1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 8835 OF 2009 Reena Rajan Mathew ...Petitioner Vs. Rajan P. Mathew ...Respondent Ms.Ria Rajan, Advocate for the Petitioner Mr. Sandesh Patil, Advocate for the Respondent CORAM : SMT.ROSHAN DALVI, J. DATED : 18TH FEBRUARY, 2010 P.C. : 1. Rule. Rule is made returnable forthwith. 2. The parties are husband and wife. The Respondent has been served with writ of summons in the Petition on 15 th May 2009. He was represented by his Advocate Mr. Sandesh Patil who filed his Vakalatnama on 11 th June 2009. The memorandum of address was filed with the Vakalatnama showing the then residential address of the Respondent which was the same as that of the Petitioner. The Respondent filed his written statement on 19 th August 2004. No address of the Respondent was disclosed. It is alleged that before that date the Respondent had absconded. He was 2 nevertheless represented by his Advocate. 3. The learned Advocate for the Petitioner contended that the Respondent’s address has not been known after the Respondent ceased to live with the Petitioner. The Respondent had absconded from there. The Petition is, therefore, served upon the Advocate for the Respondent. The Advocate states that he no longer represents the Respondent who has absconded. He also states that he no longer knows the residential address of the Respondent. The Advocate, however, has produced one salary slip of the Respondent of June 2004 showing that he then served in Pan India Paryatakan Ltd, Gorai Village, Boriwali (West), Mumbai-400 0091. It is not known whether the Respondent serves at the same place also. 4. The address for service upon the party is the address in the Memorandum of Address until the address is changed. When the address is changed the party is bound and liable to show the Court the changed address. Since the address of the Respondent was the same as that of the Petitioner, the fact of change was known to the Petitioner, when the Respondent left the address. However the changed address is not known to the Petitioner. Thereafter the Respondent was represented by the same Advocate. Yet changed address was not brought to the notice of the Court and the Respondent’s Advocate disclaims knowledge of the changed address. 5. The last known address of the Respondent is the present address of the Petitioner where the Respondent no longer resides. Hence, in this Petition the Respondent cannot be served at any other residential address. 3 6. After several years when the Petition remained pending and after interim maintenance application was taken out, order passed and that remained uncomplied and unexecuted, the Petition was taken up for hearing. The Respondent did not appear. The Petition was kept for Ex-parte order. The Respondent sought to have that order set aside by filing his application through the same Advocate. The Court has granted that application and allowed the Respondent, subject to the payment of costs of Rs.1000/-, to contest the Petition. It is that order which is impugned in this Petition by the wife. 7. The learned Judge has only considered that the party who has applied before the Court should be heard. There is nothing erroneous in the order allowing the party to contest the Petition. It is for the Respondent to appear at the hearing of the Petition on the next date of hearing. He has obtained the impugned order and is imputed knowledge of that order. 8. The apprehension of Petitioner is that even if the Respondent is allowed to contest the Petition, he may not contest the Petition and the learned Judge may yet not pass order Ex-parte. 9. Hence whilst upholding the impugned order, it only needs a clarification that the learned Judge shall take into account that the Marriage Petition No.20/2004 has been pending since the last 5 to 6 years. The Petitioner is desirous of prosecuting the Petition. She has regularly attended the Court. She is available for cross examination, if required. The Respondent is seen 4 not to have diligently defended the Petition. He drove the Petitioner to make an application for Ex-parte decree showing the circumstances stated in her application dated 2 nd May 2009. He thereafter, applied for setting aside the order directing the Petition to proceed Ex-parte. His whereabouts are thereafter not known either to the Court, the Petitioner or the Respondent’s own Advocate. Hence the learned 5 th District Judge, Thane who passed the impugned order dated 19 th September 2009 shall now place the Petition on board for its final disposal either by further cross examination, if the Respondent appears to cross examine the Petitioner or for passing an Ex-parte decree, if the Respondent fails to appear. 10.The learned Judge shall place the Petition on board for its disposal within 4 weeks from today and pass the necessary order depending upon the presence or absence of the Respondent at the hearing. The learned Judge shall not adjourn the Petition needlessly. 11.For giving complete opportunity to the Respondent to defend the Petition as desired by him in his application in which the impugned order is passed, the Petitioner shall serve one final notice of the date of hearing as fixed by the Learned Family Court Judge upon the Respondent at the last known residential as well as the office address of the Respondent. 12.The Writ Petition is dismissed except for the above clarification and direction. 5 13.The Advocate Mr. Sandesh Patil representing the Respondent in trial Court states that he no longer represents the Respondent. (SMT.ROSHAN DALVI, J.)