Allowed

Sow. Rekha Anil Bhosale v. Anil Gopalrao Bhosale

Bombay HC7 Sept 2017FCA/10/2017

Case brief

AI extract

What is this about?

Appeal allowed. The High Court distinguished a Supreme doctrinal precedent regarding inter-court transfers without notice. It held that transferring a divorce petition from Civil Judge Nanded to Family Court Nanded involved different establishments, requiring notice. Consequently, the appellant showed sufficient cause for delay in setting aside the ex-parte decree, and the impugned order rejecting

What did the court decide?

The impugned order dated 19.12.2016 in Civil M.A. No.2 of 2016 was set aside. The application for condonation of delay of one year, nine months, and twenty-four days was allowed.

Sow. Rekha Anil Bhosale Vs Anil Gopalrao Bhosale — Matrimonial and Divorce | Bombay HC (2017)

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( 1 ) fca10.17

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FAMILY COURT APPEAL NO. 10 OF 2017

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Sow. Rekha w/o. Anil Bhosale,..Appellant
Age. 27 years, Occ. Household,
R/o. At present c/o. Venkatrao Namdeorao
Kamble, At. Devarjan,
Tq. Udgir, Dist. Latur.

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Versus

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Anil s/o. Gopalrao Bhosale,
Age. 33 years, Occ. Education,
R/o. Bajrang Colony,
Opp. M.G.M. College,
Nanded, Dist. Nanded.

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..Respondent

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Mr.P.G. Rodge, Advocate for the appellant.
Mr.G.G. Suryawanshi, Advocate for sole respondent.

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CORAM : T.V.NALAWADE &
S.M.GAVHANE,JJ.
DATED :07.09.2017

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JUDGMENT [PER : S.M. GAVHANE, J.] :-

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1.The appellant, wife of the respondent whose

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Civil Misc.Application No.2 of 2016 filed under section 5
of the Limitation Act for condoning delay of 1 year, 9

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months and 24 days caused in filing application for
setting aside ex-parte judgment and decree dated
07.05.2014 of divorce passed against her by the Principal
Judge, Family Court, Nanded in Petition No. A 159 of 2014
(HMP No.140 of 2013) was rejected by the Judge, Family

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Court, Nanded, has filed this appeal under section 19 of
the Family Courts Act, 1984, challenging the said order,

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mainly on the ground that she had engaged an Advocate in
HMP No.140 of 2013, in the Court of Civil Judge, Senior
Division, Nanded, but the said Advocate neither attended
the dates of hearing nor filed her say by seeking
instructions from her and hence no say order was passed
against her. Thereafter, said proceeding was transferred
to the Family Court, Nanded and came to be registered as

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Petition No.A 159 of 2014 and there was no notice of the

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same to her nor the Advocate appointed by her appeared in
the said petition before the Family Court. So also her

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Advocate did not inform further dates and progress in the
matter to her and as such ex-parte judgment and decree

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was passed against her for no fault of her. Being in

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utter disregard to the principles of natural justice, the
said judgment and decree requires to be set aside and she
deserves to be given an opportunity of contesting the
matter by filing her say and leading evidence.

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2.The said delay condonation application was
resisted by the respondent by filing say at Exh.13. He
denied almost all the allegations made against him by the
appellant. It was contended that the appellant cannot
plead absence of knowledge. The appellant has
deliberately not mentioned the date on which she got
knowledge of divorce decree. According him, the grounds
mentioned in the application are not satisfactory and
thus he prayed to reject the application.

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3.Considering the evidence adduced by the parties
in support of their respective contentions and arguments,
application to condone delay was rejected by the impugned
order.

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4.We have heard the learned advocates appearing
for both the sides.

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5.As per order dated 03.02.2017, this Court had
called for record and proceedings. The record and
proceedings in Civil M.A.No.2 of 2016 in which the
impugned order was passed, was required to be called by
the office. But it appears that the record and
proceedings in Petition No.A 159 of 2014, (old HMP No.140
of 2013) (Anil Vs. Rekha) was called and the same was
received on 06.03.2017. The Registrar (Judicial) of this
Court to bring this fact to the notice of all the
concerned to avoid such instance in future.

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6.However, as the copies of the impugned order and

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the application Civil M.A. No.2 of 2016 are filed on
record with the appeal, we have perused the same with
record and proceedings in Petition No.A 159 of 2014 (Old
HMP No.140 of 2013).

