Allowed

Ranjana Singh v. Ajay Kumar

Allahabad HC10 Apr 2019A227/1205/2019

Case brief

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What is this about?

This High Court disposed of a writ petition under Article 227 challenging the rejection of a recall application in a divorce proceeding. The court found the Family Court took a technical view despite incomplete evidence and set aside the impugned order, directing a fresh hearing.

What did the court decide?

Writ petition disposed of setting aside impugned order dated 25.1.2019 with direction to Family Court to dispose of recall application afresh.

Ranjana Singh Vs Ajay Kumar — Matrimonial and Divorce | Allahabad HC (2019)

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Court No. - 25

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Case :- MATTERS UNDER ARTICLE 227 No. - 1205 of 2019

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Petitioner :- Ranjana Singh Respondent :- Ajay Kumar Counsel for Petitioner :- Madhav Jain Counsel for Respondent :- Ashok Kumar Srivastava,Salma Bano

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Hon'ble Harsh Kumar,J.

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Supplementary affidavit and rejoinder affidavit filed by learned counsel for petitioner and counter affidavit filed by learned counsel for respondent, are taken on record.

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Heard Sri Madhav Jain, learned counsel for petitioner, Sri Ashok Kumar Srivastava, learned counsel for respondent and perused the record.

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Upon hearing the parties counsel and perusal of record it is very much clear that Petition No.307 of 2017 under Section 125 Cr.P.C. for maintenance was filed by petitioner against her husband Ajay Kumar and Divorce Petition under Section 13 of Hindu Marriage Act was filed by husband as Matrimonial Petition No.107 of 2017 against his wife, the petitioner.

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By impugned order dated 25.1.2019 learned Principal Judge, Family Court, Varanasi has rejected application 15-C moved by petitioner for recall of ex-parte order dated 15.2.2018 passed against her in divorce petition. Perusal of copies of orders and order-sheet at A-4 & A-4A shows that undisputedly in Matrimonial Petition No.107 of 2017 service was effected on wife Ranjana Singh through substituted mode of service by way of publication in local news paper Jan Varta dated 24.9.2017. A copy of summon so published in the news paper is at Annexure-3 which shows that above summon was fixing 8.11.2017 was published in a daily news paper Jan Varta dated 24.9.2017 and it is mentioned to have been issued by court on 23.11.2017. Above dates speak that there is something wrong on the part of publisher and on same page of above news paper 5 more summons of same family court Varanasi have been published which are alleged to have been issued on 23.9.2017 and it appears that in summons of this case published in news paper 23.11.2017 has been wrongly printed instead of 23.9.2017. It is also pointed out that in Petition No.307 of 2017 under Section 125 Cr.P.C. written statement was filed by respondent Ajay Kumar on 16.4.2018 copy of which is at Annexure-5 and in above written statement there is no whisper of filing of Divorce Petition under Section 107 of 2017 by him or passing of ex-parte order therein on 15.2.2018. A copy of application under Order IX Rule 7 of C.P.C. for recall of order dated 15.2.2018 moved on 4.12.2018 has been filed at S.A.-1. In application Order IX Rule 7 C.P.C. the petitioner has not specifically mentioned as to how she got knowledge of the pendency of divorce petition or she was not served by way of publication, and the learned Principal Judge, Family Court, Varanasi has rejected the same on technical ground of not mentioning it specifically and also in view of the fact that since hearing is complete and case was fixed for judgment and no hearing is

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left to be done, so application deserves to be rejected.

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A copy of order-sheet filed at Annexure-4-A shows that in furtherance of exparte order dated 15.2.2018 ex-parte evidence was completed on 18.9.2018 and after hearing arguments case was fixed for delivery of ex-parte judgment on 31.10.2018 but on 31.10.2018 judgment was not delivered and case was again fixed for re-hearing on 24.11.2018 and on 24.11.2018 it was fixed for 14.12.2018 by which time application under Order IX Rule 7 C.P.C. was moved by petitioner Smt. Ranjana Singh which shows that ex-parte hearing was not completed hence law laid down by the Apex Court in AIR 1964 SC 993 in the case of Arjun Singh Vs. Mohindra Kumar that when ex-parte hearing is completed and only judgment is to be passed, Order 9 Rule 7 C.P.C. does not apply and only course available to defendant is to seek setting aside ex-parte decree, is not applicable to the facts of this case.

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I find that learned Principal Judge, Family Court, Varanasi has taken too technical view of hearing having been completed in rejecting application under Order IX Rule 7 C.P.C. which is not correct. It is settled principle of law that opportunity of hearing must not be refused unless there is deliberate avoidence by the parties. In the case of Ramji Dass and others Vs. Mohan Singh, 1978 ARC 496, the Apex Court held that:-

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"Court's discretion should be exercised in favour of hearing and not to shut out hearing."

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In view of discussions made above, the writ petition is disposed of setting aside the impugned order dated 25.1.2019 with direction to Principal Judge, Family Court, Varanasi to expeditiously dispose of application under Order IX Rule 7 C.P.C. afresh, in accordance with settled principles of law after affording reasonable opportunity of hearing to parties and will appear before the Principal Judge, Family Court, Varanasi on 24.4.2019.

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The writ petition is disposed of accordingly.

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Order Date :- 10.4.2019 Kpy

Ranjana Singh v. Ajay Kumar

Case brief

What is this about?

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Ranjana Singh v. Ajay Kumar

Case brief

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