Allowed

Smt. K.Gayathri, v. K.Venkatramana Sharma

Telangana HC18 Oct 2022CRP/660/2014

Case brief

AI extract

What is this about?

In a civil revision, the High Court allowed the petitioner-wife's appeal to set aside an ex-parte divorce decree. The Court held that her delay in filing the application was excusable and the trial court erred in dismissing it. The ex-parte order was quashed, enabling the petitioner to pursue her petition.

What did the court decide?

Order impugned set aside; delay of 152 days condoned; ex-parte order dated 16.11.2007 set aside; petitioner permitted to file appeal.

Smt. K.Gayathri, Vs K.Venkatramana Sharma — Matrimonial and Divorce | Telangana HC (2022)

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[³²¹⁸¹

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE EIGHTEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY

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CIVIL REVISION PETITION NO: 660 OF 2014

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Petition under Section 115 of Civil Procedure Code, aggrieved by the Order daled 24.10.2013 in l.A. No. 180 of 2008 in O.P. No. 27 of 2005 on the file of the Court of the Senior Civil Judge, Nagarkurnool, Mahabubnagar District. Between:

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Smt. K.Gayathri, Wo. Venkataramana Sharma, Occ: Housewife, R/o. Remaddula Village, Pangal Mandal, Mahabubnagar District.

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...AppellanUPetitioner-Respondent

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AND

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K.Venkatramana Sharma S/o. V.Krishna Murthy, Occ. purohit, R/o. Bommanpally Village, Achampet Mandal, Presently residing at H.No. 2-64, Old Bazar, Achampet (Post & Mandal, Mahabubnagar District)

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...Respondent

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CRPMP. NO: 898 OF 2014

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to pending disposal of the revision grant injunction restraining the respondent from remarrying another woman and pass any such other order or orders which this Hon'ble Court may deem fit and proper in the circumstances of the Case.

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Counsel for the Petitioner: SRI K. VENKATESH GUPTA

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Counsel forthe Respondent: SRI S. SRIDHAR

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The Court made the following: ORDER

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THE HON'I ILE SRI^{JUSTICEA.VENKATIISrHV'A.Rl. REDDY} CTl/I , REVISION PETITION NO.6€'O Ot :;?OI4 ORDER:

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This^{( lir.il} Revision Petition (for short 'OR^)l is filed by the petitior er/rvife under Section I 15 of Civ I Pr'rcedure Code (for st ort 'CPCJ assailing the order dated 2',4.I 0.2O 13 in I.A.No.18l of 2OO8 in O.P.No.27 of 2005 o;.r tht: file of the Senior C ivil .Iudge, Nagarkurnool.

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Tee Interlocutory Application in l.A.ltio.l8o ol 2008 is file< under Order 9, Rule 13 of CPC "ea,l w,ith Section 5 of he Limitation Act to condone the de.lav of 152 days and to s et aside the ex-parte order passed .r[tairst the petitioner on 16. I l.2OO7 .

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Hr ard learned counsel on borh sides

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Subm issions made on either side l-14v6 1s6r: ii'e d due consider;rtion cf this Court.

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Tl'r, ' petitioner is the wife of respon(l,l.rt. $,1-lo filed O.P.No.2i of 2005 against her husband for d :;solLrtion of marriage. Ir-ritially the said O.P.No.27 of 2Or)S^was clismissecl on .r1.08.2O06 and thereafter the respc,rtdent /

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AVR.J cRP 660 2014

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Pase No.2 0f l0 :

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husband has liled I.A.No.275 of 2006 for restoration of petition and the sarne was a-llowed on 16.11.2007. After restoration of O.P.No.27 of 2005, the petitioner herein failed to pursue the matter and consequently the ex-parte decree was passed. At the time, when the petitioner has come to know about it, she was not at residence, she went to Hyderabad, she could not contact her counsel and when contacted her counsel, she has come to know about exparte decree dated 16.11.2OO7. Accordingly, she filed the present application.

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The respondent / husband has filed a detailed counter denying the petition averments alleging that she has intentionally avoided to appear before the Court on O2.Il.2OO7 and accordingly, on 16.11.2OO7 the Court has passed ex-parte decree against her and the delay is not properly explained and prayed for dismissal of the application.