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7.There is no dispute that the respondent husband
had filed HMP No.140 of 2013 against the appellant wife
in the Court of CJSD at Nanded on 11.06.2013 and in the
said petition, the appellant had appeared through
advocate on 24.10.2013 as seen from Roznama in Petition
No.A 159 of 2014, when it was pending before the CJSD,
Nanded. Thereafter, said petition was transferred to the
Family Court, Nanded and it was decided on 07.05.2014.
So also there is no dispute that the present
appellant/respondent in above said petition had filed
application for setting aside ex-parte decree along with
Civil M.A.No.2 of 2016 for condoning the delay caused in
filing application for setting aside ex-parte decree.
The said application to condone the delay was filed on
29.02.2016.

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8.On the background of above admitted facts, the

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only aspect which is required to be considered is whether
the appellant/original applicant in the delay condonation
application has shown sufficient cause to condone delay

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caused in filing application to set aside ex-parte
decree. According to appellant, advocate who represented
her in the Court of CJSD did not inform her about the
dates of hearing and stage in the HMP and so also she had
no knowledge of transfer of HMP to the Family Court,
Nanded. It appears that she stated the same in her
affidavit filed before the Family Court, Nanded in
support of the delay condonation application. Of course,

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she seems to have not filed affidavit of her advocate in
support of delay condonation application.

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9.The record and proceedings in Petition No. A 159

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of 2014 shows that before it was transferred to the
Family Court, Nanded from the Court of CJSD, Nanded, it
was pending for say of the appellant, who is respondent
in the said petition and she was absent. Therefore, in
order to give her knowledge of transfer of the said
petition from the Court of CJSD, Nanded to the Family
Court, Nanded as well as when the establishment of Court
of CJSD, Nanded and the Family Court, Nanded are two

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different establishments, it was necessary for the

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transferee Court i.e. Family Court, Nanded to give notice
to the present appellant for her appearance before the
said Court. Therefore, delay caused in filing application
to set aside ex-parte decree on the ground of no notice

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of transfer of HMP to the Family Court, Nanded to
appellant is sufficient to condone the delay.

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10.The learned Judge of Family Court while

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rejecting the delay condonation application, relied upon
ratio laid down in the Case of Ramchandra Nathu Ghadage &

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Ors. Vs. Rajaram Nathu Ghadage & Ors., 2007(5) Bom.CR 354

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(equivalent citation - 2007(5) All MR 175) and observed

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that when a case was transferred from one Court to
another and the parties are represented by the lawyers

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notice is not necessary. As per the facts of the above
decision, the suit was transferred from the Joint Civil
Judge, Junior Division to the 5th Joint Civil Judge,
Junior Division at the same station. The defendants had
appeared on receipt of summons in the suit on 10.09.1981

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through an advocate. It was held that when the transfer

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of proceeding from one Court to another Court at the same

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station is done, no notice is required to be given to the
parties so long as they have caused their appearance
through advocate or in person. The record also indicates

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that some applications were filed on behalf of the
defendants, but no written statement was filed in spite

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of more than 10 opportunities having been given. In the

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present case, as observed earlier, when divorce petition
was pending before the Civil Judge, Senior Division,
Nanded, it was for no say evidence and then it was
transferred to the Family Court, Nanded. The transfer of
the said petition from the Court of Civil Judge, Senior
Division, Nanded to the Family Court, Nanded was not only
transfer of petition from one Court to another Court at

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the same station as per facts of the decision relied upon

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by the learned Judge of the Family Court, but it was

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transfer of petition from one Court to another Court
having two different establishments. Therefore and when

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it appears from Roznama in the divorce petition that when

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it was transfered to the Family Court, Nanded, it was for

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no say evidence and the appellant and her advocate were
absent, notice of transfer of said application to the
appellant/respondent in said petition for appearance
before the Family Court, Nanded was necessary and
therefore, the ratio laid down in the case of Ramchandra
Nathu Ghagade (Supra) cannot be suitably made applicable
to this case.

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11.For the aforesaid reasons, we hold that it is a
fit case to condone the delay caused in filing
application to set aside ex-parte decree passed in
Petition No.A 159 of 2014 by setting aside the impugned
order dated 19.12.2016 in Civil M.A. No.2 of 2016 and the
said application filed by the appellant needs to be
allowed by allowing this appeal. Hence, following order
is passed.

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12.The appeal is allowed. The order made by Family
Court, Nanded in Civil Misc. Application No.2 of 2016 on

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Exh.1 is hereby set aside. The application filed for
condonation of delay of one year nine months and twenty
four days is allowed. The delay is condoned.

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[S.M.GAVHANE,J.] [T.V.NALAWADE,J.]

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snk/2017/AUG17/ fca10.17

Sow. Rekha Anil Bhosale v. Anil Gopalrao Bhosale

Case brief

What is this about?

What did the court decide?

Sow. Rekha Anil Bhosale v. Anil Gopalrao Bhosale

Case brief

What is this about?

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