Sumitra Bai vs V.G. Shyamsundar Sah

Swamidurai, J.—This appeal is filed by Sumitra Bai, wife of the respondent herein aggrieved with the order made by the learned District

Judge, Chingleput in I.A. No. 56 of 1989 refusing to set aside the exparte decree made in C.M.A.No.22 of 1988 on his file.

The respondent filed O.P.No.53 of 1986 for nullity of marriage u/s 12 of the Hindu Marriage Act. That petition was allowed by the learned

Subordinate Judge, Kancheepuram. The wife filed an appeal in C.M.A.No.22 of 1988 before the learned District Judge Chengalpattu u/s 28 of

the Hindu Marriage Act. On 30.1.1989 the said appeal was dismissed for default. Then on the same date the wife filed I.A.No.56 of 1989 under

Order 41, Rule 19, C.P.C. for restoring the appeal after setting aside the exparte decree made in C.M.A.No.22 of 1988. In support of that

application, it is represented by the learned Counsel for the appellant that Mr. Nagu Sah, an advocate practising at Madras who appeared for the

appellant in the lower appellate court and the appellant before the lower appellate court filed separate, affidavits stating the reasons for their

absence. This application was resisted by the respondent on the ground that the application under Order 41, Rule 19, C.P.C. is not maintainable

and that there are no just and sufficient reasons for setting aside the ex parte decree also. Learned District Judge, framed two points, namely, (1)

whether there is just and sufficient cause for the absence of the wife before him and (2) whether the application under Order 41 Rule 19, C.P.C. is

maintainable. On both the points, learned District Judge answered against the wife and dismissed the LA. Aggrieved with this order, the present

appeal is filed by the wife under Order 43, Rule 1(t), C.P.C.

Learned Counsel for the respondent Mr. SD.N. Vimalanathan contended that as per Section 28 of the Hindu Marriage Act, an ex parte decree

passed in C.M.A.No.22 of 1988 is a decree that an appeal alone should have been filed as against that decree and that the application under

Order 41, Rule 19, C.P.C. for restoring the appeal, is not maintainable. Section 28 of the Hindu Marriage Act reads as follows:

Appeal from decrees and orders: (1) All decrees made by the court in any proceeding under this Act, shall, subject to the provisions of sub-

Section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to

which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act u/s 25 or Section 26 shall, subject to the provisions of sub-Section (3), be

appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court

given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.

In support of the contention, learned Counsel for the respondent relied upon a judgment in Anjan Kumar Kataki Vs. Smt. Minakshi Sarma, .

There, learned single Judge of Gauhati High Court held that even ex parte decree in proceedings under Hindu Marriage Act, is appealable and that

an application under Order 9, Rule 13, C.P.C. for setting aside the exparte decree made in the appeal, is not maintainable. He also relied upon one

other decision in Om Prakash Vs. Union of India (UOI), . This is a case under Arbitration Act and the facts of that case do not apply to the facts

of the present case and therefore I am not following the same.

Section 21 of Hindu Marriage Act reads as follows:

Application of Act 5 of 1908; Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf

all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.

The rules framed by this Court to regulate proceedings under the Hindu Marriage Act, 1955 (Central Act 25 of 1955) do not show anything about

the procedure to be followed in the filing and disposal of the appeals arising u/s 28 of the Hindu Marriage Act. Section 28 of the Hindu Marriage

Act is silent with regard to ex parte decrees. The section reads as if all the decrees made by the court in any proceeding under this Act shall,

subject to the provisions of sub-Section (3), be appealable as decrees of the court made in exercise of its original civil jurisdiction, and every such

appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

The Legislature has not contemplated the case of an ex parte decree as in the present appeal. No provision has been made for restoring the

appeal which has been dismissed for default in the Hindu Marriage Act. In the absence of any provision u/s 28of the Hindu Marriage Act, Section

21 of the Hindu Marriage Act alone has to be followed wherein the procedure contemplated under the C.P.C. has to be taken as guidance for

disposing of an appeal. Even Section 21 of the Hindu Marriage Act does not prohibit the provisions of C.P.C. to be followed while disposing of an

appeal. What Section 21 of the Hindu Marriage Act says is subject to the other provisions contained in this Act and to such rules as the High

Court may make in this behalf all proceedings under this Act shall be regulated, as far as may be by the C.P.C. 1908. there is no prohibition for

invoking the provisions of the C.P.C. while disposing of an appeal especially when there is no specific provision in the Hindu Marriage Act for

setting aside the ex parte decree or order. In such contingency, the provisions of the C.P.C. alone has to be followed as per Section 21 of the

Hindu Marriage Act.

The application has been filed by the wife under Order 41, Rule 19, C.P.C. for setting aside the exparte decree made in the appeal before the

lower appellate court and according to me, this application is maintainable. When the learned District Judge has dismissed the petition filed under

Order 41, Rule 19,, C.P.C. the procedure open to the party aggrieved has to file an appeal under Order 43, Rule 1(t), CP.C. This has been done

in this case. I do not find any merit in the argument of the learned Counsel for the appellant that the application filed under Order 41, Rule 19,

C.P.C. is not main-tamable before the lower appellant court. Consequently, the Civil Miscellaneous Appeal before this Court under Order 43,

Rule 1(i), C.P.C. is also maintainable.

With regard to the merits of the case, learned District Judge dismissed the application considering the previous conduct of the parties. The

previous conduct of parties or that of the advocate need not be looked into at all while disposing of an application filed under Order 9 Rule 13,

C.P.C Order 9, Rule 13, C.P.C reads as follows:

Setting aside decree ex parte against defendant: In any case in which a decree is passed ex parte against a defendant, he may apply to the

court by which the decree was passed for an order to set it aside and if he satisfies the court that the summons was not duly served, or that he was

prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as

against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit....

Order 9, Rule 13, C.P.C. contemplates that if a party is prevented by any sufficient cause from appearing when the suit was called on for hearing,

the court shall make an order setting aside the decree as against him upon such terms as to costs. That section does not contemplate the conduct of

the party or of the advocate previously appeared for him when the party were called upon to answer as to how he was prevented from appearing

before the lower court by giving sufficient cause. If the appellant has satisfied that he was prevented from appearing before the court by giving

sufficient cause, the court has to restore the application upon such terms and costs only and nothing else. In this case, when the appeal was

dismissed for default, on the same date, an application was filed to set aside the exparte decree immediately with the affidavit of the advocate

appearing for the appellant in the lower appellate court. Learned District Judge has referred to the previous conduct of the parties and ultimately

held that there is no sufficient cause for his absence on the particular date. Especially in an appeal, there is no necessity for the appellant to be

present and the appeal will be argued only by an advocate. Under such circumstances, learned District Judge need not have put it as a bar for

rejecting the application, as if the appellant''s presence was necessary on the same date when he dismissed the appeal for default. Learned Counsel

for the appellant has shown sufficient cause for the absence of the appellant on the date when the appeal was dismissed for default. I am satisfied

with the reasons given by the appellant for his absence on the date when the appeal was posted for hearing and I hold that there is just and

sufficient cause-for his absence and that the appeal deserves to be restored to file.

I.A. No. 56 of 1989 on the file of the learned District Judge, Chengalpattu is therefore allowed. Consequently, this appeal is allowed after

setting aside the order of the lower appellate court. Learned District Judge is directed to take up C.M.A. No. 22 of 1988 on his file and dispose of

it on merits according to law and pronounce the judgment before the end of December, 1991 and report the result of the same to this Court

without fail. In the circumstances, there is no order as to costs.