HON'BLE SHRI DHIRENDRA MISHRA. SE HQN'BLE SHRI R.N. CHANDRAKAR, 33 First Appeal fMyNo. 32 of 2009 Arvlnd Sharma, son of Shri Rajendra Prasad Sharma,' aged 35 years, resldent of near Gayatrl Mandir, Telibandha, Raipur (CG) Smt. Sulakshana Sharma, aged about 27 years, wife of Shri Arvind Sharma, daughter of Shri Shyam Kumar Pandey, resident of Kushalpur, in front of Government Servant Colony, Raipur also having another address - Idgahbhata, Gall No.20, Behind Vivekananda Ashram, Raipur (CG) Present: Shrl Kshitiz Sharma, counsel forthe appellant. Shri S.S. Rajput, counsel for the respondent. ORAL JUDGMENT (25th March, 2010) Per Dh'irendra Mishra. 3 -»» ( The appeilant and the respondent herein were marrled on 27.6.2003. The appellant filed a divorce petition. The respondent was proceeded exparte on 18.10.2005 onaccount of her non-appearance despite servlce of notlce and an exparte decree of divorce was passed on 19.10.2005 on the iround that the respondent treated her husband and other family members with cruelty. The respondent flled an application under Order 9 Ruie 13 read with Section 151 of CPCon 2.5.2006, which was reglstered as M3C N6.2/06, for setting asideexparte decree of divorce dated 19.10.2005. The appellant flled reply to the aforesaid application wlth affidavit on 5.7.2006. After fillng reply, the appeilant dld_not appear In the proceedings on 6.2.2007 and thereafter, on , 26.2.2007 and thus, hewas proceededexparte. -.'t -(iSi[.'~;k 2 9- ^' s'f x s^ 02. Learned trial Court relylng upon the exparte evidence of the applicant/respondent, her witness Nand Tiwarl and considering the report of the handwrlting expert, held that service of summons oh the respondent/wife in the Qriglnal dlvorce proceedings was not proper and accordtngly, after settlng aslde the decree of dlvorce, the divorce petltion was restored to jts original number vide order dated llthApril, 2007 (AnnexureA/5). 03. The appellant moved an application under Order 9 Rule 13 read wlth Section 151 of CPC on 22.4.2008 and prayed for setting aslde theexparte order dated 11.4.2007 passed in M3C No,2/06 with an application for condonation of delay in fiiing the appllcation. The above application was registered as M3C No.4/08 In the Court of First Addltional Principal Judge, Famiiy Court, Raipur. Learned Famtly Court, after considering the entlre arguments advanced by the appeilant, dismlssed the appiication with a finding that on the basis of material availabieon record, there is no ground for settlng aside the exparte order dated 11.4.2007 passed In MJC No.2/06. The instant appeal is directed against the aforesaid order. 04. Shri KshitlzSharma, learned counsel for the appellant, submits that the appellant had shown sufficlent cause for his non-appearance before the Famlly Court as practical examinations wers going on in hts school. He had engaged a counsel to appear on his behalf, however, the advocate did not appear before the Family Court and ultimately, the appellant appeared hefore the Family Cpurt on 14.1.2008 after publicatiQn of summons for his appearance in the month of December, 2007 and then he learnt that the exparte decree in his favour was set aslde on 11.4.2007 and only thereafter, he moved an applicatlon under Order 9 Rule 13 for setting aside the above order. The appellant was not afforded an opportunity to lead evldence-in the proceedings, which would be evident from the order sheets of the Family Court. Setting aside exparte decree of divorce would have civll r 3 fz? 3t~f consequence as the decree wasset aslde after a considerable time and in the meanwhile, the appellant got married. The Family Court adopted a very narrow and technical approach In dealing with the matter. After holding the application withln the stipulated period, the Family Courtought to haveset aside the exparte order by imposing compensatory cost upon the appellant ifthe Family Court found hlm to be negllgent. . Reliance is placedon thejudgments in the matters of G.P. Shrivastawa Vs. R.K. Raizada and others1 and M.K. On the other hand, Shrl S.S. Rajput, learned counsel for the respondent, submits that the exparte decree of divorce passed in favour of the appellant was on the basis of defectlve service of'summons on the respondent. The summons of the petition for divorce was never served upon the respondent and forged signature of the respondent was made on the summonsand she was wrongly proceeded exparte. On the date when summons was allegedly served; ss per endorsement in the summons, she had gone to Mahasamund in connection wlth marriage of her relations