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The trial Court, having considered the rival contentions, dismissed the application u,ith an observation that though the petitioner has requested to condone the

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aRP 660 20t4

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Pase No.3 of l0

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delay of 15 2 days, she has not put-forth an7 convincing reason for condoning the delay of 152 days ir:' filing the application to set aside the ex-parte decree.

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\s per the averrnents of the sul)porting affidavit, fil :d by the petitioner, before the trial^(]ourt, it is stated by h :r that she being a poor lady, left t,r Hy<lerabad in search c I her livelihood and she was stayrlrg v,ith her relatives, sI e hails from a remote village, she .s having lot of personal problems, she could not contact her :ounsel rvhen the n,,tices for restoration of O.P. No.27 r,:. 2O()5 were issuecl and served upon her and the circumstances were beyond her :ontrol. Apart from it, the respondent /husband has promist d her to participate in the counselling orocess before the J rdicial First Class Magistrate at Kollapur in the Maintenanc: Case and accordingly she was r.r.aiting for counselling but the respondent has obtain,:d ex-parte decree behir d her back

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U. t he learned counsel for the petitioner strenuouslv contends that the petitioner is a r-Lstic village ladv, she vas not in the village whelr thc notice in

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AVRJ cRP 660 20t4

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; Page No.4 of I0 :

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restoration application was served and that a iiberal approach is required in such circumstances in condoning the delay and relied on the principles laid in the following decisions.

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(1) Manoharan Vs. Sivarajanl.

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(2) Yellamma Vs. Kavali Paravathamma2. (3) M/s.Mawar Steel Vs.M/s.Muddu and Mudu Import and E:(port Private Limited:.

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Per contra learned counsel appearing on behail of respondent would submit that CRP is not maintainable and that the petitioner ought to have liled CMA and that the ex-parte decree was obtained long back on 16. 1l.2OO7 i.e. about fifteen years back. At this stage, decree cannot be set aside in a matrimonial dispute.

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The undisputed facts of the case are that initially the original petition was dismissed for default on 31.O8.2006 and before dismissal itself the petitioner/wife has filed her counter in O.P.No.27 of 2005. Her contention is that she has filed a Maintenance Case before the Judicial First Class Magistrate at Kollapur u,herein her husband has promised to participate in the counselling

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'^{Laivs (SC)20liI I 2l}

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r 2021 Supreme ('l'elangana)10

AVR.J cRP 660 2014

Page No.5 of l0

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process an I that she was waiting for that opFoltulity. In the meanr zhile, she left to Hyderab:rd ir. se.arch of livelihood, ived with her relatives, she was n()t in contact with her cc ,rrrsel and accordingly she couLld nc t: respond to the restora ion application, failed to appear or^t-)2. L1.2OO7 and accorc ingly, on 16.l I .2OO7 an ex-parte ctec:ee was passed

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1 f . ilhile dealing with the applicationr lile,l under Order-lX, Rrle-13 of CPC, the Hon'ble Supre rre Oourt of

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India in Par imal v. Veena^(a) Bhartic, helcl thlu;

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"APl rroach ol the court while dealing with such ani pplication under Order IX, Rule 13 C.P.C. wou ld be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX, Rulr 13 CPC, the Court has no jurisdiction to set aside ex-parte decree. The mannt r in whir h the language of the second provirx> to Ord 'r IX, Rule l3 C.P.C. has been couche<l by the legislature makes it obligatory on lhe appr llate Court not to interfere with ar r:xpart I decree unless it meets the statrrtory reqL ircment. [t u,as not permissible for' the Higt Court to take into consideration the

i (2o )3 SCC i45

AVR.J cRP 660 2014

: Page No.6 of l0

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conduct of the appellant subsequent to passing of the ex-parte decree.'

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It was a case in which the spouse who

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obtained the ex-parte decree had remarried. The Honble Supreme Court declined to take into account the remarriage of the spouse as a relevant factor in deciding the merits of an application filed for setting aside the ex parte decree of divorce. Accordingly, while seeking guidance from the above, I am of the firm view that mere re marri2ge of the petitioner-husband who obtained ex porte decree of divorce will not render the application to set aside the ex parte decree filed by the wife-opposite spouse infructuous. Re-marriage of the spouse is not a relevant factor to be taken into account in deciding the merits of the application filed for setting aside the ex parte decree of divorce. The application under Order-lX, Rule-i3 of CPC has tobe considered on its own merits s'ithin the four corners of that provision.

