Ex-parte divorce decree set aside considering "sufficient cause" under Or. 9 R. 13 of the CPC
Seema Gupta Vs Manoj Kumar
First Appeal No. 7 of 2018
About/from the judgment:
The High Court allowed an appeal which was filed challenging an order passed by Judge, Family Court whereby, the application filed by the appellant, under Order 9 Rule 13 of the Code of Civil Procedure, 1908 for setting aside of the ex-parte Judgment and Decree was dismissed.
The parties were married to each other and out of the wedlock a son was born aged about 16 years and was residing with his mother. After disputes between parties arose husband filed a petition for dissolution of marriage. In the petition, it was mentioned that the wife/appellant appeared on 07-10-2015 but after that, she did not appear in that case. Therefore, an ex-parte proceeding was drawn against her. The husband filed his own affidavit in the ex-parte evidence. After hearing the arguments of the husband, the ex-parte judgment and decree was passed on 08-11-2016, aggrieved by which an application was moved by the appellant, which was dismissed. Hence, the instant appeal.
The counsel for the appellant, Rajat Mittal submitted that in the original suit, during mediation at Haridwar, the respondent/petitioner took appellant and her brother in the belief that he would get his petition dismissed and stay happily in Haridwar. The counsel for the respondent, Bhuvnesh Joshi didn't rebut this statement.
The Court observed that provision of Order 9 Rule 13 of the Code of Civil Procedure, 1908 envisages two different situations. It provides for setting aside of ex-parte decree where summons have not been duly served on the defendant or where he is prevented by the sufficient cause from appearing when the suit is taken up for hearing. While interpreting the meaning of 'sufficient cause' the Court said that "What constitute "sufficient cause" cannot be laid down by hard and fast rules." mentioning the judgment of the Supreme Court in Bhivchandra Shankar More v. Balu Gangaram More, Civil Appeal No. 4669 of 2019 where it was held that "It is fairly well-settled law that "sufficient cause" should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bona fide could be imputable to the appellant."
The Court while allowing the appeal stated that the appellant has given sufficient explanation for her non-appearance before the Family Court and the unrebutted explanations offered by the appellant are bonafide and deserve to be accepted.
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