ABHISHEK CHAUHAN Vs. PAYAL CHAUHAN

JUDGEMENT

(1.) This revision is directed against the order dated 1.10.2011 passed in M.J.C. No. 08/2010, by the Additional District Judge to the Court of First Additional District Judge, Sehore, whereby the application filed by the respondent under Order 9 Rule 13 read with Sec. 151, Civil Procedure Code has been allowed and the ex parte judgment and decree passed in the application for grant of divorce filed by the petitioner has been set aside.

(2.) The facts giving rise to filing of this revision are that the marriage of the petitioner was solemnised with respondent on 22.2.2008 as per Hindu custom. The petitioner and respondent lived together up to 17th May, 2008. Alleging that the respondent started cruelty and misbehaviour with family members of the petitioner, he approached the Court of the Additional District Judge to the Court of First Additional District Judge, Sehore by making an application under Sec. 13-A of the Hindu Marriage Act for dissolution of the marriage. It is alleged that the notice of the said application was issued to the respondent and the same was sent by registered A.D. post, but the same was returned by the postal authority with a note that the same was refused to be accepted by the respondent. This fact was recorded by the Court below in the order sheet dated 29.1.2010 and an ex parte proceedings were done. The case was fixed for recording evidence of the petitioner and after recording his evidence, an exparte judgment and decree was passed on 26.3.2010. It is contended that the direction was given by the Court that the said judgment and decree be sent to the respondent and the same was sent under certificate of posting. There was no occasion for the respondent to move any application for setting aside the exparte judgment and decree, but an application was filed under Order 9 Rule 13 read with Sec. 151 of Civil Procedure Code for setting aside the ex parte judgment and decree in case No. 66-A/ 2009 decided on 26.3.2010. Such an application was contested by the petitioner and it was categorically contended that the application was hopelessly barred by limitation.

(3.) An application under Sec. 5 of the Limitation Act was filed by the respondent for condoning the delay. The said application was also opposed by the petitioner. It is the contention of the petitioner that after recording of the evidence, the Court below has condoned the delay in filing the application under Order 9 Rule 13 read with Sec. 151, Civil Procedure Code by allowing the application under Sec. 5 of the Limitation Act and has further allowed the application for setting aside the ex parte judgment and decree, without considering the material fact that the registered envelope was sent to the respondent and there was no cogent evidence available to demonstrate that such an envelope was never offered to the respondent. Thus, it is contended that improperly the ex parte judgment and decree is set aside by the Court below by passing the order impugned and, therefore, this revision is required to be filed.