Sukhen Das vs Mampi Das

Biswajit Basu, J

The petitioner was the husband of the opposite party. The petitioner filed a matrimonial suit being Mat Suit No. 822 of 2012 under Section 13 of the Hindu Marriage Act, 1955 before the learned District Judge, Barasat, North 24 Parganas. The said suit was subsequently transferred to the Court of the learned Additional District Judge, Fast Track Court-I, Malda and renumbered as Mat Suit No. 103 of 2012. The said suit was decreed ex parte on March 26, 2013.

The opposite party filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the said ex parte decree registered as Misc. Case No. 01 of 2017. The said misc. case was filed out of time. As such, the opposite party filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the said misc. case.

The learned Trial Judge by the order dated August 17, 2017 allowed the same without putting the petitioner on notice.

The petitioner subsequently filed an application for recalling of the said order dated August 17, 2017 on the ground that the application for condonation of delay was allowed without serving any notice to him.

The learned Trial Judge by the order no. 13 dated May 18, 2018 dismissed the said application holding that since the order dated August 17, 2017 has not been assailed by the petitioner in higher forum, the learned Trial Judge cannot sit on appeal over the said order and dismissed the same on the said ground.

The petitioner has now challenged both the orders dated August 17, 2017 and May 18, 2018.

Mr. Manoj Kumar Roy, learned counsel appearing for the opposite party, submits that although an application under Section 5 of the Limitation Act was filed by his client but the misc. case under Order IX Rule 13 was filed well within time. The application for condonation of delay was filed by way of abundant caution.

Be that as it may, the opposite party since has filed an application praying condonation of delay in filing the Misc. Case No. 01 of 2017, the said application should not have been allowed without putting the petitioner on notice.

The said order dated August 17, 2017 is set aside on the said ground alone with a direction upon the learned Trial Judge to decide the said application for condonation of delay afresh expeditiously in accordance with law.

The point that the misc. case was filed within time is kept open. It is for the learned Trial Judge to decide the same.

In view of the setting aside the order dated August 17, 2017, the order dated May 18, 2018 cannot stand and is also set aside accordingly.

The opposite party since has suffered an ex parte decree of Divorce, the learned Trial Judge is requested to dispose of the application for condonation of delay expeditiously and depending upon the fate of the said application shall expedite the hearing of the connected misc. case, without granting any unnecessary adjournment to either of the parties.

With the above, CO 1774 of 2018 is disposed of. No order as to costs.

In view of the disposal of the revisional application, the connected application for vacating the interim order being CAN 9770 of 2019 has become infructuous and is dismissed accordingly.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.