SHILENDRA PRASAD DUBEY Vs. PRIYA DUBEY ALIAS SNEHA

JUDGEMENT

(1.) This Miscellaneous Appeal has been preferred by the Applicant-husband under Order 43 Rule 1 (c) of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the order dated 09.04.2018 passed in MJC No.13/2017, whereby the learned Court below has refused to restore the petition filed under Section 13 of the Hindu Marriage Act, 1955 (henceforth, the Act of 1955).

(2.) Learned counsel appearing for the Appellant submits that the Court below has committed an illegality in holding that the Appellant has failed to establish the sufficient cause for his non-appearance on 23.02.2017 and erred further in rejecting the application filed under Order 9 Rule 9 of CPC by holding it to be barred by time. It is contended that since the Appellant was assured by his counsel that his presence would be needed only when the written statement will be filed by the Respondent-wife and when the matter will be fixed for the evidence. It is contended further that since he was not informed as such by his counsel, therefore, the reasons assigned in the application for restoration of the claim ought not to have been disbelieved by the Court below. It is contended further that since the application for restoration of the claim was made from the date of knowledge of its dismissal, therefore, it ought not to have been rejected on the point of limitation. In support, she placed her reliance on a decision rendered in the matter of Raj Kishore Pandey vs. State of Uttar Pradesh and others , 2009 2 SCC 692 and Bhagwan Swaroop and others vs. Mool Chand and others , 1983 2 SCC 132 respectively.

(3.) On the other hand, learned counsel appearing for the Respondent, while placing his reliance upon a decision rendered in the matter of Ragho Singh vs. Mohan Singh and others , 2001 9 SCC 717, has submitted that since the application for condonation of delay in filing the said restoration application was not accompanied, therefore, the Court below has not committed any illegality in rejecting the same.