsel to get the details. Thereafter, when she
meet her counsel, she was informed about the ex-parte order and she has
taken steps to set aside the ex-parte order. However, there is a delay of
830 days.
2.2.The respondent/husband had filed a counter stating that the
reasons given are totally false and that she has enough holidays owing to
her position and therefore, her contention that she was pre-occupied in
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C.R.P.(MD)No.68 of 2019
work is totally false. He would submit that the entire application is only a
malafide petition and the same should not be condoned. An additional
counter statement was also filed by the husband, more or less, adopting
the very same statement made in the earlier counter.
2.3.The learned Family Judge, Tirunelveli by order dated
01.11.2018 dismissed the said application. The learned Judge had
practically adopted the defence raised in the counter by the
respondent/husband and held that the petitioner's claim that she was
pre-occupied in her work is totally wrong, since she has 73 days holidays
and that she had not given any details as to the date on which she had
come to know about the ex-parte decree and that the date on which she
had taken steps to file the application for condoning the delay.
Challenging this order, the revision petitioner has filed this civil revision
petition. Initially, she was represented by a counsel and thereafter, she
has appeared as party-in-person.
3.Heard the petitioner and the learned counsel appearing for the
respondent and perused the materials available on record.
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C.R.P.(MD)No.68 of 2019
4.The ex-parte order dated 25.06.2015 would indicate that the
petitioner was initially represented by counsel and thereafter, there has
been an affixure in her address. The reason as to why an affixure was
ordered is not discernible from the ex-parte judgment. Even in the
judgment, it has been clearly stated that service was not possible on the
petitioner, because she was not in the residence and it was informed that
she was out of station. Despite this, the Court has not directed fresh
notice to the correct address. From a reading of the counter filed to the
impugned petition, the husband seems to be aware about his wife's work
and the number of holidays that is available to her which only goes to
show that the husband is keeping track of the wife. Therefore, for this
reason, he has not taken steps to serve at her address where she was
residing/working.
5.Be that as it may, considering the fact that the revision petitioner
herein is the wife and decree is one for dissolving the marriage, an
opportunity should be given to the wife, who has given some reasons for
the delay in taking out an application to set aside the ex-parte decree.
Therefore, this Court is of the view that the delay has to be condoned and
the ex-parte order dated 25.06.2015 has to be set aside. Accordingly, this
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C.R.P.(MD)No.68 of 2019
civil revision petition is allowed and the order in IA.No.591 of 2017 is set
aside and the decree in HMOP.No.16 of 2015 is also consequently, set
aside. HMOP is of the year 2015 and therefore, the revision
petitioner/wife shall file her counter statement in HMOP.No.16 of 2015
within 15 days from the date of receipt of a copy of this order into the
Court and she shall not wait for the date of the hearing but, shall file the
counter into the Registry. Thereafter, the learned Family Judge,
Tirunelveli shall dispose of the HMOP within three months, thereafter.
No costs. Consequently, connected miscellaneous petition is closed.
31.01.2022
Index:Yes/No
Internet:Yes/No
gns
Note: In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be
the responsibility of the advocate/litigant concerned.
To
The Family Court,
Tirunelveli.
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C.R.P.(MD)No.68 of 2019
P.T.ASHA,J.
gns
C.R.P.(MD)No.68 of 2019
31.01.2022
https://www.mhc.tn.gov.in/judis
