IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.636 of 2009 SANJEEV KUMAR SINGH Versus SMT. RENU DEVI ----------- 19 17.3.2010 Heard learned counsel for the parties and perused the impugned order dated 22.6.2006 whereby the Principal Judge, Family Court, Bhagalpur dismissed Misc. Case No.6/06 and rejected the prayer of the appellant for restoring Matrimonial Case No.50/03 which had been dismissed for default in appearance of the appellant on 20.2.2006. From the materials discussed by the court below in the impugned order, it is clear that a medical certificate had been filed by the appellant that he fell ill on 19.2.2006 on account of diarrhoea and was advised bed rest till 21.2.2006. It is the case of the appellant that due to such illness, he was forced not to appear in the matrimonial suit on 20.2.2006 but he could not avoid appearance in a criminal case filed by the respondent wife on 21.2.2006 when the matter was fixed for framing charges. The court below has drawn adverse inference 2 only because without availing bed rest till 21.2.2006, he appeared in the criminal case on 21.2.2006 but did not appear in the matrimonial case on 20.2.2006. From the materials on record, we are satisfied that sufficient cause had been shown by the appellant for not appearing in the matrimonial suit on 20.2.2006. The impugned order refusing to restore the matrimonial suit for default in appearance for one day and dismissing the Misc. Case No. 6/06 is found based upon hyper technicality and is against the interest of justice. The said order is, therefore, set aside. The direction of the court below for initiating a contempt proceeding against the appellant on account of medical certificate submitted by him shall also stand set aside. This appeal is allowed and Matrimonial Case No.50/03, pending before the Principal Judge, Family Court, Bhagalpur is restored to its original file. There shall be no order as to costs. Before parting with this order, we would like to observe that judicial orders require a positive temperament which must take care of the natural fall out of an order refusing to restore a case on a hyper 3 technicality. In the present case, a suit for divorce has remained in abeyance for nearly three years only because one of the parties could not appear in the suit for one day. It is expected that the concerned officer shall keep this observation in mind. (Shiva Kirti Singh, J.) (C. M. Prasad, J.) sk