BIMLA DEVI Vs. SAT PAL SHARMA

JUDGEMENT

(1.) THE Appellant is the wife of the Respondent. The Respondent filed an application under Section 9 of the Hindu Marriage Act, 1955 (hereinafter called the Act) claiming a decree for restitution of conjugal rights on the ground that the Appellant had without any reasonable cause denied him her company. It is stated that an ex parte decree was passed against the Appellant on November 18, 1976. She filed an application before the learned Subordinate Judge, 1st Class, Mansa (Exercising the powers of District Judge under the Hindu Marriage Act), for setting aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure, on December 15, 1976. That application was dismissed by the trial Court on June 13, 1977. She has come up in appeal against the order, with a prayer that the ex parte decree passed against her may be set aside by us in exercise of our appellate jurisdiction.

(2.) MR . R.N. Narula, who appeared in response to notice of motion on Oct. 10, 1971, raised two preliminary objections. Firstly, it was submitted that typing charges of Rs. 100 should have been deposited along with the memo of appeal as laid down by the rules framed by this Court. The second objection was that no appeal was competent against the impugned order as the provisions of Order 43, Rule 1(d) of the Code of Civil Procedure do not apply to the case.

(3.) THE Appellant is the wife. She appeared before us and stated that she was not doing any work and was consequently not possessed of any funds. If the rule is strictly construed, as Mr. R.N. Narula desires us to do, the result would be that we shall not be able to give any redress to the Appellant even though an ex parte decree had been obtained against her by adopting questionable means. That interpretation would certainly go against the well -settled principles of rules of procedure as they are meant for advancing the interest of justice instead of retarding them. We accordingly hold that so far as the cases under the Act are concerned, this rule is of directory nature land it is open to this Court either to dispense with the deposit of typing charges by asking the party concerned to submit typed paper books or to condone the delay in making the deposit of these charges. It is not disputed that the Appellant did deposit this amount at a later stage. We accordingly allow C.M. 2283 C -II of 77 condone the delay in depositing these charges and hold that the appeal cannot be dismissed on this score.