AVR,J :RP 660 2014

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.n Miryala Kavitha @ Yadamrra 'i/s. Miryala Krishnaial^s lrarned Single Judge ol- thir; Co urt has clearly hel I that the provisions of Sectio 1 5 of the Limitation \ct would apply to the proceedings -inder Hindu Marriage A ;t and an appeal is also maint;rinab.r: if it is filed beyond the period of thirty days. The Hon':I,: Srupreme Court in Tejinder Kaur Vs.Gurmit Sin3 h^t and in Smt.Lata Iiamat Vs.VilasT held that under ll,e:tirn 28(4) of Hindu Marriage Act the appellanl is^,: ntit-led for exclusion o, time taken for obtaining certified .opi€,s of the decree. I r Smt.Lata Kamat Vs.Vilas (7th r;ugrra) the Hon'ble Su rreme Court has also dealt u'ith int,:rpretation of suit or other proceedings under Secti,rrt ,19(3) of Limitation \ct and held that the impact of Suc,- Ser:tion (3) is concerne 1, it r.r,il I be that the provisions; of tli: Lirnitation Act will not apply so far as a suit or an origin€J prr,ceeding under the \ct is concerned but clause (.3) will nor. govern an appeal. Honble Supreme Court in M/S Sahara India and other: Vs. M.C. Aggarwal HUl8 held thaLt where no

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'^zoo+ 1:ry^ALt690 6 lllSs (./l :i( ( ,., ) 7 1949 Ql SCC 613 I 2007 (t r ) sc. ) 800

cRP 660 2014

: Page No.8 of l0

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opportunity of hearing has been given and an ex-parte order has been passed the Court should not lose sight against the fact that the prejudice will be caused to the other side and consequently restore the case.

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In the case on hand the trial Court has clearly recorded that on O2.ll.2OO7 the petitioner/wife could not appear and on l6.lL.2OO7 an ex-parte decree was passed and whereas the contention of the petitioner is that she was not in the village, she was at Hyderabad with her relatives, she is a rustic village lady, without having any male support and thereafter when she consulted her counsel, she lr,as informed about ex-parte decree dated 16.11.2007. At this stage it is apposite to mention that on a query posed by this Court learned counsel for the petitioner and respondent have submitted that till date the respondent / husband has not re-married.

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There cannot be any straitjacket formula of universal application to condone the delay. "Sufficient Cause" under Section 5 of Limitation Act is only a question of fact and the Court has to exercise its judicious

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AVR I CRP 660 2OI4 : Pagc No.9 of l0 :

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discretion o meet the ends of^justice. Th r>rrgtr under Section 15 ol'Hindu Marriage Act, a divorcr:d pr:rson is entitled to r aarry again after expiry of appeal tinre, that by itself does not make the application llled either under Section 5 of Limitation Act or under Order-lX, Rr-rle- 13 CPC as infructuc us.

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I r the present case, the petitiorrer /^.r,ife is able to explain tl Le delay of 152 days stating lhat s;he went to Hyderabad z nd she was living with her relatives, in search of her fivelih cod, she was not aware of the pro:e:edings in restoration z pplication, she was waiting for cor-tr rse.ing in pending Mai rtenance Case before the Judicial F'rrst Class Magistrate ar Kollapur and in the meanu'hile he l husband obtained ex-I arte decree dated 16.LL.2OO7. T'tr,: refrrre, in such facts ar d circumstances of the case, 'vhile .-r:lyrng on the principler laid in the above decisions, I ltol: thrrt the a order impugr ed warrants interference by this^(lorrrt, jurisdictional error is crept in dismissing tht: e 1t:li<:ation Iiled to condc ne the delay of 152 days, cottsequt:nth', the order impugn :d is set aside and the delay r:f 15,12 days is condoned.

cRP 66t) 20t4

: Page No.l0 of l0 :

17 . In the result, this Civil Revision Petition is allowed, order impugned dated 24.1O.2013 in I.A.No. 180 of 2008 in O.P.No.27 of 2005 on the file of the Senior Civil Judge, Nagarkurnool is set aside and the delay of 152 days in liling appeal is condoned and consequently, the ex-parte order dated 16.ll.2OO7 in O.P.No.27 of 2OO5 is hereby set aside. In the circumstances of the case, there shall be no order as to the costs. Miscelianeous applications, if any

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pending, shall stands closed.

