Appeal against Family Court's order allowing condonation of delay to set aside an ex parte divorce decree dismissed. Court held no interference required as sufficient cause for non-appearance was established.
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Court No. - 21
Case :- FIRST APPEAL No. - 28 of 2021
Appellant :- Tej Singh Respondent :- Meena Devi Counsel for Appellant :- Ramesh Chandra Tiwari
Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Sanjay Kumar Pachori,J.
Heard learned counsel for the appellant.
The appellant is before this Court assailing the validity of the order dated 25.11.2020 passed by Addl. Principal Judge, Family Court No.4 at Agra in Misc. Case No.189 of 2019 (Smt. Meena Devi v. Tej Singh) arising out of judgment and order dated 21.1.2019 passed in Suit No.47 of 2016 filed under Section 13 of Hindu Marriage Act by which the delay condonation application for condoning the delay in filing the recall application for recalling the exparte decree of divorce has been allowed with cost of Rs.3000/-.
Having heard learned Counsel for the appellant and after perusing the records of the case, we are satisfied that the Court below had rightly proceeded to allow the application under Section 5 of the Limitation Act condoning the delay in filing the application for setting aside the ex-parte divorce decree. Hon'ble the Apex Court in case of M/S. Sahara India & Ors. vs M/S. M.C. Agrawal Huf, 2007 (11) SCC 800 had held that where no opportunity of hearing has been given and an ex-parte order has been passed, the Court should not loose cite of the fact that prejudice will be caused to the other side and had restored the case. It is well settled that the Courts while dealing with application under Section 5 of the Limitation Act for condonation of delay has to take a lenient view, further in matters under Order 9 Rule 13 C.P.C. where any ex-parte decree has been passed against a defendant, the Court is satisfied that summon was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree.
In the present case, the respondent had specifically averred in her application under Order 9 Rule 13 that it was on 1.7.2019 that she came to know from the notice of the bank that an exparte divorce was granted to the appellant and it was after the inspection of the records by the Counsel for the respondents, she came to know that the ex-parte divorce decree was passed on 21.1.2019. The Court below had recorded a categorical
finding in regard to the fact that the respondent was prevented by sufficient cause for non appearing in the said proceedings under Section 13 of the Hindu Marriage Act.
From perusal of the case and the order passed by Court below, we are of the opinion that no interference is required in the matter, as the appellant has failed to show that the Court below had wrongly exercised the power under Order 9 Rule 13 C.P.C. As far as the application under Section 5 of the Limitation Act is concerned, looking to the gravity of the matter, the Court below had taken correct view by allowing the said application.
In view of above, no interference is required in the matter. The first appeal sans merit and is accordingly dismissed.
Order Date :- 8.2.2021 SP/
2 issues framed by the court
Whether the Family Court erred in condoning the delay for setting aside an ex parte divorce decree under Section 5 of the Limitation Act and Order 9 Rule 13 CPC.
Whether the appeal against the order allowing the recall application requires interference.
Colour shows how this judgement treated each authority
M/S. Sahara India & Ors. vs M/S. M.C. Agrawal Huf, 2007 (11) SCC 800Referred¶7
3 provisions across 3 enactments
Tej Singh
Meena Devi
Mahesh Chandra Tripathi
Sanjay Kumar Pachori
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Mahesh Chandra Tripathi and Sanjay Kumar Pachori
Parties & counsel
