Meenakshi Goswami Vs Sunil Kumar — Allahabad HC (2023) — LawSathi Research

Meenakshi Goswami Vs Sunil Kumar — Allahabad HC (2023) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal dismissed as withdrawn, with liberty to the appellant to pursue her remedy afresh if cause survives, including an application for recall of the ex parte judgment and decree dated 16.02.2019 before the Family Court, Meerut; certified copy of the impugned judgment and decree to be returned to counsel for the appellant within one week.

Issue for consideration

Whether notice of the proceedings in Case No. 39 of 2018 was validly served on the appellant.

Court's answer

The appellant may apply for recall of the ex parte judgment and decree dated 16.02.2019 before the learned court below, the Court expressly declining to test the correctness of counsel's submissions and leaving the question of prior service of notice open.

Ratio / Principle

In the given facts, it was better and more efficacious for the appellant to pursue the remedy of recall before the learned court below itself than for this Court to consider the validity of service of notice.

Detailed headnote1 paragraphs

Allahabad High Court (Division Bench: Saumitra Dayal Singh and Shiv Shanker Prasad, JJ.), First Appeal Defective No. 425 of 2023, order dated 22.11.2023. Appeal under Section 19 of the Family Courts Act, 1984 by Meenakshi Goswami against the ex parte decree of divorce dated 16.02.2019 passed by the Principal Judge, Family Court, Meerut in Case No. 39 of 2018 (Sunil Giri Vs. Smt. Minakshi), presented with a delay of 1635 days on the submission that the appellant was never aware of the decree owing to alleged misrepresentations by the respondent as to service of notice. Without testing those submissions, and leaving open the question whether notice was validly served, the Court held it better and more efficacious for the appellant to seek recall of the ex parte judgment and decree before the Family Court itself. The appeal was dismissed as withdrawn with liberty to pursue the remedy afresh if cause survives, and the certified copy of the impugned judgment and decree was directed to be returned to counsel within one week.

Neutral Citation No. - 2023:AHC:221186-DB

Court No. - 39

Case :- FIRST APPEAL DEFECTIVE No. - 425 of 2023

Appellant :- Meenakshi Goswami Respondent :- Sunil Kumar Counsel for Appellant :- Arun Kumar Sharma

Hon'ble Saumitra Dayal Singh,J. Hon'ble Shiv Shanker Prasad,J.

Heard Sri Arun Kumar Sharma, learned counsel for the appellant and perused the record.

Present appeal has been filed under Section 19 of the Family Courts Act, 1984, against the ex parte order dated 16.02.2019 passed by the Principal Judge, Family Court, Meerut in Case No. 39 of 2018 (Sunil Giri Vs. Smt. Minakshi). By that order, the learned court below has granted ex parte decree of divorce in favour of the respondent.

The appeal has been presented carrying a delay of 1635 days. As to delay, it has been submitted since the proceedings were wholly ex parte and that ex parte proceeding arose on certain misrepresentations made by the respondent as to service of notice on the present appellant, the present appellant was never aware of the decree dated 16.02.2019.

Without testing the correctness or otherwise submissions advanced by learned counsel for the appellant and leaving it open to the learned court below to draw its judgement on the strength of record before it, on the issue of prior service of notice, we provide, the appellant may apply for recall of the ex parte judgement and decree dated 16.02.2019.

In the given facts, it may be better and more efficacious that the appellant may pursue the remedy of recall before the learned court below itself before we may attempt to offer any consideration on the issue whether notice of the proceedings in Case No. 39 of 2018 was validly served on the appellant.

On such suggestion, learned counsel for the appellant prays, he may be permitted to withdraw the present appeal with liberty to pursue his remedy afresh, if cause survives.

Present appeal is accordingly dismissed as withdrawn .

Let certified copy of the impugned judgement and decree dated 16.02.2019 be returned to the learned counsel for the appellant within a period of one week.

Order Date :- 22.11.2023 Abhilash

(Shiv Shanker Prasad, J.) (S. D. Singh, J.)

Digitally signed by :- ABHILASH SINGH High Court of Judicature at Allahabad