FAO No. 4188 of 2007(O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on February 05,2010. Manga Ram -- Appellant vs. Smt.Reena Devi --Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. Randeep Singh,Advocate,for the appellant Ms.Divya Sharma,Advocate,for the respondent. Rakesh Kumar Jain, J: This appeal is directed against the order of learned District Judge, Karnal, dated 11.8.2007, vide which an application filed under Order 9 Rule 13 of Code of Civil Procedure, 1908 (for short, 'CPC), for setting aside an ex-parte decree of divorce dated 12.1.2006 has been dismissed. Brief facts of the case are that Reena Devi filed a petition under Section 13 of the Hindu Marriage Act,1955 for dissolution of her marriage with her husband Manga Ram (appellant) on the ground of cruelty. During the pendency of the main divorce petition, application filed by the respondent/wife for maintenance pendente-lite and litigation expenses was allowed on 28.7. 2005. Part payment of maintenance was paid and for the payment of balance amount, the case was adjourned to 26.11.2005. None had put in appearance on the said date, therefore, the FAO No. 4188 of 2007(O&M) 2 appellant was proceeded against ex-parte and the case was adjourned to 17.12.2005 for ex-parte evidence of the wife, which was recorded on 07.1.2006 and on the basis thereof, an ex-parte decree was passed on 12.1.2006. The appellant filed an application for setting aside ex-parte decree on 07.3.2007 alleging that his sister was married to the brother of his wife Reena Devi and a criminal complaint under Sections 406 and 498- A IPC was pending in the Court at Gohana. Respondent/wife had filed a petition under Section 13 of the Act as a counter blast to that criminal complaint, though a petition under Section 9 of the Act for restitution of Conjugal Rights was also filed by the appellant in the Court of learned Addl.District Judge, Sonepat. It was averred that the said petition under Section 9 of the Act, was withdrawn by the appellant on the assurance given by the panchayat that they would certainly effect a compromise between the parties in the divorce petition. It is further averred that panchayat was convened on 20.11.2005 at Khanpur, wherein it was decided that the respondent/wife would withdraw her petition for divorce filed under Section 13 of the Act and resume the matrimonial home, therefore, the appellant was not required to appear in the divorce petition. It is further averred that in a bonafide belief and good faith, on the oral commitment of the respondent/ wife, he did not appear in the Court when he was proceeded against ex-parte. But when he came to know of the decree dated 12.1.2006, he applied for a certified copy of the judgment and decree and handed over the same to his counsel who fell sick. Therefore, the application could be filed only on 07.3.2006. The said application was contested on the ground of being FAO No. 4188 of 2007(O&M) 3 barred by time. Assertion of the appellant about the panchayat having been convened on 20.11.2005 and that the respondent/wife had consented to withdraw the petition was denied. On the pleadings of the parties, following issues were framed:- 1. Whether there are sufficient grounds for setting aside the the exparte judgment and decree dated 12.1.2006 passed in favour of the respondent-wife ? OPA 2. Whether the application is within limitation ? OPA 3. Relief: In support of their respective contentions,both the parties led oral as well as documentary evidence. The learned Court below had observed that as per record, the appellant was to appear on 08.11.2005 for making payment of the balance amount of maintenance pendente-lite, but he did not appear. Consequently, the case was adjourned to 26.11.2005 on the request of his counsel appearing on his behalf. On 26.11.2005, neither the appellant nor his Advocate put in appearance. Therefore, he was proceeded against ex-parte. It was also found that the application against ex-parte decree of divorce dated 12.1.2006 was time barred. The learned Court below also observed that none of the witnesses appearing on behalf of the applicant/appellant could show that there was any writing executed between the parties at the time of alleged settlement on 20.11.2005. Therefore, oral assertion of the appellant which was denied by the other side orally supported by their witnesses, was not accepted by the learned Court below and as such, the application was dismissed on the ground that after the respondent/wife got remarried , the FAO No. 4188 of 2007(O&M) 4 present application was filed for setting aside the ex-parte decree of divorce only in order to harass her. Aggrieved against the said order dated 11.8.2007, the appellant has preferred the present appeal in which learned counsel for the appellant has reiterated the grounds taken before the Court below. It was alleged that petition filed by the appellant under Section 9 of the Act, was withdrawn. It was also alleged that on 20.11.2005, a panchayat was convened in which it was decided that the respondent/wife shall withdraw the divorce petition, therefore, the appellant did not choose to appear on 26.11.2005. It was, thus, alleged that there was no deliberate attempt on the part of the appellant for not appearing in the Court and had remained absent due to the aforesaid reason which was claimed to be justified. On the contrary, learned counsel for the respondent has argued that after decree of divorce, the respondent/wife has got remarried and has a son from the second marriage. The appellant has failed to produce on record any assurance given by the panchayat because of which the petition under Section 9 of the Act was withdrawn on 03.8.2005. Further, it is submitted that there is no explanation given for filing application under Order 9 Rule 13 of C.P.C. belatedly. The appellant has also failed to produce on record any evidence much less any documentary evidence to prove that the Advocate to whom he had entrusted his case had fallen sick, as a result of which he could not file application within time. I have heard learned counsel for the parties and have perused the record with their assistance. It is not disputed that after the decree of divorce, the respondent has got remarried and has a child from the second marriage. The appellant FAO No. 4188 of 2007(O&M) 5 has miserably failed to prove on record any panchayat having been convened, pursuant to which an assurance was given regarding reconciliation between the parties, as a result of which he had withdrawn the petition under Section 9 of the Act on 03.8.2005. The appellant has also failed to prove on record that there was any writing executed between the parties duly attested by the members of the panchayat about the withdrawal of the petition under Section 13 of the Act by the respondent. Learned counsel for the appellant has also failed to prove on record as to why did he not appear on 26.11.2005 when his case was listed for evidence before the trial Court or even his Advocate chose to remain absent from the Court. Had there been a compromise between the parties, the appellant's Advocate should have informed the Court about the same so that an appropriate order could have been passed at that time. From the facts and circumstances of the case, it is apparent that the appellant remained absent from the Court when he had to make payment of balance amount of maintenance pendente-lite but in order to harass the present respondent/wife after her remarriage, filed the application under Order 9 Rule 13 of C.P.C. for getting the judgment and decree of divorce set aside. Taking into consideration the totality of facts and circumstances, I do not find any merit in this appeal and the same is hereby dismissed, though without any order as to costs. February 05,2010 (Rakesh Kumar Jain) RR Judge