(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Leave to amend.
1. Appeal is admitted and is taken up for final hearing and disposal at the request of the learned counsel for the parties.
2. This appeal arises out of following factual background:-
2.1. Appellant and opponent are husband and wife. The have long standing matrimonial disputes going on. Wife, therefore, filed Regular Civil Suit No.148 of 2007 before the Family Court, contending that there is a locker in Oriental Bank of Commercial, Junagadh in the joint name of the wife and husband. In such locker, stridhan properties of the wife are lying. She prayed that such bank locker be opened and the valuable articles lying in the locker be handed over to her.
2.2. Such Civil Suit came to be transferred to the Family Court, Junagadh and was renumbered as Family Suit No.58 of 2010. Despite service of summons, husband did not appear before the Family Court. It is his case that he was in jail for a considerable period of time, which prevented him from appearing before the Family Court. Be that as it may, it emerges from the record that such family suit proceeded ex-parte insofar as the respondent was concerned. Family Court by impugned judgment dated 21.6.2011 partially allowed the suit and directed the defendant No.2 Bank to break open the locker in presence of two panch witnesses and after making inventory of the of the articles found from the locker, to handover to the plaintiff wife.
2.3. After such decree was passed, husband filed Civil Misc. Application before the Family Court and prayed that ex-parte decree be set aside. However, such application came to be dismissed by order dated 10.4.2012.
3. We notice that such directions were given despite Family Court holding issue No.2 against the plaintiff. Such issue was, whether the plaintiff proves that ornaments or other articles lying in Locker No.276, are her own property. With respect to such issue, learned Judge specifically recorded that though it is a case of the wife that valuable articles lying in the bank locker are her stridhan property, from the record, it emerges that defendant No.1 is absconding, defendant No.2 Bank would obviously have no information about the articles in such locker. Therefore, till locker is opened, it would not be possible to conclude as to what articles are lying in the locker.
4. Learned Counsel Shri Tolia for the applicant submitted that in view of such findings of the Family Court, final decree in favour of the plaintiff could not have been passed. On the other hand, learned counsel Ms. Mandavia for opponent No.1 wife submitted that the husband had not responded to the summons issued by the Family Court. He was absconding. Family Court, therefore, had no choice but to pass such an order.
5. We are of the opinion that in view of the findings with respect to issue No.2 recorded by the Family Court, final decree directing opponent No.2 Bank to open bank locker and to hand over articles lying in such locker to the wife could not have been issued. On this short ground, we are inclined to interfere with the decree passed by the Family Court.
6. Matter, however, does not rest here. It is not in dispute that such valuable articles are lying in locker. Apparently, there were bitter disputes between husband and wife since long. The suit had proceeded ex-parte against the husband. Therefore, the suit of the wife is required to be reheard after enabling the husband to appear before the Family Court and to defend the suit.
7. We are, however, of the opinion that the Family Court should be requested to decided such issue after remand expeditiously and the husband should pay cost of this litigation.
8. Under the circumstances, impugned judgment and decree dated 21.6.2011 is set aside. Resultantly, order dated 10.4.2012 passed by the Family Court rejecting the application of the husband for setting aside the ex-parte decree does not survive. Proceedings are remanded to the Family Court for fresh disposal in accordance with law after hearing both the sides. Such remanded proceedings be disposed of expeditiously and preferably within six months from the date of receipt of the copy of this order. Appellant shall pay cost of Rs.5,000/- (Rupees Five Thousand only) to the opponent No.1. First Appeal is disposed of accordingly.
ORDER IN CIVIL APPLICATION:
In view of the order passed in the First Appeal, Civil Application does not survive. Disposed of accordingly. Interim relief, if any, stands vacated.
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(AKIL KURESHI, J.) Sd/-
(C.L.
SONI, J.) omkar Top