HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.6073 of 2009 Dated 13.04. 2011 Between: Hannah Leena @ Leena Paul. …Petitioner. And: James Herbert Paul. …Respondent. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.6073 of 2009 ORDER: This revision is at the instance of the petitioner-wife aggrieved by the order of the Court below dismissing her application seeking condonation of delay of 342 days in filing the application to set aside the exparte decree. Heard both the learned counsel. The respondent herein filed O.P.No.88 of 2004 seeking divorce alleging cruelty on the part of the petitioner. It appears that the petitioner who was represented by a counsel, is participating before the Family Court in the present O.P. and also in the maintenance case filed by the petitioner. While the present O.P. was posted for evidence, for cross examination of the respondent-P.W.1, the court recorded that there is default in appearance on behalf of the petitioner or her counsel and that on 19.4.2007 had passed a conditional order to cross examine P.W.1 on 1.5.2007. On that day also, the petitioner and her counsel was not present and consequently, the court below recorded that there is no cross-examination on behalf of the petitioner and decreed the O.P. exparte. The present application is moved by the petitioner along with the petition to set aside the exparte decree seeking condonation of delay of 342 days. In the affidavit filed in support of the application, it is stated that her counsel left Visakhapatnam and shifted to Hyderabad and the petitioner was not aware of the same. It is also stated that the said counsel telephoned from Hyderabad and asked the petitioner to follow-up the present O.P. and as the petitioner was not aware of the date as well as the stage and as she has impression that maintenance case and the present O.P. would be heard together, she made enquiries and on coming to know that the present O.P. was decreed exparte on 1.5.2007, has filed the present application. The respondent has contested this application while pointing out that the O.P. was posted for cross-examination of P.W.1 on various dates and for the last time on 19.4.2007 on which day, the petitioner was present in the Court and she was aware of the conditional order passed by the Court fixing 1.5.2007 for cross examination of P.W.1. It is therefore, seriously contested that there are no reasons and no bonafides in making this application for condonation after such a long delay. Under the impugned order, the Court below did not accept the cause shown by the petitioner in condoning the delay of 342 days as unexplained and refused to set aside the decree. Hence, this C.R.P. While the learned counsel for the petitioner has urged that the Court may take into consideration the cause shown in the affidavit particularly as the petitioner cannot be expected to be well versed with the court procedure and had to depend upon her counsel, learned counsel for the respondent points out the specific averments in the counter of the respondent that the petitioner herself was present in the Court on 19.4.2007 when conditional order was passed, in spite of that, she has failed to appear on 1.5.2007. No doubt, there is specific allegation by the respondent in paragraph 5 of the counter pointing out various dates on which P.W.1 was to be cross-examined but was not cross-examined by the petitioner including last hearing on 19.4.2007. The petitioner has not filed any reply affidavit refuting with specific allegations of the respondent Prima facie, therefore what is stated by the respondents in para 5 of the counter affidavit deserves to be accepted. It is however necessary to keep in mind that the petitioner cannot be expected to be well versed with the court procedures and has to depend on her counsel. The affidavit averments itself discloses that her counsel shifted from Visakhapatnam to Hyderabad and the petitioner appears to be unaware of the stages in maintenance case and the present O.P. It is also to be presumed that no party will wilfully suffer an exparte decree, particularly as a matrimonial matter of this nature, where the petitioner is contesting the O.P. by filing a counter, the sudden disappearance of the petitioner from prosecuting the case is apparently for the reasons of non-communication from her counsel. That aspect coupled with the aspect as to whether the petitioner’s absence is deliberate and wanton is not made out. Even otherwise, as seen from the Judgment of the family Court allowing the said O.P. on 1.5.2007 there are no reasons except default of petitioner. For the sake of convenience, the said order is extracted hereunder. “This is a petition filed by the petitioner/husband/wife of the respondent under Section 10 (ix) of divorce Act, for dissolution of the marriage dated 20.10.88 performed between the petitioner and the respondent and for such other relief or reliefs. Respondent called absent. No representation, set exparte. P.W.1 evidence affidavit filed. Claim proved. Petition is allowed.” In a matrimonial matter, the manner in which family court allowed the O.P. leaves several things to be desired. Even an exparte order must be supported by reasons is well settled and it is appropriate to notice the following paragraphs from the decision of the Supreme court reported in BALRAJ TANEJA AND ANOTHER v. SUNIL MADAN ANDANOTHER ([1]), at paragraphs 40 to 42 reads as follows: “40. There is yet another infirmity in the case which relates to the “judgment” passed by the single Judge and upheld by the Divisional Bench”. “40.A. “Judgment” as defined in Section 2 (9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a Judgment should contain is indicated in Order 20, Rule 4 (2) which says that a judgment: “shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.” It should be a self-contained documents from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.” “41. In an old case, namely, Nanhe v. Saiyad Tasadduq Husain, (1912) 15 Qudh Cases 78, it was held that passing of a mere decree was material irregularity within the meaning of Section 115 of the Code and that even if the judgment was passed on the basis of the admission made by the defendant, other requirements which go to constitute “judgment” should be complied with.” “42. In Thippaiah v. Kuri Obaiah, ILR (1980) 2 Kant 1028, it was laid down that the Court must state the grounds for its conclusion in the judgment and the judgment should be in conformity with the provisions of Section 2(9) of the Code of Civil Procedure. In Dineshwar Prasad Bakshi v. Parmeshwar Prasad Sinha, AIR 1989 Pat 139, it was held that the judgment pronounced under Order 8, Rule 10 must satisfy the requirements of “judgment” as defined in Section 2 (9) of the Code.”B and s.M. and another (AIR 1999 SC 3381 PARA TO 40 TO 42. From this point of view also, exparte judgment and decree is not sustainable and sufficient cause shown by the petitioner deserves to be accepted so that parties will have opportunity to contest the matter and therefore, I am inclined to set side the impugned order and allow I.A.No.424 of 2008 while condoning the delay. Since the another application filed by the petitioner to set aside the exparte decree is also supported by the same cause shown as in support of the present application, with the consent of both the learned counsel, the application to set aside the exparte decree also stands allowed. The family Court shall now proceed with the O.P. by recording the evidence and dealing with the merits of the same and decide the O.P. within three months from the date of receipt of a copy of this order. However, for the lapse on the part of the petitioner in not following up the proceedings of the court, appropriate costs are required to be awarded against her, as the respondent will now have to once again participate in the O.P. for trial which deserves to be compensated. The petitioner therefore shall deposit costs of Rs.2,000/- (Rupees two thousand only) to the credit of the Family Court, Visakhapatnam in O.P.No.88 of 2004 within four weeks from today and on such deposit, the respondent shall be entitled to withdraw the same without furnishing any security. The family court is requested to take up O.P. expeditiously and dispose of the O.P. preferably within three months from the receipt of a copy of this order. Accordingly, this C.R.P. is allowed. No costs. __________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 13.4. 2011 Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.6073 of 2009 Dated 13.04. 2011 [1] AIR 1999 SC 3381