1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.177 OF 2008 ALONGWITH CIVIL APPLICATION NO.215 OF 2008 Ashok Ramnayak Yadav .... Appellant Vs. Mrs. Laxmi Ashok Yadav .... Respondent Mr. K.K. Malpathak, Advocate for Appellant. Mr. Anilsingh i/by Mr. D.R. Shah for Respondent. Coram : SMT. R.P. SONDURBALDOTA,J Date : 11th September, 2008 P.C. 1. This Appeal from Order is preferred against the order dated 4th December,2007 passed by learned Additional Sessions Judge, Thane setting aside the exparte decree dated 2nd August,2006 passed by the Civil Judge, Senior Division, Thane in Marriage Petition No.203 of 2005 and remanding the matter for fresh hearing. Mr. Malpathak, learned counsel for the appellant fairly concedes that the petition should be decided on merit after hearing both the sides instead of an exparte decision. Therefore, the appellant does not have any objection as regards remand of the petition. He, however, apprehends that observations made in the Appellate Court's order that the appellant 2 has failed to make out a case of desertion may come in his way, in as much as the same may influence the learned trial Judge. It has been observed by the lower Appellate Court that the appellant states in the plaint that the respondent left the matrimonial home on 2nd April,2004 and therefore the statutory period of two years for filing the petition on the ground of desertion is not complete. The petition has been filed on 29th April, 2005. Perusal of the petition shows that though it has been stated in paragraph 4 of the petition that the respondent left the matrimonial home on 2nd April,2004, at paragraph 9 of the same petition, it is alleged that there has been no cohabitation between the parties since 26th May, 2001. Therefore, according to the appellant, the respondent deserted him in May, 2001. It is patent that lower Appellate Court has not considered the allegations at paragraph 9 of the petition. Therefore, it is required to be clarified that on remand of the matter, the learned trial Judge shall consider the respective cases after allowing the parties to lead the evidence thereon and decide the disputes uninfluenced by the observations made in the impugned order. 2. Appeal from Order is disposed of. 3 3. In view of the disposal of the Appeal from Order, the Civil Application does not survive. The same is accordingly disposed off (SMT. R.P.SONDURBALDOTA,J)