IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ M.F.A. No.7992/2015 (FC) BETWEEN:
DR. H. KIRAN KUMAR S/O. SRI H. JAGADISH GUPTHA, AGED ABOUT 36 YEARS, RESIDING AT NO.29, OPP: TO PART, 2ND CROSS, PATEL NAGAR, WARD NO.17, BELLARY TOWN AND DISTRICT. ... APPELLANT (BY SRI VINAY T.R., ADVOCATE) AND:
DR. JYOTHI S. KUMAR, AGED ABOUT 39 YEARS, RESIDING AT NO.34, 2ND CROSS, 7TH MAIN, KSRTC LAYOUT, J.P. NAGAR, II PHASE BANGALORE – 560 078. ... RESPONDENT (RESPONDENT SERVED) THIS MFA IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT AGAINST THE JUDGMENT AND DECREE DATED 15/09/2015 PASSED IN MISC.NO.208/2013 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE PETITION FILED U/O 9, RULE 9 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is filed by the husband against the respondent/wife assailing the order dated 15/09/2015, passed by the II Addl. Prl. Judge, Family Court, Bengaluru, in Misc.No.208/2013.
2. Briefly stated the facts are that the respondent herein had filed M.C.No.2003/2009 before the Family Court at Bengaluru under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act” for the sake of brevity). The said petition was not contested by the appellant herein. Thereafter, on 18/02/2009, an ex parte judgment and decree was passed directing the appellant herein to lead a marital life with the respondent herein, by allowing the petition under Section 9 of the Act. Being aggrieved by the ex parte judgment and decree passed in M.C.No.2003/2009, the appellant herein filed Misc.No.75/2010 seeking setting aside and recall of the said ex parte judgment and decree dated 18/02/2009, but the said miscellaneous case was dismissed for non- prosecution on 30/08/2011. Consequently, Misc.No.39/2012 was filed by the appellant herein seeking recall of the order dated 30/08/2011, passed in Misc.No.75/2010. In that proceeding, evidence was let-in by the appellant. But on 18/09/2013, the said miscellaneous petition was also dismissed for non- prosecution. Consequently, the appellant filed one more Misc.No.208/2013 seeking recall of order dated 18/09/2013. By the impugned order dated 15/09/2015, Misc.No.208/2013 came to be dismissed on merits. Being aggrieved, this appeal has been preferred.
3. We have heard learned counsel for the appellant and perused the material on record.
4. Respondent is served and unrepresented.
5. Appellant’s counsel submitted that M.C.No.2003/2009 has not been contested by the appellant herein. It is an ex parte judgment and decree. That there is no marriage which has taken place between the appellant and the respondent. Respondent sought for restitution of conjugal rights, which relief has been granted ex parte. That the appellant has married somebody else and is leading a marital life. Hence, the impugned judgment and decree passed in M.C.No.2003/2009 was sought to be recalled by filing Misc.No.75/2010. However, the same came to be dismissed for non-prosecution. Thereafter, Misc.No.39/2012 was filed by the appellant wherein evidence was let-in. The said petition was also dismissed for non-prosecution. Hence, Misc.No.208/2013 was filed by the appellant herein wherein evidence was let- in, but the same has been dismissed. He submitted that the reason for dismissal of Misc.No.208/2013 was that the appellant’s evidence was not let-in so as to demonstrate that, due to bona fide and unintentional reasons, he could not appear in the matter. Learned counsel for the appellant submitted that on account of consecutive dismissal of his cases, the appellant is now facing an ex parte judgment for restitution of conjugal rights, vis-à-vis respondent who is not married to him at all. Learned counsel submitted that the appellant has a good case on merits and if this Court is to permit the appellant to prosecute Misc.No.75/2010 by setting aside the impugned order dated 15/09/2015 and permitting restoration of Misc.No.39/2012, then justice would be done to the appellant.
6. As already noted, respondent/wife is served and unrepresented. The detailed narration of facts and circumstances would not call for reiteration, but what emerges is the fact that the appellant is not able to seek setting aside of the judgment and decree passed in M.C.No.2003/2009, which is an ex parte judgment and decree. His efforts in doing so have been in vain on account of dismissal of the miscellaneous cases filed by him on two occasions, for non-prosecution. But the impugned order in Misc.No.208/2013 is not dismissed for non-prosecution, but it is dismissed on merits. The trial Court has reasoned that the appellant herein has failed to prove that due to valid, legal and bona fide reasons his advocate could not appear in the miscellaneous case and in the absence of the evidence of the advocate, it cannot be held that there was good reason for the appellant or his advocate remaining absent in Misc.No.39/2012. Be that as it may, what has to be noted is that even in the absence of the advocate letting in his evidence, the Family Court could have considered the grievance of the appellant in light of the fact that the appellant has been faced with an ex parte judgment and decree passed under Section 9 of the Act. It is noted that in Misc.No.39/2012, the appellant has let-in his evidence, but the case was dismissed on merits in the absence of appellant as well as the advocate on 18/09/2013. It may be that there was absence of the advocate for the appellant herein in the said proceeding and it may be that the appellant was not present on 18/09/2013. However, in such cases it is unnecessary to take a myopic or narrow view of the matter, but to consider the larger interest of justice.
7. In the circumstances, we find that on account of the impugned order being passed against the appellant on merits, the appellant has been put to prejudice and it is not in the interest of justice. Therefore, the impugned order is set aside by allowing this appeal. Consequently, Misc.No.39/2012 is restored on the file of the Family Court, Bengaluru.
8. Since the appellant is represented, he is directed to appear before the Family Court, Bengaluru, on 18/11/2019 without expecting any notice from the said Court. The Court below shall dispose the said proceeding in accordance with law after giving adequate opportunity to the appellant herein.
9. The Family Court to issue notice to the respondent herein in Misc.No.39/2012 and thereafter to dispose of the said proceeding in accordance with law.
10. The appeal is allowed and disposed of in the aforesaid terms. No costs.
Sd/- JUDGE Sd/- JUDGE S*