MAMTA SHARMA Vs. RAJENDRA KUMAR SHARMA

JUDGEMENT

(1.) This is an application for recall of this Court's order dated 20.5.2015whereby the appeal was dismissed for want of prosecution passing the following order;

(2.) The application has been filed through Sanjay Singh, Advocate, Sri Pawan Kumar Shukla and Sri J.S. Kaurav, Advocate. Sri K.S. Tomar, learned Senior Advocate has argued the matter. He contended that the earlier Counsel Sri Neeraj Tripathi has no business to withdraw himself without intimating the appellant and this Court also did not issue any notice to the appellant to engage another Counsel, therefore, the order dismissing appeal need be recalled. He placed reliance on the decision of Apex Court in Malkiat Singh Vs. Joginder Singh, 1998 2 SCC 206 and a Single Judge decision of Jaipur Bench of Rajasthan High Court in Kuldip Kumar Lal Vs. Suman Rani, 2012 AIR(Raj) 175 .

(3.) The facts , in brief are that the appeal under Section 19 of the Family Court Act, 1984 has been filed against the judgment and decree dated 8.2.2001 passed by Sri R.D. Pandey, Judge Family Court, Agra rejecting appellant's application under Order 9 Rule 13 C.P. C. passed in Misc. Case No. 12 of 1997 in Matrimonial Suit No. 68 of 1993. The plaintiff-respondent filed suit for divorce which was decreed ex parte by the Court below on 2.11.1996. The defendant-appellant's application under Order 9 Rule 13 C.PC has been rejected by Court below recording a finding that despite of service of notice and information, neither the defendant-appellant nor her Counsel appeared and therefore, there was no justification to recall ex parte decree, particularly when in the meantime, the plaintiff-respondent has also re-married to one Smt. Madhuri on 2.3.1997.