BALDEV RAJ Vs. NEELAM KANTA

JUDGEMENT

(1.) THIS petition filed under Section 115 of the Code of Civil Procedure Code, 1908 prays for quashing order dated 29.9.2003 passed by the learned District Judge, Karnal declining the prayer of the husband-petitioner for amendment of the stand taken in the reply to the application of the wife- respondent in which prayer for setting aside the ex parte judgment and decree dated 6.11.2001 was made. The husband-petitioner has initiated proceedings under Section 13 against the wife-respondent and in those proceedings, the wife-respondent was proceeded ex parte. When she came to know, she filed on application for setting aside the ex parte judgment and decree. The application was filed on 28.11.2001 and reply to the afore-mentioned application was filed by the husband-petitioner on 2.3.2002. After filing of reply, another application was filed for amendment of the reply under Order 6 Rule 17 of CPC with a prayer that the husband-petitioner be permitted to incorporate the averment that he has remarried with one Geeta Kumari daughter of Suraj Parkash and both of them have sworn affidavit to that effect before the Executive Magistrate Karnal on 10.12.2001. It is further sought to be pleaded that the husband-petitioner has been living and co-habiting with Geeta Kumari as his wife. A male child is said to be born on 6.12.2002 (?). The application was opposed and the learned District Judge has dismissed the same by observing that the prayer for amendment is complete misuse of process of the Court. It has further been observed that the factum of marriage was within the knowledge of the husband-petitioner on 3.2.2002 when he filed reply to the application and moreover, incorporation of amendment is not necessary for disposal of the application filed by the wife-respondent for setting aside the ex parte judgment and decree dated 6.11.2001.

(2.) AFTER hearing the learned counsel for the parties, I am of the view that there is no legal infirmity in the order passed by the learned District Judge. Once application of the wife-respondent is allowed for setting aside the judgment and decree dated 6.11.2001, she would be entitled to file written statement to which further pleadings could be filed by the husband-petitioner and the other facts which may be necessary for the dismissal of the main case, may be brought on record. For the purpose of deciding the application, the factum of second marriage of the husband-petitioner is not material nor it will assist the Court in disposing of the application for setting aside the judgment and decree dated 6.11.2001. The application itself was misuse of the process of the Court as has been rightly observed by the learned District Judge. Therefore, this petition is without any merit and is dismissed. The respondent shall be entitled to cost of Rs. 5000/-. Petition dismissed.