between 10 July and 14ty July, 2005. The respondent got her admitted signature and signature on the summons ixamined through handwriting expert and the handwriting expert vide her report of Annexu.re R/5 opined that both the signatures are of different authorship. Copy of thereport of the handwriting expert was supplled to the appellant on 27.1.2007 and thereafter, he did not appear in the proceedings on. 6.2.2007 and 26.2.2007 and thus, he stopped ippearing in the Family Court. The appeiiant appeared in the divorce proceedings only after publicatlon of notice for his appearance. It is further argued that the appeliant contracted second marriage in Arya Samaj Mandir, Ralpur In November, 2006 by clalming himself So be unmarried, which could be evident '•\ *-(20QO)3,SCC 54 -zr20015&SCC 176 'K^'"?"-"??^^ -f- ~-J '€', ^i. ^' --.'t1 from the affidavit of the appellant wherein^he has stated that he was unmarried, and suppressing the fact that he had obtalned exparte decree of divorce, though he was aware that the proceedings for setting aside theexparte decree of divorcewere pending as he had caused his appearance and filed hls reply in the aforesaid proceedings on 5.7.2006. 06. Wehave heard learned counselfortheparties. 07. Learned FamilyCourt has rejected the appllcation Under Order 9 Rule 13 read with Sectlon 151 ofCPCofthe appetlant with an observation thatthe aforesaid appllcation was filed -more than one yearafter passing of theorder setting aslde the decree of divorce. The appellant was non-applicant in M3C No.2/06 and the provisions of Order 9 Rule 7 of CPC were applicable. The, appellant could participate in the further proceedingsln theabove matter even without getting the exparte order set aslde, However, he did not partlcipate in the proceedlngs after 6.2.2007 tlll passlng of the final order dated 11.4.2007 for a period of more thanone year and thus, he was not diligent In prosecuting the caseand failed to establlsh good cause much less sufTicient cause for setting aside the exparte order dated 11.4.2007 passed in MJC ^ No.2/06. 08. In the matter of G.P. Shrivastava1, the matter pertained to eviction of the appellant. The appellant had approachedthe Court for setting aside the exparte decree within the stipulated period. In these circumstances, it was held that if theappellantwas found to be negligent, the other side could have been compensated by costs and exparte decree set asidein terms and conditions as were' deemed proper by the trial Court. -1:" • • . . ' - 09. In M.K. PrasacF, the suitWasfiled u-nder Order 33 R.ule 1 of CPC In forma pauperis praying for issuance of direction to the defendants to delivervacant peaceful possessionofthesuit iands by removing the construction, If any. An exparte I ^ : \~. .^^s •\ f: v Y ^/ decree was passed on account of non-appearance of the defendant. He iearnt about passing of the decree only when he received the notlce of execution and applied for setting asidethe expartedecree with an appllcation forcondonatlon of delay. In these facts, the Supreme Court considering the extent of the propert:y involved and the stake of the parties, held that inconvenience caused to the respondent on account of the appellant belng absent from the Court can be compensated by awarding appropriate and exemptary costs. 10. However, in the instant case, the appellant hlmself has procured an exparte decree of divorce against his wlfe. The respondefit filed an application for setting aslde that decree on account of defective servlceand she also filed the opinion of the handwriting expert to show that the endorsement in the summons does not bear her signature. The appellant chose to remain absent in the aforesald proceedings and ultimately, the Family Court on the basis of material avallable on record, held that the service effected In the orlginai proceedings upon the respondent/wife was not proper, and set aside the exparte decree of divorce. 11. Thus, in view of the fact that by setting aside the exparte decree of divorce, the appellant as well as the respondent shall have an opportunlty to leadevidence before the Family (cu»^ in the divorce pefition filed by the appellant, which Is stlll pending, and the same wouid be decided on merits, we are of the oplnlon that the learned Famlly Court has not committed any lllegallty or Infirmity In dismissing the application of the appellant under Order 9 Ru!e 13 read w.ith Section 151 of CPC in M3C No.4,/08. We find no substance !n thls appeal, the same deserves to be_dism1ssed and is, accordingly, dlsmissed. Sd/- DhkendraMishra Judge Sd/- R.N. Chandrakar