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SD/-K.ONESIM

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DEPUTY REGISTRAR //TRUE COPY// ll

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SECTION OFFICER

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To,

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The Senior Civil Judge, Nagarkurnool,^{tvlahabubnagar District.}

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One CC to Sri K. Venkatesh Gupta,^Advocate [OPUC]

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One CC to Sri S. Sridhar,^Advocate IOPUCI

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Two CD Copies

o'$s

HIGH COUF T

DATED:1811012022

ORDER

CRP.No.660 ot 2014

4
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C, 05 Jiill 2[?3

ALLOWING THE CRP

WITHOUT C OSTS

Q.x

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IlI(iH COI ]IiI IoIt I'FIE STATE OF TELANGANA AT IIYDEI{AI]AT)

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Crl.RC.No. 649 of2018

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Bct\Ycen

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Madipalli Murali, S/o Veeraiah, Aged about 62 years, Occ: Business, R/o I I.No.l I -10-694178, Burhanpuram, Khammam. Kl.rammam District .

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...Petitioner/Accused

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And

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The State olTelangana Rep. by its Public Prosecutor, High Court for the State of T(;langana, At Hyderabad.

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RespondenVComplainant

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l Kondaparthi Govinda Rao, Sro Krishnaiah, Aged lbout 44 1,ears, Occ: Agriculture, R/o Vijayanagar Colony, Khammam, Khammanr Distri,:t.

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Responclent,/De1'acto conrplainant-

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JOIN

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,),

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It is submitted that the pctitioner and 2nd respondent are close friends, ivith that intimacy, the 2"d respondent paid an amount of Rs.8,82,000/- as hand Ioan in the month of t0-10-20i)8 and subsequently the oheque issued in repayment r,vas disholoured, resulting in CC No.14 of 2010 before AJMFC, Khammam. Pursuant to disrlissal of appeal against conviction, Crl.A.No.l7ll of 20l5 rvas filed befcre ASJ, Khammam. The present Crl.RC arises out of the dismissal of the Crl.Appeal on 31-10-2017. At this^juncture the parties have compromised out olthe court, hence the 2"d respondent has no objection to compromise the same, whereby acquit the petitioner on the condition that he be permitted to rvithdraw the amount already deposited an amount of Rs.4,41,0001 by the petrtioner in the Court and pay balance of Rs.4,41,000/- on the date of settlen)ent and the 2nd respondent accepte<l for the same. Hence this joint memo

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lt is subnlitr )d that the pctitioncr and 2"d rcspondent hcrein liles tris present Joint Mcn o to compound thc ollences as against ihc petti(,ner in vierv ol'the nratter ietlled out ol court anricably.

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For the reas, ns statcd above. it is prayed that this IIon'ble Cru,t nray be pleascd to pcn rit the petitioner and 2"d respondent to compo,lnd lhe offence and acqu it the l'etitioner/Accuscrl in thc above Crl.R(l \o.r49 of 2018 and pass sucl other order ol orders as this llou'ble Corrt1 nray tleem fit and proper in tl.rc cr 'cumstances of thc case.

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Hydcrabad |-,^r!U'.,,, ,t: Datetl: 29-1 1-2022 Petitioner ]I i' ( oLrnsel 1ir rtlre P:t :ion:r F Qo,*ru,Qo,*ru, Resl.rondcnt No.2 .^,L .l !;, ' I^{ttu t.} ,-Crrunscl 1i]r tht- R isp()nJ,)t No 2

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F Qo,*ru,Qo,*ru, Resl.rondcnt No.2

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Smt. K.Gayathri, v. K.Venkatramana Sharma

Case brief

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Smt. K.Gayathri, v. K.Venkatramana Sharma

Case brief

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What the court decided

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