COUHT OF CHHATTISGARH AT 3ILASPU] iT Siut. Kiran Gandhanv. IT Raiendra Gandliarwa u~ IT Postfoi-7 -1-201 Sd/- N.K. Agrawal Judge ^s"^.. ^- ^ .TTISG; .T ST <a FIRSTAPPEAL UNDER SECTION 28 OFTHE HINDU MARRL1GE ACT, 1955 sbSU imt. Kiran Gaiidhanva Rajendra Oandharwa S.B.s-Hon. Shri N.K. ARanval, J Shri M.K. Bhaduri, Advocate, for appeUant. Shri P.K.C. -Tiwari, Sr. Adv. wifh Shri Shashi Bhushan, Adv. for the JUDGMENT (7-1-2010) This is m'st appeal arising out of tlie judgment aaid decree dated 26-7-20C6 passed by IInd Additional District Judge, Rajnaiidgaon tn C.S. No. 37A/2006 whereby and whereuiider, learned tzial Court has passed decree tn favoiir of flie respondent husband for resutution of conjugal rights under Section 9 of the Mindu Marriage Act, 1955 (briefly the Acfj. Undisputed facts of the case are fhat the appellant is legally wedded wife of the respondent The marriage soleiai-dzed between tliem on 11-5-2003 at Dui'g. They ^. lived togetlier at village Korinbhata, Rajnandgaon for •sbi months aS.er marriage. As per fhe respondent's application un.der Section 9 of the Act, tlie appeUant left. mati'imonial home after 15 November, 200.3 wifhout uittmating the respondent and went to the house of Ker brother-in-law at Rajnandgaon. 4. o. There she s..<1. itto for 15-20 days mid.thereafter she wenl '^1 her patenial house at Durg, &om''-,w7tiere she sent notice dated 15-12-2003 to the respondent/. husband which was dully replied by him. Thereafter respondent's father approached the community president for resolution of the ;ommunitv person could not dispute, if any, but fl render any decision, hov.Tever they found the appeUant at fault. Thereafter fhe respondent ffled an apptieation for restitution of coryugal rights. That was resisted by the appeUant oii the groiind that she was fll-treated for the demand of aiotorcycle in lieu of dowry by fhe respondent who al.so ousted her from the matmnonial home, therefore '-ir^-l?? 'i. She has no option was left wifh the appellant but to leave the house and go to' fhe house of her brofher- niilher stated in the reply fhat the Lizard in fhe food so Uiat she may die aiid for that she reaiained ia hospital for two days. Base pleadings of fhe parties, fhe trial CoiHl framed issues. During trial, the appellaat remaiiied expai-te. The respondent. examined two witnesses i.e. htmsetf and one Koman Das. Leamed trial Court on appreciation of the evidence led by tlie respondent, docuinents filed aiid submission made, held that the appe'Usnt has witliout reasonable excuse wifhdrawn from fhe society of the respondent; the appeUaiit fedled to prove any demand of dowry; passed fhe decree of restitiition of conjugal rights. PIence tliis appeal. Shri M.K. Bhadm'i, learned coiinsel wonld submit that fhe imDuened -iudgi tbr ttie appellant iient and decreejs^ '%JyJ/ ^s^^y' en'oneous on fcvo counts, first, ori'g6-7-2006, when the ^ case was lixed for evidence, neifher'.flie appeUant nor her •I coi.rasel appeared in the case, nor appellant's counsel intimated to fhe appeUant for her appearance before tiie Court and, tfaerefore, the exparte proceediags agaiast the appeUant is bad, secondly, leanied trial Court has not discussed fhe inatter in detaii before passing fhe decree for restltution of conjugal rights. In support of his submission, reliance has been placed upon the judgment ta case of Ts Samchand Issardas Sadarangaal re'ported in AIR 1993 SC 1182. ^i-r*-t-t~> 6. Per contra, Shri Tiwari, leamed Sr. Counsel appearui| the respondent -A?ould contend that the appeUant was negKgent fhrough out tn conductrag her case; for the reason best known to her, she dld not challenge the decree by filiiig application i.mder Order 9 Riile 13 of C.P.C. for setting aside exparte decree; .flie trial Couit after considering every aspect of fhe matter pa.ssed the decree which deserves to be upheld. In support of his submission, he placed reliance upon fhe judgment in the case of Na^ar :,Pa!Ika__Niffam. G-walior -v- Motilal Munnalal reported in AIR 1977 MP 182, Smt. Maya De'wi and others -v- Mehria Grain Dajl MiUi Hissar. an< others reported in AIR 1988 Punjab and Haiyana would contend that fhe appeal cannot be converted into proceeding for setting aside expaile decree. 