Hiralal Sahu vs Prabha Sahu

Heard.

The present appeal is against the order dated 28.07.2022 passed by Family Court, Balodabazar, District Balodabazar-Bhatapara (CG) in Misc Civil Suit No.05/2021 whereby an application filed by the respondent under Order 9 Rule 13 CPC was allowed.

Brief facts of this care are that an ex-parte order granting a decree of divorce was passed on 11.08.2021 in HMA No.30A/2019 by the Family Court, Balodabazar. Being aggrieved by such ex-parte judgment an application under Order 9 Rule 13 CPC was filed by the wife to set aside the ex-parte order. The wife contended that on ex-parte proceeding which was on 25.03.2021 on that date she was indisposed and there was no deliberate reason for her to not to come and attend the divorce case which was pending. It is stated that it was after the decree, when the husband wanted to get the house forcefully vacated and asked the wife to go away, then only she came to know about the ex-parte proceeding. Thereafter, immediately an application under Order 9 Rule 13 CPC was filed to set aside the order. Learned Family Court after evaluating and giving opportunity to parties to place evidence, set aside the order and remitted back the matter for adjudication on the merits.

Learned counsel for the appellant would submit that the statement of the wife would show that she deliberately did not attend the date of hearing and as many as 12 hearings were passed without any reason, consequently, the setting aside of the ex-parte order cannot be made only on the mere askance unless sufficient cuase is shown. She placed her reliance in the case of Subodh Kumar Vs. Shamim Ahmad {Civil Appeal No.802-803 of 2021, decided on 03rd of March, 2021} and would submit that under the circumstances, the ex-parte order dated 28.07.2022 may be set aside.

We have heard learned counsel for the appellant and perused the documents and the record.

According to the statement of wife, respondent herein, the ex-parte proceedings were drawn on 25.03.2021 and statement of the wife would show that she has stated that she was ailing on that date and she could only know the date when the husband came after ex-parte decree and asked her to vacate the house. In the cross-examination suggestion was given to her that the proceeding of maintenance is also pending, wherein she answered that she requested to keep both the cases i.e. the maintenance and divorce cases on the same date. She further stated that it is incorrect to say that she has not enquired about the date of hearing, however, she has not gone to the residence of her counsel. Suggestion was also given that date of hearing was being noticed, against such suggestion she stated that she was not technically sound to operate such phone to know the date and she was dependent on her advocate. The similar statements have been made by one Avantika Sahu (AW-2), the daughter, she also stated that on 25.03.2021 when the ex-parte proceedings were drawn she was not well and because of such fact they could not attend the date.

In a proceeding of divorce, it would always be better if the cases are decided on merits, there are chances of reconciliation too, which may occur during the hearing. The reason which is been assigned that on 25.03.2021 the wife was not well and could not appear, the statements have been made on oath and we are of the opinion too that the cases of the like nature the Court should not adopt the hyper technical view and it is always better that the cases are adjudicated on merits. Therefore, the reason which has been assigned by the respondent appears to be reasonable and we do not find any extraordinary circumstances to interfere with the order dated 28.07.2022, whereby the ex-parte judgment and decree for grant of divorce was set aside and the parties were relegated to contest the case on merit before the Family Court. Consequently, we decline to interfere with the order dated 28.07.2022.

In a result, the appeal fails and is dismissed.