SUMITRA BAI Vs. V G SHYAMSUNDAR

JUDGEMENT

(1.) THIS appeal is filed by Sumitra Bai, wife of the respondent herein aggrieved order made by the learned District Judge, Chingleput in I.A.No.56 of 1989 refusing aside the ex parte decree made in C.M.A.No.22 of 1988 on his file.

(2.) THE respondent filed O.P.No.53 of 1986 for nullity of marriage under Sec.12 of the Marriage Act. That petition was allowed by the learned Subordinate Judge, Kancheepuram. THE wife filed an appeal in C.M.A.No.22 of 1988 before the learned District Chengalpattu under Sec.28 of the Hindu Marriage Act. On 30.1.1989 the said appeal dismissed for default. THEn on the same date the wife filed I.A.No.56 of 1989 under Rule 19, C.P.C. for restoring the appeal after setting aside the ex parte decree made C.M.A.No.22 of 1988. In support of that application, it is represented by the learned for the appellant that Mr.Nagu Sah, an advocate practising at Madras who appeared appellant in the lower appellate court and the appellant before the lower appellate court separate, affidavits stating the reasons for their absence. This application was resisted respondent on the ground that the application under O.41, Rule 19, C.P.C. maintainable and that there are no just and sufficient reasons for setting aside the decree also. Learned District Judge, framed two points, namely, (1) whether there is just sufficient cause for the absence of the wife before him and (2) whether the application O.41 Rule 19, C.P.C. is maintainable. On both the points, learned District Judge answered against the wife and dismissed the I.A. Aggrieved with this order, the present appeal by the wife under O.43, Rule 1 (t), C.P.C.

(3.) WITH regard to the merits of the case, learned District Judge dismissed the application considering the previous conduct of the parties. The previous conduct of parties or that the advocate need not be looked into at all while disposing of an application filed under Rule 13, C.P.C. O. 9. Rule 13, C.P.C. reads as follows: ".13. Setting aside decree ex parte against defendant: In any case in which a decree passed ex parte against a defendant, he may apply to the court by which the decree passed for an order to set it aside and if he satisfies the court that the summons was duly served, or that he was prevented by any sufficient cause from appearing when the was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and appoint a day for proceeding with the suit......" O.9, Rule 13, C.P.C. contemplates that if a party is prevented by any sufficient cause appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs. That section does contemplate the conduct of the party or of the advocate previously appeared for him the party were called upon to answer as to how he was prevented from appearing before lower court by giving sufficient cause. If the appellant has satisfied that he was prevented from appearing before the court by giving sufficient cause, the court has to restore application upon such terms and costs only and nothing else. In this case, when the appeal was dismissed for default, on the same date, an application was filed to set aside the parte decree immediately with the affidavit of the advocate appearing for the appellant the lower "appellate court. Learned District Judge has referred to the previous conduct of parties and ultimately held that there is no sufficient cause for his absence on the particular date. Especially in an appeal, there is no necessity for the appellant to be present and appeal will be argued only by an advocate. Under such circumstances, learned District Judge need not have put it as a bar for rejecting the application, as if the appellant's presence necessary on the same date when he dismissed the appeal for default. Learned counsel the appellant has shown sufficient cause for the absence of the appellant on the date when the appeal was dismissed for default. I am satisfied with reasons given by the appellant for his absence on the date when the appeal was posted hearing and I hold that there is just and sufficient cause-for his absence and that the appeal deserves to be restored to file.