E.R.V. PRASAD Vs. GAYATHRI LAKSHMI

JUDGEMENT

(1.) THE appellant has filed this appeal being aggrieved by the dismissal of his petition i.e., Misc. No. 129/2011 filed under Order 9 Rule 9 of CPC to restore Misc. No. 53/2010 which has been dismissed on 2.9.2011, passed by the Principal Judge, Family Court, Bangalore on 4.6.2012. By the consent of the learned counsel for the parties, it is taken up for disposal.

(2.) IN Misc. No. 129/2011, the admitted facts are that the appellant filed M.C. No. 2292/2007 under Section 13(1)(ia) of the Hindu Marriage Act against his wife for a decree of divorce on the ground of cruelty. The said petition came to be dismissed for non -payment of interim maintenance. To restore the said petition, Misc. No. 53/2010 came to be filed under Order 9 Rule 9 of CPC. The said petition came to be dismissed for not taking steps. To restore these petitions Misc. No. 129/2011 came to be filed. The learned Judge has dismissed the petition on technicalities on the ground that the provisions quoted in the petition is bad in law.

(3.) MERELY on the ground of not mentioning the proper provisions of law, the petition could not have been dismissed by the Trial Court, the Trial Court should have made an observation that whether the petition filed by the appellant discloses the cause of action for setting aside the dismissal of earlier petition. As a matter of fact, if a petition filed under Order 9 Rule 9 of CPC is dismissed for non prosecution, to restore the said petition only petition under Section 151 of CPC invoking the inherent provisions of the Court could have been filed. Even, if the Advocate representing the appellant has quoted a wrong provision of law, it is for the Trial Court to look into the pith and substances of the matter and grant relief to the parties.