MISC. APPEAL No.464 OF 1994 (Against the Judgment passed by the Principal Judge, Family Court, Patna, in Misc. Case No. 90 of 1991) ----------- TEJASHWARI LAL --------- Appellant Versus PANCHAM LAL ---------- Respondents ------------ For the Appellant : Mr. Indu Shekhar Prasad Sinha, Senior Advocate Mr. Madan Mohan, Advocate For Respondent : Mr. Laxmi Narayan Das, Advocate Mr. Ranjit Sharan, Advocate Mr. S. Dey, Advocate ----------- P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN Prasad & Ranjan: JJ Wife-appellant aggrieved by the order dated 24th of September, 1994 passed by the Principal Judge, Family Court, Patna, in Misc. Case No. 90 of 1991 refusing to set aside the ex-parte decree, has preferred this appeal before this Court. Husband-respondent No. 1 filed application on 9th April, 1990 for dissolution of marriage by a decree of divorce alleging cruelty. Wife appeared in the suit on 15th of May, 1990 and prayed for time to file written statement. The matrimonial suit came on transfer to the court of Additional District Judge- VII. She did not file the written statement and on 16th of June, 1990 she filed application for time for filing the written statement. The court acceded to her prayer and granted time to - 2 - file written statement by 3rd of July, 1990. However, she did not file the written statement, as directed, and again on 3rd of July, 1990 prayed for time to file the written statement. Said prayer was granted and she was allowed time to file written statement by 25th July, 1990. On the adjourned date instead of filing the written statement, wife filed petition under Section 24 of the Hindu Marriage Act claiming maintenance pendente lite and cost of litigation. Thereafter, on 13.8.1990 the matrimonial suit came on transfer to the court of Additional District Judge-XIV and on 16th August 1990, the wife filed time petition and the court directed her to file the written statement by 30th of August, 1990. In between 16.8.1990 to 9.11.1991 the matrimonial suit was adjourned on several dates. On these dates, attempts were made for reconciliation but ultimately it failed on 19.9.1990. By order dated 9.11.1990, the application filed by the wife for payment of cost of litigation of Rs. 3,000/- was allowed but her prayer for grant of maintenance pendente lite was rejected. Husband filed application seeking direction to the wife to collect the cost of litigation but having failed to collect the same he deposited the said amount by Challan on 23rd November, 1990. On 23rd November, 1990 wife did not appear and the case was adjourned to 30th of November, 1990. On 30th of November, 1990 wife again appeared and prayed for time to file written statement which prayer was declined. Thereafter, the case was fixed on 14.12.1990, 21.12.1990, 4.1.1991, 8.1.1991 and - 3 - 15.1.1991, and on these dates wife did not appear but filed time petitions. Thereafter, the next dates fixed in the case are 30th of January, 1991, 15th February, 1991 and 22nd February, 1991 and on all these dates she did not appear at all. On 5.3.1991 husband was examined in part and the case was adjourned to 6.3.1991. On 6.3.1991 and 7.3.1991 time petitions were filed on behalf of the wife but the husband was examined in part on 7.3.1991. Again on 8.3.1991, 11.3.1991, 12.3.1991, 13.3.1991, 14.3.1991, 15.3.1991, 16.3.1991, 21.3.1991, 22.3.1991, 23.3.1991 and 25.3.1991 defendant filed time petitions but on those dates husband and his witnesses were examined and discharged. On 1.4.1991 the wife filed the written statement alongwith a petition to accept the same. PW-6 who was examined in part on 25.3.1991 was examined and discharged on the said date. On the next date i.e. on 2.4.1991 wife filed application for recalling the order of ex-parte hearing. Thereafter the case was transferred to Additional District Judge-VIII and then to the court of Additional District Judve-IV. On 24.6.1991 wife filed application to accept her written statement and for adjournment of the case by one month, which prayer was rejected. On 2.7.1991 defendant filed application for recalling the order dated 24.6.1991 refusing to accept the written statement, ultimately said application was rejected by order dated 5.7.1991. On 6.7.1991 wife prayed for - 4 - adjournment of the case on the ground that she intends to assail the order dated 24.6.1991 and 5.7.1991 in revision. At her request the court adjourned the case till 25th of July, 1991. On 25.7.1991 wife prayed for time which was rejected and the matter was heard in part. Ultimately, after several adjournments, hearing was concluded and the case was fixed for judgment on 12.8.1991. On 