RAGNI SAXENA Vs. MUKUND KRISHNA PYARE

JUDGEMENT

(1.) THIS appeal arises out of a matrimonial lis and is by the plaintiff-wife. She has challenged the order passed on 17-11-1988 decreeing her suit on the ground that Court below had no jurisdiction to proceed with the trial of the suit after she had filed an application in person in court on 23-9-1988 praying that she be allowed to withdraw the suit and the suit be dismissed on withdrawal.

(2.) FROM the order-sheet what I find is that on 23-9-1988 the Presiding Officer of the Court was on leave and as such date was given to the plaintiff for her appearance. As per order dated 5-10-1988, it is found, she again appeared in person with her counsel Shri A. K. Shrivastava, in Court. But, on that date even she was not heard; and her case was not taken up. On the next date, namely, 7-10-1988 her counsel, Shri Shrivastava, appeared. Date for arguments was fixed and the matter was directed to be listed on 12 -10 -1988. It appears from the order sheet that on subsequent dates, namely, 12-10-1988, 1-11-1988, 4-11-1988, 15-11-1988, 17-11-1988 and 18-11-1988 the plaintiff-applicant remained absent. So also her counsel. Evidently, she had become unrepresented after 12-10-1988. It further appears that reply to plaintiff-appellant's application was filed on 12-10-1988 and on that hearing was fixed on 1-11-1988. In his reply the husband (defendant-respondent) challenged validity of the application and made prayer that decree of nullity of the marriage be passed.

(3.) I have not an iota of doubt that it was incumbent on the trial Court to notice the wife (plaintiff-appellant) on the said reply dated 12-10-1988 for the short and simple reason that a substantial relief was claimed in that reply by the husband, beside challenging maintainability of wife's application for withdrawal of the suit. Nothing of that sort was done and without giving any reason an order was passed on 1-11-1988 summarily dismissing application of the wife aforesaid dated 23-9-1988. The only ground to be read in the order of that date is that on case being called out, applicant's Advocate was found absent.