THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE G.CHANDRAIAH FCA 208 OF 2010 10-11-2010 BETWEEN; Thota Shiva Prasad ...Appellant vs. Smt Thota Radhika ...Respondent THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE G.CHANDRAIAH FCA 208 OF 2010 ORAL ORDER: (Per GR,J) Yesterday when the matter was listed and today as well is there n appearance on behalf of the respondent when the matter is taken u though the name of Sri P.Vishnuvardhana Reddy, the counsel for th respondent is reflected in the cause list. Sri P.Vishnuvardhan Reddy has filed vakalat on behalf of the respondent. The substantive appeal is heard as the matter falls in a limite compass. The appellant had filed O.P.No.28 of 2009 on the file of th Family Court-cum-III Additional District Judge, Warangal for dissolution o his marriage with the respondent under Section 13(ia) and (ib) of the Hind Marriage Act,1955 on several grounds. When the matter was listed on 30 03-2010, the appellant was not present. Hence the O.P was dismissed fo default. The appellant thereupon filed an application in IA (SR) No.600 o 2010 to set aside the order dated 30-03-2010 dismissing the O.P fo default. The cause for the non-appearance of the appellant or his counse before the court below is stated in paragraphs 4 to 6, namely that th appellant’s counsel was not available as he was preoccupied in anothe court in Warangal. Though such a cause is irrelevant particularly i matrimonial proceedings in the Family Court where counsel are permitte to appear only by leave of the Court; to enable the appellant to pursue th substantive application before the Family Court on merits we consider appropriate to allow this appeal on terms. It also requires to be notice that the order dated 04-05-2010 passed by the Family Court, Waranga rejecting I.A(SR) No.600 of 2010 records irrelevant reasons for rejection o the application to set aside the order dismissing the O.P for default. Th order reads as under:- “the petitioner/husband filed divorce petition on the ground that hi wife(respondent ) is suffering from P3 deficiency which is not at all ground mentioned for the ‘divorce’ as mentioned in Sec.13 of H.M.Ac So no worthwhile purpose can be served by entertaining this petition by again restoring main O.P to file which was dismissed for thi reason. It is nothing but abuse for the process of the Court. Hence thi petition is rejected”. No pronouncement on the merits of the appellant’s case in the O. was warranted in an application seeking setting aside of the orde dismissing the O.P for default. For the aforesaid reasons, the appeal is allowed. The order dated 04 05-2010 is set aside. The order dated 30-03-2010 dismissing the O. No.28 of 2009 for default is also set aside on condition that the appellan pays an amount of Rs.5,000/-(Rupees Five Thousand only) to th respondent by way of an account payee demand draft drawn on nationalised bank in favour of the respondent and files th acknowledgment of payment, obtained from the respondent before th Family Court, Warangal within a period of three(3) weeks from today. I default of such payment and filing of proof of payment, this appeal sha stand dismissed. The appellant is also directed to participate in th proceedings regularly whenever the O.P is listed and cooperate in th expeditious disposal thereof. The Court below is directed to consider th expeditious disposal of O.P. The Appeal is allowed as above. No order as to costs. ______________ GODA RAGHURAM,J ______________ G.CHANDRAIAH,J 10th NOVEMBER 2010. Note: Issue CC in three Days. (B/O) TSNR