Kiran Gandharwa (Smt.) vs Rajendra Gandharwa

N.K. Agarwal, J.—This is first appeal arising out of the judgment and decree dated 26-7-2006 passed by IInd Additional District Judge, Rajnandgaon in C.S. No. 37A/ 2006 whereby and where under, learned trial Court has passed decree in favour of the respondent husband for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955 (briefly the Act).

Undisputed facts of the case are that the appellant is legally wedded wife of the respondent The marriage solemnized between them on 11-5-2003 at Drug. They lived together at village Korinbhata, Rajnandgaon for six months after marriage.

As per the respondent''s application u/s 9 of the Act, the appellant left matrimonial home after 15 November, 2003 without intimating the respondent and went to the house of her brother-in-law at Rajnandgaon. There she lived for 15-20 days and thereafter she went to her paternal house at Durg, from where she sent notice dated 15-12-2003 to the respondent/ husband which was dully replied by him. Thereafter respondent''s father approached the community president for resolution of the dispute, if any, but the community person could not render any decision, however they found the appellant at fault. Thereafter the respondent filed an application for restitution of conjugal rights. That was resisted by the appellant on the ground that she was ill-treated for the demand of motorcycle in lieu of dowry by the respondent who also ousted her from the matrimonial home, therefore no option was left with the appellant but to leave the house and go to the house of her brother-in-law. She has further stated in the reply that the respondent mixed Lizard in the food so that she may die and for that she remained in hospital for two days. Based on the pleadings of the parties, the trial Court framed issues.

During trial, the appellant remained exparte. The respondent examined two witnesses i.e. himself and one Komar Das. Learned trial Court on appreciation of the evidence led by the respondent/documents filed and submission made, held that the appellant has without reasonable excuse withdrawn from the society of the respondent; the appellant failed to prove any demand of dowry; passed the decree of restitution of conjugal rights. Hence this appeal.

Shri M.K. Bhaduri, learned counsel for the appellant would submit that the impuened judgment and decree is erroneous on two counts, first, on 26-7-2006, when the case was fixed for evidence, neither the appellant nor her counsel appeared in the case, nor appellant''s counsel intimated to the appellant for her appearance before the Court and, therefore, the exparte proceedings against the appellant is bad, secondly, learned trial Court has not discussed the matter in detail before passing the decree for restitution of conjugal rights. In support of his submission, reliance has been placed upon the judgment in case of Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and another, .

Per contra, Shri Tiwari, learned Sr. Counsel appearing for the respondent would contend that the appellant was negligent through out in conducting her case; for the reason best known to her, she did not challenge the decree by filing application under Order 9 Rule 13 of C.P.C. for setting aside exparte decree; the trial Court after considering every aspect of the matter passed the decree which deserves to be upheld. In support of his submission, he placed reliance upon the judgment in the case of Nagar Palika Nigam, Gwalior Vs. Motilal Munnalal, , Smt. Maya Devi and others vs. Mehria Gram Dall Mill, Hissar and others reported in AIR 1988 Punjab and Haryana would contend that the appeal cannot be converted into proceeding for setting aside exparte decree.

I have heard learned counsel for the parties, perused the record of the case and the impugned judgment and decree.

A bare perusal of the order sheet of the trial Court would reveal that the appellant was negligent through out in prosecuting her case before the trial Court. On 9-2-2005, she was proceeded exparte. On 4-5-2005, exparte proceeding was set aside and the case was again fixed for framing issues. Again on 17-11-2005, she remained absent and the case was fixed for respondent''s evidence on 30-12-2005. On 30-12-2005 again she remained absent. On 13-2-2006, at the stage of final argument, she again moved application under Order 9 Rule 7 of C.P.C. for setting aside exparte order, which was not found bonafide and the same was dismissed by the trial Court. Again vide order dated 1-4-2006, she has been permitted to participate in the proceeding and to submit her argument. Again on 21-4-2006, her application u/s 151 of C.P.C. was allowed by the trial Court and she has been permitted to cross-examine the applicant''s witnesses and the case was fixed on 26-6-2006. On 26-6-2006, the case was adjourned on appellant''s request. It is pertinent to mention her that on 26-6-2006, the appellant herself was present in the Court and the next date i.e. 26-7-2006 was well within her personal knowledge. She remained absent on 26-7-2006 and thereafter her opportunity to cross-examine the applicants witnesses was closed and the judgment has been passed.

The Supreme Court in case of Bhanu Kumar Jain vs. Archana, Kumar and another reported in 2005 AIR SCW 270 has observed in pars 24 of its judgment that:- An appeal against an exparte decree in terms of Section 96(2) of the Code could be filed on the following grounds :- (i) The materials on record brought on record in the exparte proceedings in the suit by the plaintiff would not entail a decree in his favour and (ii) The suit could not have been posted for exparte hearing.

In the facts of the present case, it would be crystal clear that learned trial Court has rightly proceeded exparte against the appellant. More over the appellant has not preferred any application under Order 9 Rule 13 of C.P.C. for setting aside exparte judgment and decree by showing sufficient cause for her non-appearance on the date when the trial Court proceeded exparte against her. Scope of challenge to the exparte proceedings in an appeal u/s 96(2) of C.P.C. is limited to the extent that the suit could not have been posted for exparte hearing which is not the position here. The judgment cited by the appellant in the facts and circumstances of the present case is of no help to him, she could not contend that there is sufficient cause for her non-appearance on the date when the case was proceeded exparte against her. It is also not a case where the appellant''s counsel withdrew from the case or pleaded no instruction without intimating the appellant, on the contrary the date i.e. 26-7-2006 as alleged by the appellant was well within the knowledge of the appellant. The judgment and decree has been passed by the trial Court after considering every aspect of the matter and no fault can be found in it.

In view of the foregoing, I do not find any infirmity/ illegality in the judgment and decree passed by the trial Court. The same deserves to be and is hereby upheld.

In the result, the appeal is dismissed.

No order as to costs.