IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE THIRTY FIRST DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION Nos.2106 and 5408 of 2008 Between: G. Madhusudhan. ... PETITIONER AND G. Nagamani ...RESPONDENT Counsel for the Petitioner : Mr. K. NARASIMHA CHARI Counsel for the Respondent : Mr. D.V. CHALAPATHI RAO The Court made the following: COMMON ORDER: CRP.No.2106 of 2008 is directed against the order of the learned Principal Senior Civil Judge, Ranga Reddy District, allowing I.A.No.1680 of 2003 in O.P.No.87 of 1999 dated 05.04.2005. 2. While the petitioner is the husband, the respondent is the wife, who filed the aforesaid application seeking condonation of delay of 3 years 5 months in filling the petition to set aside the ex parte decree in O.P.No.87 of 1999 dated 25.01.2000. The respondent herein contended that she along with the petitioner filed O.P.No.87 of 1999 under Section 13-B of the Hindu Marriage Act, 1955 seeking a decree of dissolution of marriage between the petitioner and the respondent dated 29.07.1997. The respondent alleged that the said petition seeking divorce on mutual consent was filed on 02.06.1999 and on that date the petitioner as well as the respondent attended the Court and preliminary enquiry was made and thereafter, the OP was adjourned by six months to 17.12.1999. She claims that thereafter neither she nor her counsel appeared before the Court and in the meanwhile, another proceeding being a complaint under Section 498-A of the Indian Penal Code, 1860 in the Jeedimetla police station was filed by her on 05.11.1999. She further contended that the said OP.No.87 of 1999 was adjourned from time to time i.e. from 17.12.1999 to 30.12.1999 and from 30.12.1999 to 25.01.2000. However, she could not appear on any of the dates and she submits that the learned Principal Senior Civil Judge allowed the OP by dissolving the marriage by noticing that due to the non- appearance of the respondent on the said dates of hearing it is deemed that she is willing for consent divorce and there is no scope of reconciliation. 3. The respondent states that meanwhile, another O.P.No.54 of 2000 was filed by the petitioner under Section 13(1)(ia) of the Hindu Marriage Act, 1955, pending on the file of the II Additional Senior Civil Judge, Ranga Reddy District, was withdrawn by the petitioner on 24.06.2003 as not pressed. The respondent claims that she came to know of the disposal of OP.No.87 of 1999 only when the petitioner withdrew the subsequent OP.No.54 of 2000 on 24.06.2003 and thereafter, she has made enquiries and came to know of all the events which occurred in OP.No.87 of 1999. She had, therefore, filed an application in I.A.No.1680 of 2003 seeking condonation of delay of 3 years 5 months in filing petition to set aside the ex parte decree along with another application to set aside the ex parte decree in OP.No.87 of 1999 dated 25.01.2000. 4. The learned Principal Senior Civil Judge considered the said application for condonation of delay on merits and after examining the same, came to the conclusion that if really the respondent had consented for allowing O.P.No.87 of 1999, she would not have filed any criminal case and the fact that she did not attend on the dates of hearing in OP.No.87 of 1999, after the conciliation period was over, establishes that she had no knowledge of passing of the decree in OP.No.87 of 1999 on 25.01.2000. The Court below, therefore, was satisfied that there was sufficient cause and the delay is explained by the respondent adequately. Consequently, it had condoned the delay by allowing I.A.No.1680 of 2003. The said order is questioned in CRP.No.2106 of 2008. 5. After the condonation of delay application was ordered, the application to set aside the ex parte decree filed by the respondent is numbered, as I.A.No.389 of 2008 and by then the Family Court was constituted so far as Ranga Reddy District is concerned and the said OP.No.87 of 1999 together with I.A.No.389 of 2008 was transferred to the Family Judge, Ranga Reddy District. The petitioner filed an application in I.A.No.560 of 2008 seeking to direct the respondent herein to be present for cross-examination on her affidavit filed in support of the aforesaid IA. The said application was primarily moved in order to confront the respondent with her statement in the criminal proceedings initiated by her under Section 498- A IPC. By order of the learned Family Judge dated 30.10.2008 the said application has been dismissed on the ground that the said application is not necessary. Questioning the said order, the petitioner has filed CRP.No.5408 of 2008. 6. I have heard Sri K. Narasimha Chari, learned counsel for the petitioner and Sri D.V. Chalapathi Rao, learned counsel for the respondnet. 7. The learned counsel for the petitioner has strenuously contended that there are absolutely no bonafides and the huge delay sought to be condoned by the respondent is not supported by a sufficient case and the order of the Court below condoning the delay is unsustainable. The contentions of the learned counsel based upon the Division Bench decisions of this Court in SMT. ANITA V. R. RAMBILAS[1] as well as in Mrs. PADMAKIRAN RAO v. B. VENKATARAMANA RAO[2] are pressed into service to contend that a petition to set aside the ex parte decree or to recall a decree would be maintainable only if there is fraud on the Court and not otherwise and in the present case since there is no fraud attributed to the Court the application to set aside the decree is not maintainable. 8. I am, however, of the view that the said contention of the learned counsel for the petitioner cannot be considered at this stage, as the order impugned in CRP.No.2106 of 2008 is only with respect to the condonation of delay and the application to set aside the ex parte decree is still pending with the learned Family Judge, Ranga Reddy in I.A.No.389 of 2008. The maintainability or otherwise of the application to set aside the ex parte decree, as contended by the petitioner, is, therefore, a matter which the learned Family Judge would consider at the appropriate time while hearing and deciding I.A.No.389 of 2008. The contentions of the petitioner, in that regard, are, therefore, kept open and he is at liberty to urge the said contentions as are permissible under law. So far as the application for condonation of delay, which is subject matter of CRP.No.2106 of 2008 is concerned, since the discretion under Section 5 of the Limitation Act is exercised by the Court below in favour of the respondent, I am not persuaded to accept that the said discretion is necessary to be interfered with under Section 115 of the Civil Procedure Code. Further, the said discretion is not shown to be perverse, which also supports the contention of the respondent that interference by this Court is not warranted. CRP.No.2106 of 2008 is, therefore, liable to be dismissed. 9. So far as CRP.No.5408 of 2008 is concerned, the impugned order of the learned Family Judge states that the Family Judge would consider all aspects with respect to the deposition of the respondent in the criminal case while considering the petition to set aside the ex parte decree and in that view of the matter, it is held that the petition moved by the petitioner in I.A.No.560 of 2008 is unnecessary. The said order also cannot be said to be perverse warranting any interference. As stated above, the petitioner is at liberty to urge all his contentions before the learned Family Judge, Ranga Reddy District when I.A.No.389 of 2008 is being considered by the learned Family Judge. In that view of the matter, CRP.No.5408 of 2008 is also liable to be dismissed. In the result, CRP.Nos.2106 and 5408 of 2008 are dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J March 31, 2010 DSK [1] AIR 2003 AP 32 [2] 1995 (3) ALD 341 (DB)