BHERULAL Vs. RESHAM BAI

JUDGEMENT

(1.) HAVING heard the learned counsel for the applicant (defendant) and having perused the record of the case, I find no merit in the revision. It is accordingly liable to be dismissed in limine.

(2.) IT is a revision filed by the plaintiff. He obtained ex parte decree in matrimonial case against the respondent. The respondent then applied for its setting aside. This application made under Order 9 Rule 13 of CP Code was contested by the applicant. It was rejected. An appeal was filed by the respondent. By impugned order dated 29.11.2002, passed by learned VII Additional District Judge (Fast Track), Ujjain in Miscellaneous Appeal No. 9 of 2002, the learned first appellate Judge allowed the appeal and as a consequence, set aside the ex parte decree. It is against this order, the plaintiff has come up in revision. The plaintiff says that ex parte decree should not have been set aside by the first appellate Court.

(3.) EVEN otherwise, when I read the impugned order, it is in conformity with the requirement of Order 9 Rule 13 ibid, it is held, and in my opinion, rightly, that when lawyer reported no instructions and none appeared for defendant (lady), she ought to have been noticed. Indeed, this is the view of Supreme Court in one recent case where Their Lordships had observed that notice to party should have been sent before he was placed ex parte. In view of this, placing reliance by learned counsel on a decision reported in 2002 (I) MPWN18 is of no consequence. In any event, the setting aside of an ex parte decree does not cause any prejudice to plaintiff because he will get full opportunity to prove his case on merits. It is always better to have judicial verdict on merits rather than to have it ex parte. Civil revision thus, fails and is dismissed in limine.