TAPATI NASKAR Vs. LAKSHMI KANTO NASKAR

JUDGEMENT

(1.) THE learned Additional District Judge, 3rd. Court Howrah by the order complained of in this appeal, has dismissed as not maintainable the appellant wife's application under order 9 Rule 13 of the Code of Civil procedure for setting aside the ex parte order and decree dated 31st August, 1979 in Matrimonial Case No. 18 of 1978 brought by the respondent husband for relief under section 9 of the Hindu Marriage Act, 1956. The learned Additional district Judge has, inter alia, held that his predecessor in office had decreed the said matrimonial suit according to the provisions of Rule 3 of Order 17 of the code and therefore, the application under Order 9 Rule 13 of the Code for setting aside the decree did not lie. The petitioner's proper remedy was by way of appeal against the ex parte decree.

(2.) IN order to decide whether the said application under Order 9 Rule 13 of the Civil Procedure Code was maintainable, it would be necessary to set out the facts and circumstances relating to the passing of the said ex parte decree in Matrimonial Suit No. 18 of 1978. On or about 9th March, 1978 the respondent husband had fired the said application under section 9 of the Hindu marriage Act for restitution of conjugal rights which was registered as Matrimonial Suit No. 18 of 1979 of the 3rd Court of the learned Additional District Judge, Howrah. The present appellant, who as respondent in the suit, had filed a written statement contesting her husband's claim. It appears that on 8th January, 1979 the court below had previously decreed the suit ex parte because the present appellant had failed to appear. Thereafter, on her application made under Order 9 Rule 13 of the. Code the court below set aside the said ex parte decree and restored the suit. The suit had been fixed for peremptory hearing on 16th August, 1979. On the said date the petitioner's husband was examined as a witness and he was also cross-examined on behalf of the respondent wife. On behalf of the petitioner husband it was endorsed on the hazira that he proposed to examine no other witness. Accordingly, evidence on his side was closed. At that stage the respondent in the court below (the appellant before us)prayed for adjournment of the case to enable her to move the Learned District Judge, Howrah an application under Section 24 of the Code of Civil Procedure for transfer of the suit. The learned Additional District Judge, Howrah had adjourned the case to 27th. August 1979.

(3.) THE present appellant had filed an application under section 24 of the Code of Civil Procedure before the learned district Judge, Howrah which was registered as Miscellaneous Case No. 110 of 1979. On 27th August, 1979 the present appellant had again prayed before the learned Additional District Judge, 3rd. Court, Howrah for stay of further proceedings in the said matrimonial suit till the disposal of the aforesaid Miscellaneous Case No. 110 of 19791 The learned Additional District Judge had granted time till 31st August, 1979 for bringing the stay order in default further hearing of the suit would take place. The learned District Judge, Howrah did not dispose of the said application under Section 24 of the Code of Civil Procedure and declined to grant interim stay of the hearing of the said Matrimonial suit. On 31st August, 1979 she had applied before the Learned Additional District Judge, 3rd Court, Howrah along with an advocate's letter for further adjournment of the matrimonial suit in order to enable her to move the high Court against the order of the learned District Judge. The learned Additional District Judge had refused her said prayer for adjournment. She had made a second application on the same date for stay of the peremptory hearing in order to enable her to bring stay order from the High Court. The learned Additional District Judge rejected the said petition and directed the parties to get ready at once.