1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.130 OF 2008 Vijay Sahebrao Bahirat ..Applicant V/s. Sau.Minal Vijay Bahirat ..Respondent Mr.Venkatesh A. Shastry, Advocate, for applicant Mr.A.V.Chatuphale, Advocate, for respondent CORAM : J.H.BHATIA, J. DATE : 13TH FEBRUARY, 2008 P.C. . Heard learned counsel for the parties. The applicant is a husband and the respondent is a wife. The applicant had filed Marriage Petition No.163 of 2005 in the Court of Civil Judge, Senior Division, Pune for a divorce and an ex-parte decree was passed on 23th November, 2005 in favour of the husband. The wife-respondent filed an application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 on 25th September, 2006 for setting aside the ex-parte decree giving several reasons therein. That application came to be registered as Miscellaneous Civil Application No.672 of 2006. The husband filed his Written Statement contesting that application. In paragraph 1, he contended 2 that the application itself is not tenable under law. In paragraph 2, he contended that the Court had no jurisdiction or power to hear the application. In paragraph 3, he contended that the application was barred by limitation and without filing an application for condondation of delay, the application under Order IX, Rule 13 is not tenable. The Written Statement was filed on 5th February, 2007. Besides the above Written Statement, the husband-applicant also filed an application Exh.27 on 22nd November, 2007 contending that in view of the provisions under Order VI, Rule 11(d) of the Code of Civil Procedure, 1908, as an appeal could be preferred against the ex-parte decree, the application for that purpose is not tenable under law and therefore, the application is liable to be rejected. The impugned order below Exh-27 was passed by the learned 10th Joint Civil Judge, Senior Division, Pune on 20th December, 2007 whereby the application Exh-27 was rejected. Against that order, the present revision application is filed. 3 2. The learned counsel for the applicant- husband contended that the trial Court has not considered the question of limitation raised in the Written Statement. According to him, the pursis Exh-28 was filed on 17th December, 2007 pointing out that the application is barred by limitation and in support of that contention six authorities were referred. According to the learned counsel, the application Exh-27 came to be rejected without cosideration of the question of limitation and the authorities and impugned order is liable to be set aside. The learned counsel for the respondent-wife contends that the question of limitation was not under consideration while deciding the application Exh-27 and the impugned order is limited to decision of the application Exh-27 while the main application filed by the respondent-wife under Order IX, Rule 13 of the Code of Civil Procedure, 1908 is still pending. 3. Perused a copy of Civil Revision Application as well as the impugned order. 4 4. The impugned order clearly reveals that at the time of argument on Exh-27 the learned counsel for the applicant-husband had raised two legal questions. Firstly, the application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 is not tenable in view of the bar under Section 28 of the Hindu Marriage Act and secondly, the application filed by respondent-wife was liable to be rejected under Order VI, Rule 11(d) of the Code of Civil Procedure, 1908. The learned trial Court after hearing the counsel for the applicant-husband rejected both the contentions and found that the application for setting aside the ex-parte decree under Order IX, Rule 13 of the Code of Civil Procedure, 1908 is tenable and Section 28 of the Hindu Marriage Act does not bar such application. In view of this, the learned trial Court found that the application was not liable to be rejected under Order VI, Rule 11(d) of the Code of Civil Procedure, 1908. The order does not reveal that any argument was advanced on the point of limitation. It may be noted that the learned counsel for the applicant-husband before this Court 5 does not challenge the finding of the trial Court that the application for setting aside the ex-parte decree under Order IX, Rule 13 of the Code of Civil Procedure, 1908 is tenable and is not barred under Section 28 of the Hindu Marriage Act. In view of this, practically there is no challenge to that order. 5. The contention that the question of limitation has not been considered is devoid of any merits because the application filed by the respondent-wife under Order IX, Rule 13 of the Code of Civil Procedure, 1908 is still pending and the applicant-husband has filed Written Statement to that application and in that Written Statement he has raised a question of limitation and has also contended that the application itself couldnot be tenable because no application for condondation of a delay was filed. These objections are yet to be considered by the trial Court while hearing the application of the respondent-wife. In view of this application, I found no substance in the present revision application. 6 6. It appears that the applicant-husband has filed present revision application and has compelled the respondent-wife to appear before this Court and to engage a lawyer to contest this revision application which was totally unnecessary and unwarranted particularly, when the findings of the trial Court on Exh-27 have not been disputed. Therefore, in my considered opinion, the applicant- husband should be required to pay costs to the respondent-wife. 7. The learned counsel for the applicant-husand relied upon Vijay Prabhakar Salunke vs Kamini S. Dadarkar, reported in 2001(Supp.) Bom.C.R.810 wherein it was held that the application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 filed after a period of limitation ought not to be registered unless question of limitation is decided. This authority could also be considered by the trial Court only when the objection to the application filed by the respondent-wife on the ground of limitation is taken up for consideration. 7 8. Therefore, the revision application stands rejected subject to payment of costs of Rs.2000/- to be paid to the respondent-wife. (J.H.BHATIA,J.)