Pradeep Kumar Dutta vs Amrita Dutta

Manojit Mandal, J

1 .This application is at the instance of the plaintiff and is directed against the order dated 26.03.2018 passed by the learned District Judge, Dakshin Dinajpur at Balurghat, in Misc. Case No. 02 of 2017 arising out of Matrimonial Suit No. 142 of 2010, whereby the learned District Judge allowed the application filed under Order 9 Rule 13 of the Civil Procedure Code and set aside the order dated 10.01.2012 passed in Matrimonial Suit No. 142 of 2010.

The plaintiff/petitioner instituted a suit being No. 133 of 2007 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and on 31.05.2008 the said Matrimonial Suit was dismissed for non-prosecution. The defendant/opposite party thereafter instituted a Matrimonial Suit being No. 68 of 2008 under Section 9 of the Hindu Marriage Act on 02.06.2008 before the learned District Judge, Dakshin Dinajpur at Balurghat. The said suit was also dismissed for non-prosecution on 31.08.2015. The plaintiff/petitioner lastly instituted a Matrimonial Suit being No. 142 of 2010 under Section 13 of the Hindu Marriage Act before the learned District Judge, Dakshin Dinajpur at Balurghat. The defendant/opposite party appeared in the said Matrimonial Suit being No. 142 of 2010 pending before the learned Lower Court and she engaged an advocate on behalf of her. Subsequently, the opposite party did not appear before the learned Lower Court in connection with the aforesaid suit. The Matrimonial Suit being No. 142 of 2010 was taken up for ex parte hearing and on 10.01.2012 the said Matrimonial Suit was decreed ex parte in favour of plaintiff/petitioner. Subsequently, the defendant/opposite party filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte order dated 10.01.2012 passed in connection with Matrimonial Suit No. 142 of 2010. A separate application under Section 5 of the Limitation Act was filed praying for condonation of delay. The application filed by the defendant/opposite party under order 9 Rule 13 of CPC was allowed by the order impugned. So, the plaintiff/petitioner filed this application.

Having considered the submissions of the learned Advocates appearing on behalf of the parties and on perusal of the materials available on record, I find that learned Lower Court allowed the application for setting aside the ex parte order on the date of hearing of the application for condonation of delay. The application under Order 9 Rule 13 of Civil Procedure Code could be taken into consideration when the delay in filing the said application is condoned. Learned Lower Court ultimately did not consider the said application under Section 5 of the Limitation Act and did not pass any order in connection with the said application by the impugned order. No reason or ground is given in the impugned order of the learned Lower Court to condone the delay. It is well-settled that the learned Lower Court had no jurisdiction to go into the merits of the application under Order 9 Rule 13 of the Code of Civil Procedure without disposing of the application under Section 5 of the Limitation Act. In fact, the impugned order was passed without considering the application under Section 5 of the Limitation Act. No order could be passed at all prior to such application for condonation of delay being allowed. Revision lies against the order of dismissal of an application under Section 5 of the Limitation Act and the appeal lies against the dismissal of an application under Order 9 rule 13 of the Code of Civil Procedure. But as the learned Lower Court by the impugned order disposed of the applications under Order 9 Rule 13 of the Civil Procedure Code, the plaintiff-petitioner would be debarred to file a revisional application against the order of the application under Section 5 of the Limitation Act. In this context, learned Senior Advocate cites a judgment reported in AIR 2000 Calcutta 280 (Jahar Dey v. Smt. Brojeshwari Saha) where it was held by our Court that Dismissal of application and setting aside of ex parte order by single order is not permissible and the Court should assume jurisdiction to dispose of application for setting aside ex parte order by first disposing of application for condonation of delay.

In that view of the matter, I hold that the impugned order passed by the learned Lower Court is liable to be set aside. So, in setting aside the impugned order, the learned Lower Court is directed to dispose of the application under Section 5 of the Limitation Act at first on merits as early as possible and thereafter, to make further orders on the application under Order 9 Rule 13 of the Code of Civil Procedure in accordance with law without being influenced by this order.

With the above observations, the present application is allowed.

Considering the circumstances, there will be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.