IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 69 OF 2010 Major Joydeep Mazumdar ….....Appellant. Versus Smt. Bharti Jaiswal ….…Respondent. Present:- Shri A.V. Pundir, Advocate for the appellant. Shri B.P. Nautiyal, Advocate for the respondent. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (Oral) 1. This is a Delay Condonation Application No. 9318 of 2010 for condonation of delay in filing the appeal against the judgment and decree dated 10.9.2010 passed by the Principal Judge, Family Court, Dehradun in Suit No. 336 of 2008. 2. Heard and perused the affidavit. 3. 18 days’ delay in filing the appeal is condoned. Delay Condonation Application No. 9318 of 2010 stands allowed. 4. Also heard on admission and perused the impugned ex parte decree dated 10.9.2010 passed by the trial court under Section 22 of the Special Marriage Act, 1954 directing the appellant to discharge matrimonial obligations relating to conjugal rights of the respondent. Since both the parties are represented through counsel and they were heard at length, we feel it just and proper to dispose of this appeal summarily. 5. Admittedly, the parties to the matrimony got married under Special Marriage Act, 1954. It appears that the respondent (wife) filed Suit No. 336 of 2008 for restitution of conjugal rights. The husband (appellant) appears to have filed suit before Vishakhapatnam Court for divorce. Before the 2 impugned ex-parte decree was passed for restitution of conjugal rights, the decree of divorce had already been passed by the Vishakhapatnam Court. During arguments, learned counsel for the parties admitted that on the date (10.9.2010) when impugned ex parte decree was passed by Dehradun Court, the decree of divorce passed by Vishakhapatnam Court, was in operation (but now it is said that the said decree has been set aside). 6. In the above circumstances, this appeal is summarily allowed. The ex parte judgment and decree dated 10.9.2010 passed in Suit No. 336 of 2008 under Section 22 of Special Marriage Act, 1954 is set aside. The case is remanded back to the trial court for deciding the suit afresh after giving opportunity to the appellant of hearing. Both the parties are directed to appear before the trial court on 4th of December, 2010. 7. Stay Application (CLMA No. 9319 of 2010) stands disposed of. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 10.11.2010 Avneet