Rule 13 of Order IX C.P.C. with a prayer to set aside the ex parte decree. = Even from the discussion undertaken by the trial Court, it is evident that on a day fixed for cross-examination of P.W.1, the Court was without Officer and the Official of the in-charge Court has informed the Advocate for the appellant that the in-charge Court would not take up the matter. When such was the uncertainty, the appellant cannot be expected to visit the Court at Vijayawada on every date of hearing. The trial Court proceeded in a hyper technical manner and tried to find fault with the appellant. At a time when the Parliament itself amended the Hindu Marriage Act providing for institution of proceedings in a Court, within whose territorial jurisdiction, the woman spouse resides, the trial Court was harsh indeed towards the appellant, though a case was instituted against her at Vijayawada, when she was residing at Kurnool. There was absolutely no basis for the trial Court in dismissing the application filed by the appellant under Order IX Rule 13 C.P.C.

 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

AND

 THE HON’BLE SRI JUSTICE K.G.SHANKAR

F.C.A. No.166 OF 2013

JUDGMENT : (Per LNR,J)

          The appellant is the wife of the respondent.  Their marriage took place in the year 1997 and they were also blessed with two children.  On earlier occasion, the respondent filed an O.P. against the appellant for divorce.  During the pendency of the O.P., the matter was settled and the appellant was residing with the respondent.  Once again, the respondent filed O.P.No.561 of 2009 in the Family Court, Vijayawada, for divorce against the appellant on the ground of cruelty.  The trial of the O.P. commenced. Stating that the appellant did not turn up for cross-examining P.W.1, the trial Court set her ex parte and passed anex parte decree on 18.06.2012. 

          The appellant filed I.A.No.727 of 2012 under Rule 13 of Order IX C.P.C. with a prayer to set aside the ex parte decree.   It was pleaded that she was residing at the house of her parents at Kurnool and it is on account of her illness, she did not appear on the concerned day.  The application was opposed by the respondent.  The trial Court dismissed the I.A. through order, dated 05.02.2013.  Hence, this appeal.

          Heard learned counsel for the appellant and the learned counsel for the respondent.

          It is not in doubt that the appellant is residing at a far-off place viz., Kurnool on being deserted by the respondent.  One can easily imagine the hardship that would be faced by the wife residing at such a distant place to defend herself in the proceedings instituted by the husband.   Further, it is not as if the appellant has not participated in the proceedings.  Even from the discussion undertaken by the trial Court, it is evident that on a day fixed for cross-examination of P.W.1, the Court was without Officer and the Official of the in-charge Court has informed the Advocate for the appellant that the in-charge Court would not take up the matter.  When such was the uncertainty, the appellant cannot be expected to visit the Court at Vijayawada on every date of hearing.  The trial Court proceeded in a hyper technical manner and tried to find fault with the appellant. At a time when the Parliament itself amended the Hindu Marriage Act providing for institution of proceedings in a Court, within whose territorial jurisdiction, the woman spouse resides, the trial Court was harsh indeed towards the appellant, though a case was instituted against her at Vijayawada, when she was residing at Kurnool.  There was absolutely no basis for the trial Court in dismissing the application filed by the appellant under Order IX Rule 13 C.P.C.

          We accordingly allow the appeal and the order under appeal is set aside.  As a result, I.A.No.727 of 2012 shall stand allowed and the ex parte decree dated 18.06.2012 shall stand set aside.  The trial Court shall dispose of the matter as expeditiously as possible.

          The miscellaneous petition filed in this appeal shall also stand disposed of.  There shall be no order as to costs.

______________________

L.NARASIMHA REDDY, J

_______________
K.G.SHANKAR, J

Date: 04.04.2013

JSU

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

AND

THE HON’BLE SRI JUSTICE K.G.SHANKAR

 

 

 

 

 

 

 

 

 

 

 

 

F.C.A. No.166 OF 2013

Date: 04.04.2013

JSU