^-7 HIGH CQURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, First Appeal (M) No. 76 of 2009 Appellant Respondent Vs. Smt. Anjali Ranka Shri Tushar Ranka JUDGMENT FOR CONSIDERATION Hon'ble Shri Dhirendra Mishra, J. Sd/.. R-N. Chandrakar Judge Sd/- Dhirendra Mishra Judge POST FOR JUDGMENT ON 0^-9-2010 Sd/- Dhirendra Mishra Judge HIGHCOURT OF CHHATTISGARH AT BILASPUR Coram: Hon'bleShri Dhirendra Mishra, & Hon' bleShri R.N. Chandrakar, JJ First Apoeal (MtNo. 76 of^009 Appetlant/ Applicant Vs. Respondeny Non-applicant Smt. Anjali Ranka, 29 years, w/o. Shri Tushar Ranka, D/o. Shri Shantilal Parakh, Ravi Nagar, Raipur. Shri Tushar Ranka, 30 years, S/o. Shri Sohanlal Ranka, Nathani Building, Budhapara, Raipur. (FirstAppeal under Section 19 ofthe Family CourtAct, 1984) Present: Shri Raja Sharma, counsel for the appeltant. Shri B.P. Sharma with Shri Vivek Chopra, counsel for the respondent. JUDGW1ENT (Deliveredon oS -9-2010) Per Rananath Chandrakar, J. 1. This appeal is directed against the order dated 6-8-2009 passed in civil case No. 15 of 2009 whereby learned Ist Additional Principal Judge, Family Court, Raipur, has rejected the application of the appellant under Order 9 Rule 13 read with Section 151 of the C.P.C., to set aside ex parte decree/order dated 7-3-2006 passed by llnd Additional Principal Judge, Family Court, Raipur, in Civil Suit No. 154-A/2005. 2. Learned counsel appearing for the appellant submits that an application for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1956 was decided ex'parte on 7-3-2006. The court below having prpceeded ex parfe, allowed the amendment application under Order 6 Rule 17 of the CPC, recorded the statements and decreed the case Without appreciating the fact that when conjugal rights were resumed as a result of reconciliation efforts made by the trial court which reflects from - ^ . >.'*•'""? ^, •""¥. its order sheet dated 11-1-2005, the application for restitutionof conjugal rights became infructuous. Thereafter, the appellant and respondent were living together in her matrimonial house. She was ill and was confident that her husband would take care of proceedings of the court but her husband clandestinely appearing alone in the court proceedings obtained ex parte decree. She was driven out of her matrimonial home on 5-4-2007 and thereafter, her father enquired about the case and discovered ex parte decree. As the appellant was ill and suffering from refractory seizure disorder (epilepsy), she applied for setting aside ex parte decree immediately after she recovered from ill-health with an application for condonation of delay caused due to illness. The impugned ordec is perverse as neither any notice has been served on the appellant for compliance of the decree nor any execution proceedings have been launched till date. The respondent waited for lapse of statutory period for filing divorce case on the ground of failure on the part of the appellant/wife to comply with the deeree which shows his intention and conduct behind obtaining the ex parte decree that he was ab initio not interested in restitution of conjugal rights but was preparing technical grounds for divorce. Therefore, the impugned order of the Family Court be set aside by allowing the applicatidn under Order 9 Rule 13oftheC.P.C. Per contra, learned counsel appearing for the respondent submits that the appellant was proceeded ex-parte on the basis of her non- appearance on several dates. He further submits that the appellant in her application under Order 9 Rute 13 of the C.P.C., along witth an application for condonation of delay of 1 % years, has stated that she was su'ffering from epitepsy, therefore, she could not attend the court proceedings. Neither the appellant has produced medical documents in support of her contention nor has shown sufficient cause for condoning ^ cs) k,. the aforesaid delay, therefore, the contention of the appellant cannot be accepted and the trial Court has rightly dismissed the application of the appellant. We have heard counsel for both the partiesand perused the record of the family court. From perusal of the records of the court below, it is clear that irrespective of the pther dates of previous proceedings in which the appellant/wife appeared before the court either with her father or through her counsel. On 3-2-2005 the appellant/wife informed the courtthat she was living with the respondent/husband and the case wasfixed on 4-3-2005. On 4-3-2005 the appellant and respondent appeared with their fathers and on the prayer of appellant the case was fixed on 4-4-2005, on that day both the parties appeared but the case was adjourned due to absence of the Presiding Officer and the case was fixed on 18-4-2005. The case was called on 19-4-2005 as the date 18-4-2005 was declared holiday. On that day theappellant was absent and the respondent was ordered to pay a fresh process fee by both the modes and the case was fixed on 15-6-2005 for appearance of the appellant. On 15-6-2005 the appellant appeared through her father with an application for condonation of her non-appearance and on the same date issues were framed and the case was fixed for evidence of the parties on 20-7-2005. On 20-7-2005 the case was transferred to the court of llnd Additional Principal Judge, Family Court where both the. parties appeared. Thereafter, on 2-8-2005 the appellant was represented through her counsel and she appeared on "25-8-2005, 19-10-2005 and 20-12-2005. Subsequently, shecontinuously remained absent on 28-1-2006, 10-2- 2006, 13-2-2006 and 7-3-2006, therefore, the Family Court passed ex parte order in favour of the applicant/husband. Thus, it is clear that the appellanVwife deliberately avoided her appearance before the court after 'f- W^r-'"'" '. \ ' .:.'