Civil Revision No.2615 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2615 of 2011(O&M) Date of Decision: May 26, 2011 Kamalpreet Singh .....Petitioner v. Rupinder Kaur .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Ashok Giri, Advocate for the petitioner. Mr.H.S.Bhullar, Advocate for the respondent. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 18.3.2011, passed by learned Additional District Judge, Chandigarh, dismissing application filed by the petitioner-husband for setting aside ex parte order dated 27.2.2010 with a further prayer for allowing him to join the proceedings. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that parties got married on 9.2.2007, as per Sikh rites and ceremonies. However, no issue was born out of the wedlock. Differences arose between the parties. Petitioner-husband filed a petition under Section 9 of the Hindu Marriage Act (for short `the Act') on 4.8.2008. However, respondent-wife filed a petition under Section 13 of the Act seeking divorce on the ground of Civil Revision No.2615 of 2011(O&M) -2- cruelty. Respondent-wife also lodged FIR No.286 dated 29.9.2009 against the petitioner-husband and his other family members. The divorce petition was contested by petitioner-husband. He also filed written statement on 7.9.2009. Case was fixed for evidence of respondent-wife for 7.1.2010, when affidavits regarding examination-in- chief of respondent-wife, her father and other witnesses were tendered and, however, the case was adjourned for their cross-examination for 27.2.2010. However, as none appeared for petitioner-husband on 27.2.2010, hence, he was proceeded ex parte. An application was filed on behalf of the petitioner-husband for setting aside ex parte proceedings dated 27.2.2010 on the plea that his counsel inadvertently noted down the date of hearing as 28.2.2010 instead of 27.2.2010 and that when he came to know that he has been proceeded ex parte, he filed the present application for setting aside ex parte proceedings dated 27.2.2010. Application was contested by respondent-wife. Issues were also framed by learned trial Court on the application and reply thereof. On behalf of the petitioner-husband, his counsel, Shri Amarjit Singh, appeared in witness box as AW/1 and tendered affidavit of his examination-in-chief as AW1/A, in which he deposed that inadvertently he noted down the date of hearing as 28.2.2010 instead of 27.2.2010 and due to his non- appearance, petitioner was proceeded ex parte on 27.2.2010. However, his plea was not accepted by learned trial Court and the application for setting aside ex parte proceedings was dismissed. It has been contended by learned counsel for the petitioner that petitioner was not required to appear in person before learned trial Court as Civil Revision No.2615 of 2011(O&M) -3- the date was fixed for evidence of respondent-wife and his counsel was to appear and, however, on 27.2.2010, he could not appear as he inadvertently noted down the date of hearing as 28.2.2010 instead of 27.2.2010 and as 28.2.2010 was Sunday, he came to know about the ex parte order on 29.2.2010 and hence, he filed the application for setting aside the ex parte order dated 27.2.2010. It is further contended that merely on the ground that petitioner is not appearing in criminal case instituted at the instance of respondent-wife, it cannot be said that he is having no right to contest the present petition through his counsel. On the other hand it has been argued by learned counsel for the respondent-wife that the present petition is not a bona fide one and rather the petitioner-husband had gone abroad and is not appearing even in criminal proceedings. It is pertinent to reproduce Order IX Rule 7 of the Code of Civil Procedure (for short `the Code') which reads as under:- “Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non- appearance.- Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non- appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.” A bare perusal of the aforementioned provision shows that where the Court has adjourned the hearing of the suit ex parte, and defendant at or before such hearing, appears and assigns good cause for his Civil Revision No.2615 of 2011(O&M) -4- previous non-appearance, he could be heard in answer to the suit as if he appeared on the day fixed for his appearance. In the present case, on the date fixed when petitioner was proceeded ex parte, case was fixed for evidence of respondent-wife. Rather affidavits of three witnesses were already filed on the previous date of hearing and on that date, they were to be cross-examined by counsel for the petitioner. However, counsel for the petitioner did not appear on that date, and hence, petitioner was proceeded ex parte. Counsel for the petitioner appeared and filed affidavit of his examination-in-chief admitting that he wrongly noted down the date of hearing and hence, he could not appear on 27.2.2010. Hence, in view of these facts, there was sufficient ground for learned trial Court to set aside ex parte proceedings against petitioner- husband. Application of the petitioner-husband has been declined by learned trial Court mainly on the ground that he is not appearing in a criminal case instituted against him at the instance of respondent-wife. However, in civil proceedings he was not required to appear in person on the date fixed and rather his counsel was to cross-examine the witnesses of respondent-wife. Hence, due to fault of counsel for the petitioner-husband, petitioner-husband cannot be made to suffer. However, as action of petitioner-husband has caused delay in decision of petition filed by respondent-wife, hence for that purpose respondent-wife can be compensated by way of cost. The present revision petition is accepted. Impugned order passed by learned trial Court is set aside. As a consequence thereof, application filed by petitioner-husband under Order IX Rule 7 of the Code Civil Revision No.2615 of 2011(O&M) -5- for setting aside ex parte proceedings dated 27.2.2010 against him is allowed and the said order dated 27.2.2010, vide which petitioner-husband was proceeded ex parte is also set aside. Petitioner-husband shall now be permitted to participate in the proceedings as per law and cross-examine the witnesses of respondent-wife. However, petitioner-husband is burdened with cost of `20,000/-, which shall be a condition precedent. 26.5.2011 (Ram Chand Gupta) meenu Judge