•-.> ^> ^'••^^^^^S^ SfflGLfc tSW PresentetfbY.Stiri^^ji.^"^^^ "'"'" tlated..-....^.1..'-1-^"^----— IN THE HIGH GOURT OE JUDICATURE INCHHATTISGARH AT BILASPUR ^.y.(2i€> _^tdL^-/°9 Petitioner Non Petitioner M.P.Markande F/o Shri Late.S.P.Markande , age (59),Resident -New Adarsh Nagar,BankColony , Durg,Tahsil and JilaDurg Smt Usha (Dhanmat bai) W/p M.P.Markande age(46) ,Resident-Pulia Road Dhjprapara Durg, Tallsil andJiIaDurg WMTPETITIQNUNDERARTieLE2270FTHECONSTITUTIONOFINDIA ResEfindent Petitioner M< w is^@s^9saB!R»a:wss?»?i!'- .--^' .^: A.' HiGl^QyRl^lE^I^^CTISGARHAT'Bll.ASPUR Sinale Benchr H6n'ble®hrKJustiCePrasMantJ<urr^rlVlishra Petitioner ResDocident Writ Petition(227) No.6494df2009 M.P; Markande versus Smt. Usha (DManmafBai) Present: . .:, : !. .: .' ; ,•.•.'' ShrrManqPararijpe,CG(unselfcirthepetitioner.; Shri SancfeepSHrivastava,eQunselfQrtherespondent. WritPetitian unider;MiBle227o):theConstituti6noflndia @RiM- ®1%BIIR ith (Passed6n1^)l"lsebruary,2Q11) Meard. 2. The Family CQHrt has rejeeteGl petitioner's applicatipn under Order9Rule 7 ofthe Codeofdvil Procedurer19D8 (henceforth'the Code'),.'' .:.,.'' • : • :-;\ 1: 3. ThelFamilyCourtisiriseisinofanappH^ ofthe.Hifid^Marnag^AcS, 1955 (hCT therespondenlAwife.lntM®said'pr6ceeaihg,thepetitionerre^^ absenf QO 29-6-2QQ9. • The; Family Court proceeded ex pafte and decided the respondent's'appliGati&n underSectiQn 2^ merits allowing maihtenance peflGterate fffe (^^Rs.3,0 tothe respQndentandlttigatiohexpensesofRs •1; .. .: ' • '".. • • . 4. The; applieatipn under Grcfer^ & Rylg 7 of the Code was i submitted orf the same day rnaking two foldj submissipn/pi'ayer that ^ '^r-s-.'S^' Ai' the petitiorter should beallQwed to contest the case on merits and should be granted Qpportynity of hearing before deeiding the applicationunderSeGtion24of^heAct. 5. The Family Court, after observing that the application is not supported with an affidavit of the petitioner himself and that ttie affidavit of Shri B.N.Agrawal, Advocate is of no consequenGe because hewas not appointed as am/cus curiae by the Court and instead one Shri SatyawanAgrawal.AdvoGate'was appointed as amicuscunae. 6. Learned counsel for fhe petitioner would submif that Shri B.N.Agrawal, Advooate is sissociated with Shri Satyawan Agrawal, Advocate and, fherefore, the Family Court should have taken a practical approach and the affidavit filed by the associate Advocate should have been accepted inthe interestofjustice. 7. Per cpntra, learned cQunsel for the respondent would submit that readjng of the impugnecl order will itself dempnsfrate that Shri B.N.Agrawal, Advocatewas neverauthorized bythe Courtto appear on behalf of the petitioner and assuch adequate reasons were npt shown fbrsetting aside the exparte order. 8. On perusal of the reeord, this Court would find that the application fbr setting aside ^xpa/fe order was filed on the next day of hearing along with an affidavit QftheAdvocate associaled with the amicus curiae. In theimpugned order itself, the Family Court has observed that by the order passed under.8eetion .24 of the Act, the petitioner is not prejudiced and that he ean participate in the further ^ ^y ^a ^Sfe;^ proceedings. It appears that on the date when the ex parte order was passed, the matter was fixed for orders on the application under Section 24 of the Act and in this context the Family Court, while deciding the application under Order 9 Rule 7 of the Code, has observed that the order granting interim maintenance would not prejudicially affect the petitioner. The observation would impliedly suggest that the petitioner was not ordered ex parte on the main application under Section 9 of the Act. However, learned counsel for the petitioner makes a statement at the Bar that the petitioner has not been allowed to file written statement on subsequent dates of hearing. 9. From the observation made by the Family Court to the effect that the order under Section 24 of the Act would not prejudice the petitioner, it is born out that probably the Courtitself was under impression that the petitloner has not been ordered ex parte on merits. Even otherwise, this Court is of the view thatwhen the application was presented on the very next day of hearing and was supported with an affidavit of the Advocate associated with the am/cus curiae, there is no harm in giving opportunityto fhe petitioner to contest the application on merits. Ordinarily, Courts should make r':\ - ^ • . . ' '"^(•"endeavour to decide the matters on merits after giving adequate opportunity to the parties to the suit to project their respective cases. 10. In view of the above, the impugned order, insofar asit relates to the rejection of prayer of the petitioner for setting aside the ex 7 parte order on the mainapplicafion under Section @ ofthe Act, is set --.J ....iA-aa^ h &.,.:.^^ ^"-ssy jff aside. The petitioner is allowed to file his written statement within a period ofsixweeksfrom today. 11. Learned counsel for the petitioner submits that the application under Section 24 ofthe Act wasalso decided in absence ofthe petitionerand once it isfound thatthe ex parte ordetdesen/es to be set aside, the petitioner should also be granted opportunity to contest the application under Section 24 of the Act on merits. 12. In the facts and circumstances of the case, more particularly, * ' ; ' . - ^ ' " : ' • keeping in view that three minior children are residing with the respondent, it is directed that the petitioner may submit an application for modificatioh/recluGtion ofthe ampunt Qf maintenance, however, pending consideration 6f the said application to be filed by the petitioner, he shall continue to pay interim maintenance as directed bythe Court. 13. The writ petition stands disposed of. saf bjiujLvir^iUEBfWliJ^aietfEnECTK