-* h y /i. '•^-/'^/ >"sy.-y ""•y^ the case was fixed for evidence which compelled the court below to proceed ex parte against herand pass ex parte decree. So far as the contention of learned counsel for the appellant that as the reconciliation was effected, the petition for restitution of conjugal rights became infructuous is concerned, it is settled principle of law that the petition cannot be deemed to be infructuous only on the basis of the opportunity for reconciliation given to the parties by the court as is revealed from order sheet dated 3-2-2005 and 4-3-2005. Apart from this, on 4-3-2005, the appellant herself prayed the court to call her after some time and,on her prayer the case was fixed on 4-4-2005 for further proceedings and thereafter she filed written statement in the case, issues were framed and the case was fixed for evidence. Thus, there is no force in the above submission ofthe learned counsel forthe appellant because the court belowwould not have proceeded further, after reconciliation or the appellant had not sought another date on 4.3.2005 for hearing if the conciliation had taken place and the petition had become infructuous. Now, the only question remains to be considered is whether the delay caused by the appellant in filing the application under Order 9 Rule 13 of the C.P.C., was bona fide or not. It is evident from perusal of the record of the court below that after 4-4-2005 she remained absent on 19-4-2005 and was issued notice for her appearance, thereafter, she Was represented by her fatheron 15-6-2005 and case was fixed for evidence on 20-7-2005. Thereafter, she appeared before the.court below on various dates and there is no evidence on record to show that after 19-4- 2005 when shewas summoned through notice, she was residing with her husband/respondent. Thus, it cannot be held that she was residing with her husbnand till 5-4-2007 and was in presumption that her husband would take care of the proceedings of the court below but her husband clandestinely appearing alone in the court proceedings obtained ex parte ../-i*«»s.^ .(^"•^ '>^'v/ -^: 8. decree. Apartfrom this, the appellant admitted In her (TOSS examlnation in para 15, recorded in Civil M.J.C.No. 15 of 2009 in pursuance of her affidavit filed under Order 18 Rule 4 of the CPC., diiied 6-1-2009 thal she cannot explain the delay even for the period between 30-3-2007 to 10-9-2007 i.e., about six months, despite the fact that i)n 30-3-2007 she received the notice of divorce case filed by the respondent but she filed application under Order 9 Rule 13 of the CPC on 10-1f-2007. 8he has not even produced any medical documents about her illness along with the application under OrderS Rule 13 ofthe CPC followed by application for condonation of delay. Thus, it is clear that the appellant has nol been able to show sufficient ground for condonation ol inordinate delay of 1 1/2 years to set aside the ex-parte decree dated 7 .3-2006. The trial Court, considering all these aspects dismissed hor application for condonation of delay and consequently her applieatii;in under Order 9 Rule13oftheC.P.C. indisputably original decree was passed againstthe niin-applicant/Anjali Ranka way back in the year 2006 and the non-applicant caused her non- appearance before the trial Court on 28-1-2006, 10-2-2006, 13-2-2006 and 7-3-2006, therefore, the trial Court proceeded ex parte against her and passed ex parte decree on 7-3-2006 in favour of the respondenVhusband. She did not initiate any procueding for setting aside ex parte decree immediately after passing the ex parte deoree dated 7-3-2006. She did not file even any medical- dcii;ument about her illness in support of her contention along with appllcadon under Order 9 Rule 13 of the CPC followed by an application frii condonation of inordinate delay of 11/4 years. The ground(s) iiientioned in the application does not show sufficient reason to treat ttiii delay bona fido and condone the same. In these circLimstances, we iire of the opinion 'N ^-s**^-. '.<*'"a< ^, ^---. ^" ^ 9. that thelearned Ist Additional Principal Judge, FamilyC.ourt, Raipur, has not committed any illegality or infirmity in passing thfc inipugned order.. tn the result, this appeal deserves to be and is accordiiiDly dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judae Raju \". - Wy.