Application seeking condonation of delay and main proceeding cannot be clubbed together along with adduced evidence under Order 9 Rule 13 CPC
Harjeet Singh vs Taranjeet Kour
Jammu and Kashmir HC
2017 SCC OnLine J&K 746
About/from the judgment:
Application seeking condonation of delay and main proceeding cannot be clubbed together along with adduced evidence under Order 9 Rule 13 CPC!
The facts of the case are that the petitioner had filed a petition under Section 13 of the J&K Hindu Marriage seeking dissolution of marriage following which the respondent filed an application for transferring the proceeding to the Court of the Principal District Judge which was allowed and the parties had been directed to be present at the said Court on 20/10/2011. Further on, the petition was heard with the respondent proceeding ex parte subsequent to which an ex parte decree was passed. The petitioner had informed the army authorities about the dissolution of the marriage and the army authorities then went on to intimate the respondent about the decree of dissolution. Consequently the respondent had applied for extension of time in filing the application for setting aside the ex parte decree belatedly which was allowed by the trial court.
The counsel for the petitioner submitted that the Court should have appreciated the fact that the order for transferring the case was passed in the presence of both parties and that both parties had been directed to present themselves before the said Court on 20/10/2011. The counsel also contended that despite the authorities having informed the respondent about the dissolution, it took the respondent a period of 1 year to file an application seeking extension of time for filing the application. The last contention by the counsel for the petitioner was that the petitioner was not given any opportunity to file a reply or adduce any evidence in the proceeding under Order 9 Rule 13 CPC.
The counsel for the respondent on the other hand contended that the respondent had supported the order of the trial court and that the application seeking condonation of delay as well as the proceeding under Order 9 Rule 13 had been clubbed together and evidence had been recorded jointly in both the proceedings as was allowed in Manjeet Singh v. Manjeet Kour , 2001 SLJ 439and in Darshana Devi v. Bodh Raj, 2014 (2) JKJ 585 [HC].
The Court held that the trial court should have first decided the application under Order 9 Rule 13 CPC and subsequently proceeded to deciding the application by recording the evidence separately. The Court held that severe injustice had been done to the petitioner by clubbing both the proceedings and recording the evidence. The Court agreed that the petitioner should have been allowed to lead evidence in the main proceeding which was initiated by the respondent and hence, suffered from an error apparent on the face of the record. The impugned order also suffered from jurisdictional infirmity which couldn’t be sustained in the eyes of the law. Hence, the impugned order was quashed.
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