MOHAMMAD FARID ANSARI Vs. SMT. RABIYA KHATOON

JUDGEMENT

(1.) The instant appeal is against the judgment and decree dtd. 5/11/2019 passed in Miss Civil Suit No. 02/18 by the Learned Family Camp Court, Katghora, District Korba wherein application filed under Order 9 Rule 13 of CPC was allowed.

(2.) The brief facts of the case are that:- " The appellant/ husband filed an application for restitution of conjugal rights against the respondent/ wife wherein the respondent initially appeared and thereafter she failed to appear, consequently ex parte order was passed on 8/5/2017 in Civil Suit No. 156A/ 2015. " Subsequently, respondent/ wife filed an application for setting aside the order dtd. 8/5/2017, on the ground that since she was staying at Bhopal since 2016 and when she came to know of the fact that ex parte judgment and decree has been passed, she immediately filed an application to set aside the ex parte judgment and decree dtd. 8/5/2017. " Learned Family court allowed the application under order 9 Rule 13 of CPC. Hence this appeal.

(3.) Learned counsel for the appellant would vehemently submit that the wife was making personal appearance throughout in the original case bearing Civil Suit No. 156A/ 2015 and all of a sudden she stopped appearing, therefore, the learned Family Court did not have any option except to proceed ex parte. Accordingly, the ex parte proceedings were drawn. He would further submit that thereafter when the application for setting aside the ex parte judgment and decree was filed the wife/ respondent appeared and admitted the fact that she came to know about execution proceeding, therefore, there was a deliberate non-appearance and no valid reasons were assigned by her for her absence. He would further submit that only casual submission and reasons were assigned which was beyond the records and against the existing facts and the learned family court failed to appreciate this fact and set aside the judgment and decree dtd. 8/5/2017.