AVINASH KUMAR SINGH Vs. NAINA SINGH

JUDGEMENT

(1.) This appeal is directed against order dated 24th October 2019 passed by the Family Court, Ambikapur, District- Sarguja in Miscellaneous Case No. 21 of 2018, by which respondent's application for setting aside ex- parte judgment and decree has been allowed and ex-parte judgment and decree dated 21st March 2018, passed in favour of the appellant, has been set aside.

(2.) Appellant- husband moved an application for grant of decree of divorce before the Family Court. Summons were issued to respondent-wife. She was served and after service, she appeared and applied for grant of permission to engage Amicus Curiae. Prayer was allowed and respondent was allowed to be represented through Amicus Curiae vide order dated 23.6.2017. Respondent filed objection with regard to territorial jurisdiction. When the case was listed for hearing on that application on 6.1.2018, no representation was made, therefore, the Family Court proceeded ex- parte. On that day itself, an application for setting aside ex- parte order was filed by the respondent through the Amicus Curiae. The application was directed to be listed on 31.1.2018. On that day, no representation was made by the respondent through her counsel nor respondent appeared. The application was rejected and the Family Court proceeded. After recording evidence, ex-parte judgment and decree was passed on 21.3.2018.

(3.) Learned counsel for the appellant- husband submits that the learned Court below committed gross illegality in allowing respondent's application for setting aside ex-parte judgment and decree even though no sufficient cause could be established by the respondent. He would submit that even on respondent's own showing, she was served with the summons and was being represented through counsel. After having moved application raising objection to the maintainability of the proceedings, neither respondent appeared nor the counsel engaged by her regularly appeared. The respondent and her counsel both had full notice and knowledge of order dated 6.1.2018 because on that very day, application for setting aside ex-parte order was moved by respondent counsel. When this application was listed on 31.1.2018, again, no representation was made despite notice and knowledge of the date of hearing. The application was rejected on 31.1.2018 and against the same, no proceedings were taken. Even when, later on, evidence was recorded and the case was listed for final arguments, despite notice and knowledge, no care was taken to appear in the Court and contest the case and in this manner, the respondent and her counsel remained negligent. It is also submitted that the learned Family Court passed exparte judgment and decree dated 21.3.2018. As the respondent was duly served and represented through counsel, knowledge is to be attributed to both of them and, therefore, application for setting aside ex-parte judgment and decree was required to be filed within 30 days as per the law of limitation. The application for grant of divorce was filed by the appellant-husband on 11.5.2018. The appellant contacted second marriage on 26.8.2018 which was duly registered on 15.10.2018. Thus, without there being any sufficient cause, learned Court below mechanically allowed the application for setting aside ex-parte judgment and decree resulting in a very complicated state of affairs when the appellant has already contacted second marriage. He would submit that as the second marriage was performed after expiry of period of limitation of filing appeal and application for setting aside ex-parte judgment and decree, it was lawful and thus, only on this ground, the application of the respondent was liable to be rejected. Learned counsel for the appellant argued that as the appellant had contacted second marriage, application for setting aside ex-parte judgment and decree, without impleading second wife, was not maintainable. In support of his submissions, learned counsel for the appellant has relied upon Anurag Mittal Vs. Shaily Mishra Mittal, 2018 9 SCC 691 and Karuna Kansal Vs. Hemant Kansal & Anr, 2019 6 SCC 581 and order dated 17.3.2016 passed by the High Court of judicature at Madras in CRP (NPD) No.3237 of 2015 (A. Raja Sundari Vs. Suresh Kumar).