12.8.1991 wife filed application informing the court that by order dated 7.8.1991 passed in Civil Revision No. 1310 of 1991, further, proceeding has been stayed. Accordingly, the court adjourned the case to 19.8.1991 awaiting the receipt of the High Court’s order. On 19.8.1991 no order staying further proceeding was produced but the court adjourned the case to 23rd of August, 1991. On 23.8.1991, husband produced the certified copy of the order showing dismissal of the Civil Revision application and on that date wife did not appear. Thereafter, the next date fixed in the case was 30th of August, 1991 and on that date the wife filed an application for time stating that she intends to move Supreme Court. However, said application was not pressed and the case was adjourned to 4.9.1991. On 4.9.1991, wife did not appear and the case was fixed for orders on 5.9.1991. Ultimately, by Judgment dated 5.9.1991, the decree dissolving the marriage was passed inter alia on the ground that wife treated the husband with cruelty. Wife then filed application for setting aside the - 5 - aforesaid decree under Order 9, Rule 13 of the Code of Civil Procedure. The Principal Judge, Family Court, by the impugned order, dismissed the aforesaid application. Wife is impugning this order in the present appeal. Mr. L.N. Das appearing on behalf of the wife-appellant submits that when the wife filed written statement and prayed for its acceptance, the court below ought to have allowed the said prayer and ought not to have proceeded with the matrimonial suit without the written statement. He submits that on this ground alone, the ex-parte judgment and decree deserve to be set aside. Mr. Indu Shekhar Prasad Sinha, Sr. Advocate, appearing on behalf of the husband-respondent, however, contends that in spite of several opportunities having been given to the wife to file the written statement, she did not avail the same and as such, the learned Judge did not err in rejecting the prayer for accepting the written statement filed belatedly and proceeding with the matrimonial suit without the written statement. Having appreciated the rival submissions, we do not find any substance in the submission of Mr. Das. Wife appeared in the suit on 15.5.1990 and prayed for time for filing the written statement. The court acceded to her prayer. Thereafter, she filed application for payment of cost of litigation and delayed filing of the written statement on that - 6 - ground. Although, the court directed for payment of cost of litigation and the amount was deposited by the husband but she did not receive the said amount. It is only on 1.4.1991, the wife filed written statement with a petition to accept the same when the husband and his five witnesses were already examined and discharged. In these circumstances, in our opinion, the learned Judge rightly refused to accept the written statement filed by the wife. We do not find any error in the same. Mr. Das, then contends that the wife having shown sufficient cause for setting aside the ex-parte judgment and decree, the court below erred in refusing to grant her prayer. Mr. Sinha, however, contends that the cause shown by the wife cannot be said to be sufficient so as to set aside the ex-parte decree. We do not find any force in the submission of Mr. Das. In our opinion the court had shown more indulgence to the wife, then it ought to have. The petition was for dissolution of the marriage and was required to be heard expeditiously. On wife’s prayer, case was adjourned on several dates for filing the written statement but she did not chose to file the same within the time granted and chose to file the written statement when the evidence on behalf of the husband was almost complete. In our opinion, the wife intended to delay the disposal of the matrimonial suit and succeeded in that for some time but she could not prolong the same indefinitely. We are of the opinion - 7 - that the cause shown by her is not sufficient to set aside the ex- parte decree. To put the record straight, Mr. Sinha, appearing on behalf of the husband had contended that the decree passed is not an ex-parte decree, the application for setting aside the same under Order 9 Rule 13 of the Code of Civil Procedure itself was not maintainable. As we have found that the cause shown by the wife for setting aside the ex-parte decree is not sufficient, we refrain from adjudicating this question. In the result we do not find any merit in the appeal and it is dismissed accordingly but without any order as to cost. Patna High Court Dated 23rd Sept.2008 NAFR/S.Ali (Chandramauli Kr. Prasad, J.) (Dr. Ravi Ranjan, J.)