IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL F.A. No. 113/2009 Smt. Neela Garg … Appellant. Versus Nitin Kumar Garg … Respondent. Mr. Deepak Sharma, learned counsel for the appellant. Mr. M.K.Goyal, learned counsel for the respondent. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.(oral)] By way of this First Appeal, the appellant Smt. Neela Garg, has challenged the judgment and order dated 19-01-2009, by which the petition U/S 9 of the Hindu Marriage Act has been decreed exparte in favour of Nitin Kumar Garg, husband of the appellant, as well as the order dated 28-05- 2009, by which the application of the appellant, under Order 9 Rule, 13 C.P.C. was dismissed. The facts of the case are that a suit for restitution of conjugal rights was filed by Nitin Kumar Garg, husband of the appellant, before Judge, Family Court, Haridwar and in that case the notices were issued to the appellant Smt. Neela Garg. The appellant could not appear before the 2 court in spite of the issuance of the notice. Thereafter the court sent the notice through registered post, which was not received back. Therefore, the court presumed the service of the notice and decided the matter exparte in favour of the husband Nitin Kumar Garg, thereby decreeing the suit exparte under section 9 of the Hindu Marriage Act. The appellant thereafter moved an application under Order 9, Rule 13 C.P.C. for recalling the exparte decree, but the same was also dismissed by the Judge, Family Court, Haridwar vide order dated 28-05-2009. Feeling aggrieved by the aforesaid both the judgment and orders, the appellant has preferred the First Appeal before this Court, which has been placed before us for disposal. Heard Sri Deepak Sharma, learned counsel for the appellant and Sri M.K. Goyal, learned counsel for the respondent and perused the record. The record reveals that the Judge, Family Court, Haridwar, presumed the service of the notice on the ground that the notice was served upon the wife Smt. Neela Garg, i.e. the appellant, and on that ground decided the matter exparte in favour of the husband. In the subsequent proceeding under 3 Order 9, Rule 13 C.P.C., the Judge, Family Court, has observed that in an another proceeding the wife was informed with regard to the proceeding of the case under Section 9 of the Hindu Marriage Act, but in spite of the information, she did not appear before the court in the proceeding under Section 9 of the Hindu Marriage Act. We are of the view that this finding is not based on any material evidence. It is not clear as to whether the appellant had positive information with regard to the pendency of the case U/S 9 of Hindu Marriage Act and it can not be said that the wife had an information with regard to the pendency of the case. It appears to us that the learned Judge, Family Court was quite harsh in dismissing the application U/O 9, Rule 13 C.P.C. By rejecting this application the learned Judge, Family Court has put the valuable right of the wife to lurch and she has unnecessarily been deprived by filing her objection before the Judge, Family Court. It was essential on the part of the Judge, Family Court to hear the plea of the wife and then to decide the matter on merit. Thus, we are of the view that both judgment and orders, passed by the Judge, Family Court Haridwar dated 28-05-2009, thereby dismissing the application of the appellant U/O 9, 4 Rule 13 C.P.C., as well as dated 19-01-2009, thereby decreeing the suit U/S 9 of the Hindu Marriage Act exparte, in favour of the husband- respondent, are liable to be set aside. The appeal deserves to be allowed. Accordingly, the appeal is allowed. The exparte judgment dated 19-01-2009, passed in Case No.265/2008 and the order dated 28-05-2009, passed in Misc. Case No. 11/2009, are set aside. However, we direct that both the parties shall appear before the learned Judge, Family Court, Haridwar, on 15-03-2010. The learned Judge, Family Court shall take all possible measures to decide the matter expeditiously and shall not grant any adjournment to either side on unreasonable ground. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 17-02-2010 ISB