Sarita Kumari alias Jyoti Kumari v. Govind Kumar

Patna HC7 Apr 2026MA/510/2019

Case brief

AI extract

What is this about?

condonation of delay; I.A. No. 03 of 2025; ex-parte divorce decree; maintainability of matrimonial appeal; Order 9 Rule 13 CPC; Section 5 Limitation Act; Section 14 Limitation Act; non-service of summons; Family Court Nawada; Divorce Case No. 207 of 2017; delay of 5 months and 4 days; Patna High Court Miscellaneous Appeal No.510 of 2019

What did the court decide?

Application for condonation of delay allowed and appeal admitted afresh, but the appeal held not maintainable; appellant at liberty to move the learned trial court under Order 9 Rule 13 of the CPC alongwith an application under Section 5 read with Section 14 of the Limitation Act, which the trial court shall consider liberally for condonation of delay; appellant to take appropriate steps within six weeks from the date of the order. ¶¶30

Sarita Kumari alias Jyoti Kumari Vs Govind Kumar — Patna HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the Court should take up and decide the appellant's application for condonation of delay (I.A. No. 03 of 2025) for the delay of 5 months and 4 days in filing the appeal. +1 more

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Court's answer

While allowing the instant application for condonation of delay and admitting the appeal afresh, the Court held that the remedy of the appellant lies in the learned trial court, by filing an application under Order 9 Rule 13 of the CPC alongwith an application under Section 5 of the Limitation Act.

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Ratio / Principle

For non-service of summons, the learned appellate court is not in a position to consider whether the summons of the case was actually served upon the appellant; it is for the learned trial court to decide that fact on the materials on record.

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Key takeaways

Considering such circumstances, the instant appeal is not maintainable.ratio¶¶29
The appellant is at liberty to file an application under Order 9 Rule 13 of the CPC alongwith an application under Section 5 read with Section 14 of the Limitation Act.ratio¶¶29
If such application is filed, the learned trial court shall consider liberally the application for condonation of delay.

Detailed headnote1 paragraphs

Patna High Court (order per Bibek Chaudhuri, J; Chandra Shekhar Jha, J on the Bench) in Miscellaneous Appeal No.510 of 2019, order dated 07-04-2026, took up I.A. No. 03 of 2025 for condonation of delay. The appeal, filed on 18.07.2019, challenged an ex-parte judgment and decree of divorce in Divorce Case No. 207 of 2017 passed by the learned Principle Judge, Family Court, Nawada on 14.02.2019; the appellant learnt of the decree only on 29.05.2019, giving a delay of 5 months and 4 days. The Court noted the appeal had been inadvertently admitted on 01.07.2025 by a Co-ordinate Bench despite being barred by limitation. While allowing the condonation application and admitting the appeal afresh, the Court held the appeal not maintainable, observing that on non-service of summons only the learned trial court can decide, on materials on record, whether summons was actually served; the appellant was left at liberty to apply under Order 9 Rule 13 of the CPC alongwith Section 5 read with Section 14 of the Limitation Act before the trial court, which was to consider the condonation liberally, with steps to be taken within six weeks.

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IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.510 of 2019

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======================================================

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Sarita Kumari alias Jyoti Kumari

... ... Appellant/s

Versus

Govind Kumar

... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Madan Prasad Singh No.2, Adv. For the Respondent/s : Mr. Birendra Kumar, Adv. Mr. Kumud Kishore, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL ORDER

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(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)

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16 07-04-2026

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I.A. No. 03 of 2025

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Heard the parties.

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Notice has been served upon the respondent.

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Though Mr. Birendra Kumar learned

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advocate alongwith Mr. Kumud Kishore entered appearance on behalf of the respondent, no step has been taken by them to represent the respondent when the matter was called up for hearing.

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It appears from the record, that the instant appeal was inadvertently admitted with the order dated

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01.07.2025 by learned Co-ordinate Bench overlooking

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Patna High Court MA No.510 of 2019(16) dt.07-04-2026 2/4

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the fact that the appeal is barred by limitation and an application for condonation of delay bearing I.A. No. 03 of 2025 is lying with the record.

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Therefore, we propose to take up the application filed by the appellant for condonation of delay.

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It is submitted on behalf of the appellant that the judgment and decree of Divorce cum Matrimonial Case (Divorce Case No. 207 of 2017) was disposed of by learned Principle Judge, Family Court, Nawada on 14.02.2019 ex-parte .

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The existence of ex-parte decree came to the knowledge of the appellant only on 29.05.2019 when she appeared before the learned Additional Sessions Judge 3^rd , Barh, to contest the anticipatory bail petition filed by the opposite party. Subsequently, he obtained the certified copy of the impugned judgment and filed the appeal on 18.07.2019, thus there was delay of 5 months and 4 days in filing the appeal because the appellant did not have any knowledge about the above

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Patna High Court MA No.510 of 2019(16) dt.07-04-2026 3/4

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numbered matrimonial case.

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This Court has heard the learned advocate on

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behalf of the appellant. It is not in dispute that the decree for dissolution of marriage by divorce was passed ex-parte against the appellant. The appellant had the recourse to set aside the said decree by filling an application under Order 9 Rule 13 of the CPC in the learned trial court itself, especially when it is contended by her that she didn’t receive any summons of the divorce case for the reasons noted above while we allow the instant application for condonation of delay and admit the appeal afresh, we are of the view that remedy of the appellant lies in the learned trial court by filing an application under Order 9 Rule 13 of the CPC alongwith an application under Section 5 of the Limitation Act.

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For non-service of summons the learned appellate court is not in a position to consider, as to whether the summons of the case was actually served upon the appellant or not. It is learned trial court to decide the said fact on materials on record.

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Patna High Court MA No.510 of 2019(16) dt.07-04-2026 4/4

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Considering such circumstances we are of

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the view that the instant appeal is not maintainable, however, the appellant is at liberty to file an application under Order 9 Rule 13 of the CPC alongwith an application under Section 5 read with Section 14 of the Limitation Act and if such application is filed the learned trial court shall consider liberally the application for condonation of delay.

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Appellant is directed to take appropriate steps within six weeks from the date of this order.

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(Bibek Chaudhuri, J)

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( Chandra Shekhar Jha, J)

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Sudha/S.Tripathi

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Sarita Kumari alias Jyoti Kumari v. Govind Kumar

Case brief

What is this about?

What did the court decide?

Sarita Kumari alias Jyoti Kumari v. Govind Kumar

Case brief

What is this about?

What did the court decide?

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What the court decided

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