7. I have heard learned counsel for the panies, perused fhe ^ record of fhe case and the iiapii^aed judgment aiid decree. A bare perusal of fhe order sheet of fhe trial Court would reveal fhat the appeUant was negUgent tfarough out in prosecuting her case before fhe trial Gourt. On 9-2-2005, she was proceeded exparte. On 4-5-2005, expai-te proceeding was set aside and fhe case was again fixed for fraining issues. Again on 17-11-2005, absent and fhe case was fixed for respondent's evidence on 30-12-2 O^ 10 Of^^^ fTl^i'^^TT: S.^1"l£^ -t^At1'~r>'~S^t~'!^i/~1 OU~ 1^~^UOJ<J c^-^ctiii. S11C i. dilcllllCU. absent. On 13-2-2006. at the stage of mial argument, she £>• again moved application under Order 9 Rule 7 of C.P.C. for setting aside exparte order, which was not found bona&de and the saine was dismissed by the trial Court. Again vide order dated 1-4-2006, she has been permitted to participate m fhe proceeding and to submit her argtiment. Agaln on 21-4-2006, her application uiider tection 151 of C.P.C. was aUowed by the trial Coui't and she has been permitted to cross-examine the applicant's witaesses and the case was fixed on 26-6-2006. On 26-6- 2006, fhe case was adjoumed on appellant's request. It is pertinent to mention her Uiat on 26-6-2006, the appellant herselfwas present ia fhe Court and fhe next date i.e. 26- 7-2006 was well within her personal knowledge. She nt on 26-7-2< and fhereafter her opportunity to cross-examine fhe applicants witnesses was closed and tfae judgment has beea passed. 9. The Supreme Coiirt in case of Bhanu Kumar Jain -v- ArchaEa Kumar and another reporfM in 2005 AIR SCW has observed in para 24 of its.judgment that:- An appeal agatnst an exparte decree in terms of Section 96(2] ofthe Code could be ffled on fhe foUowing grounds:- (i) The materials on record brou^it on record in the exparte proceedings in fhe suit by the plaintiff would not entail a decree in his favour aad (ii) The suit could not have been posted for exparte hearuig. 10. ir^isst-sy- In fhe facts of the present case, it would be crystal fhat leamed trial Court has rightly proceeded exparte against fhe appellant. More over the appellaat has not preferred any application under Order 9 Rule 13 of C.P.C. for settuig aside exparte judgment and decree by shovi'inj sufficient cause for her non-appearance on the date when tfae trial Court. proceeded exparte against her. Scope of challenge to fhe exparte proceedings ia an appeal under Section 96(2) of C.P.C. is limited to fhe extent fhat the siiit corJd not have been posted for exparte hearing which is not fhe position here. The judgment cited by fhe appellant in fhe facts and circiimstances of the present case is of no help to him, she could not contend that fhere is sufficient cause for her non-appearance on the date when tfae case was proceeded exparte against her. It is also not a case where the appeUant's counsel withdnsw from fhe case or pleaded no instruction witfaout. intunating the appeUant, on the contraiy fhe date i.e. 26- 7-2006 as alleged by the appeUaat was well witliin the knowledge of flie appellant. The judgment and decree has ^' '^S^^^Q, '^'^,. f & ^ X 'a s '-<Y 'y^.^/ 11 been passed by fhe trial Coiirt after aspect of fhe inatter and no fault cari s» lait. In view of the foregoiag, I do not faid any infiTmity/ Ulegality in fhe judgment aad decree passed by the trial Court. The same deserves to be and is hereby upheld. 12. In fhe result, fhe appeal is dismissed. 13. No order as to costs. Sd/- '' N.K. Agrawai Judge