High Court dismissed appeal challenging Family Court order rejecting application to set aside ex parte decree in divorce case where appellant failed to appear or produce witnesses despite multiple opportunities.
Impugned orders of 26.04.2016, 06.05.2016, and 01.03.2017 upheld.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Civil Misc. Appeal No.827/2017
Kuntesh Sharma S/o Late Shekhar Chand Sharma, by caste Sharma, R/o Near Sunaron Ki Bagechi, Gangashahar Road. At present Resident of X-Ray Gali, Sadul Ganj, Bikaner. Raj.
----Appellant
Versus
Manisha Sharma D/o Sri Satynarayan Sharma W/o Kuntesh Sharma, B/c Sharma, Resident of Behind Shiv Mandir, Subhashpura, Bikaner.
----Respondent
| For Appellant(s) | : Mr. |
D.S. Gharsana |
|---|---|---|
| For Respondent(s) | : Mr. |
Hardik Gautam |
HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR
Judgment
08/12/2022
The present misc. appeal under Section 19 of the Family Court Act, 1984 is directed against the order dated 01.03.2017 passed by the Family Court No.1, Bikaner (hereinafter referred to as ‘Family Court’) whereby the application preferred by appellanthusband under Order 9 Rule 13 CPC praying to set aside ex parte decree dated 06.05.2016 was rejected.
Briefly stated facts of the case are that appellant got married to the respondent-wife on 18.11.2000. The couple has one daughter and one son from the said marriage. The relationship between the parties did not remain cordial. Thus, a petition for divorce under Section 13 of the Hindu Marriage Act was filed by
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the appellant on the ground of cruelty against respondent-wife before Family Court No.1, Bikaner. The Family Court directed appellant to produce witnesses in support of his petition on 22.04.2014. However, the appellant failed to produce witness for examination on the aforesaid date. The Family Court extended 16 opportunities to the appellant to produce witnesses. In fact, appellant never appeared before Family Court after 13.05.2011. The Family Court on 03.04.2016 allowed last opportunity in favour of the appellant in the interest of justice to lead evidence while imposing a cost of Rs.5,000/-. The appellant yet failed to avail the opportunity to produce witnesses. The Family Court in the aforesaid circumstances vide order dated 26.04.2016, closed the right of the appellant to produce witnesses. The next date i.e. 06.05.2016 was fixed by the Family Court for arguments. However, on the aforesaid date neither appellant nor any of his representatives appeared before the Family Court.
The Family Court keeping in view the aforesaid conduct of the appellant, vide ex parte decree dated 06.05.2016, dismissed the divorce petition filed under Section 13 of the Hindu Marriage Act. An application under Order 9 Rule 13 CPC was thereupon filed to set aside the ex parte decree. The Family Court by a detailed reasoned order dated 01.03.2017 rejected the aforesaid application. A challenge has been laid to orders dated 26.04.2016, 06.05.2016 and 01.03.2017 in the instant civil misc. appeal.
Learned counsel for the appellant submitted that the appellant due to his job requirements remained out of Bikaner and therefore, he could neither appear before the Family Court nor could he produce witnesses in support of his case. Learned counsel submitted that appellant was not informed about the date
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(06.05.2016) fixed before the Family Court by his counsel because of which he could not appear before Family Court. Learned counsel submitted that appellant is a bona fide litigant and only due to circumstances beyond his control, he could not appear before the Family Court on the dates fixed. Since, non appearance was not intentional, the Family Court ought to have allowed the application filed under Order 9 Rule 13 CPC to set aside the ex parte decree dated 06.05.2016 passed by the Family Court No.1, Bikaner.
Per contra, learned counsel for the respondent submitted that the appellant without valid justification failed to produce witnesses in support of his divorce petition despite repeated opportunities being extended. Learned counsel submitted that the appellant failed to appear before the Family Court on 06.05.2016 which was fixed for arguments. It was further submitted that looking to the conduct of the appellant in dealing with the divorce petition, he cannot be said to be bona fide litigant. Learned counsel further submitted that even the application filed by the appellant under Order 9 Rule 13 CPC was bereft of satisfactory explanation for his non appearance on the dates fixed by Family Court. Learned counsel thus prayed that the impugned decree and order dated 06.05.2016 and 01.03.2017 respectively do not suffer from any illegality and perversity. Therefore, the same deserves to be upheld by this Hon’ble Court.
Heard learned counsel for the parties and perused the material available on record.
From the perusal of the case file, it is apparent that 16 opportunities were accorded to the appellant for producing witnesses in support of his divorce petition. The appellant failed to produce any witness on the dates fixed by the Family Court.
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Lastly, on 03.04.2016, an opportunity to produce witnesses on 26.04.2016 was given subject to depositing cost of Rs.5,000/-. However on the aforesaid dates neither the appellant nor any of his representative appeared before the Family Court No.1, Bikaner. The Family Court No.1, Bikaner proceeded ex parte and passed decree dated 06.05.2016 against which the appellant filed an application under Order 9 Rule 13 CPC for setting aside ex parte decree dated 06.05.2016. The reasons mentioned for non appearance before the Family Court No.1, Bikaner were that the appellant was not properly informed about the dates fixed before Family Court No.1, Bikaner by his counsel; the appellant remained occupied in the treatment of his ailing mother etc. The application filed under Order 9 Rule 13 CPC however, did not disclose any specific reason for his failure to produce witnesses in support of divorce petition despite 16 opportunities being extended and his non appearance before Family Court on 26.04.2016.
It is settled law that if a party acts in a recalcitrant manner and fails to make the witness available for examination on repeated occasions without valid reasons, the court/tribunal keeping in view the facts and circumstances of the case may close the party’s right to lead evidence.
In the considered opinion of this Court, the appellant utterly failed show any bona fide reason due to which he failed to produce witnesses before Family Court No.1, Bikaner despite several opportunities. The conduct of the appellant clearly shows that he was negligent and careless in prosecuting the proceedings before Family Court No.1, Bikaner. The order dated 26.04.2016 of the Family Court No.1, Bikaner to close evidence in support of divorce petition therefore cannot be faulted with, even the conduct of the
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appellant subsequent to the order dated 26.04.2016 clearly disentitles him from claiming any relief.
An ex parte decree can be set aside only when a party had not acted in negligent manner or submitted bona fide reasons for remaining inactive in prosecuting the case. As noticed above, the facts and circumstances of the case clearly show that the appellant failed to establish sufficient cause or explanation for his non-appearance before the Family Court No.1, Bikaner, despite repeated opportunities.
In the result, we do not find any force in this appeal which is dismissed as such with no order as to costs.
(KULDEEP MATHUR),J
(SANDEEP MEHTA),J
12-Ravi Kh/-
3 issues framed by the court
Whether an ex parte decree dismissing a divorce petition due to the appellant's failure to produce witnesses and appear at hearings can be set aside under Order 9 Rule 13 CPC.
Whether the appellant's failure to produce evidence despite 16 opportunities and repeated non-appearance constitutes a bona fide reason for dismissing the application to set aside the decree.
Whether the Family Court erred in closing the appellant's right to lead evidence and rejecting the application to set aside the ex parte decree.
3 provisions across 3 enactments
Kuntesh Sharma
Manisha Sharma
Sandeep Mehta
Kuldeep Mathur
As recorded by the court registry
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