q - L, 7 o/o 23.O9.2O1L Present: Mr. Rajesh Rajora for counsel for the petitioner. None for the respondent. +CRP No.144l2O1-O >k Respondent was served for the last date i.e. LOth August, 20L1' but she did not choose to appear in the matter. Today also nobody has appeared for the respondent. By this petition filed under Section t?t CpC the petitioner seeks to challenge the order dated 20.4.20L0 passed by the learned Trial Court thereby dismissing the application of the petitioner moved by him under Section 1s1 CpC to seek restoration of the application filed by him under order 9 Rule 9 read with Section 151 cPC. since nobody has appeared to contest the present writ petition, therefore, it can be taken that the respondent is not serious to contest the present writ petition. Even otherwise the application of the petitioner moved by him under Section 151 CPC was dismissed primarily on the ground that the petitioner had failed to take any steps to serve the respondent for the date fixed before the Court. Learned Trial court in the impugned order also observed that in fact the Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified a t L (D counsel for the petitioner had raised a wrong contention before the Court that a request was made by him to seek service of the respondent through learned CJM Almora. The petitioner has filed a divorce petition against his wife under Section 13(1)(ia) of the Hindu Marriage Act, which was dismissed on 3.11.2009. After the dismissal of the said petition, the petitioner had moved an application under Order 9 Rule 9 read with Section 5 of the Limitation Act in the Court where in he has stated that his counsel had noted down wrong adjourned date i.e. 3.1"2.2009 instead of actual adjourned date of 3.11.2009. Learned Trial Court also found that no explanation had been given by the petitioner as to why the steps were not taken by the petitioner to serve the respondent. From the perusal of the said order passed by the learned Trial Court it is quite evident that the said application of the petitioner was dismissed by the learned Trial court because-of the failure of the petitioner to take steps to serve the respondent who is a resident of Almora. This Court feels in such like case of default the better course would have been to impose costs on the petitioner instead of dismissing his restoration application. The endeavour of the Courts should L ,t(, t) always be to decide the cases on merits and not by dismissing cases due to procedural lapses or technicalities unless the conduct of the party is mala fide or contumacious totally undeserving of any discretion of the court. This Court, therefore, deems it appropriate to remand this matter back to the learned Trial Court. The impugned order dated 20th April, 2010 is accordingly set aside. With a view to save further time the petition filed by thg petitioner under Section 13(1)(ia) of the Hindu Marriage Act is directed to be restored. Let further steps be taken by the Trial Court to direct the service of the respondent in the matter. The petitioner is directed to appear before the learned Trial Court on24th October,20tt. September 23, zOlL rkr KAILASH GAMBHIR" J t