1. ADMIT.
Ms. Pooja Dave, learned advocate appearing for Shri Pinakin Raval, learned advocate waives service of notice of admission on behalf of the respondent.
2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present Second Appeal is taken up for final hearing today.
3. The following substantial question of law arises for determination of this Court in the present Second Appeal;
"Whether the learned appellate Court was justified in not entertaining the appeal against the ex-parte judgment and decree passed by the learned trial Court solely on the ground that there is a remedy available to the appellant to submit an appropriate application for setting aside the ex parte judgment and decree under Order 9 Rule 13 of the Code of Civil Procedure"?
4. It appears that the respondent-original plaintiff preferred H.M.P No. 20/2002 in the Court of learned Civil Judge (Senior Division), Gandhinagar for seeking divorce under Section 13 of the Hindu Marriage Act. It appears that by ex-parte judgment and decree dated 16/01/2003 the learned trial Court passed the decree of divorce. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (Senior Division), Gandhinagar dated 16/01/2003 in H.M.P. No. 20/2002 instead of submitting an appropriate application for setting aside the ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure, the appellant-original defendant preferred Regular Civil Appeal No. 11/2003 before the learned District Court, Gandhinagar and the learned Presiding Officer, Fast Track Court No. 2, Gandhinagar by impugned judgment and order dated 31/01/2006 has dismissed the said Appeal solely on the ground that the appellant-original defendant has a remedy available to submit an appropriate application for setting aside the ex-parte judgment and decree under Order 9 Rule 13 of the Code of Civil Procedure. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court in not entertaining the Appeal and/or dismissing the Appeal solely on the ground that the appellant-original defendant has a remedy available of submitting an application for setting aside ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure, the appellant-original defendant has preferred the present Second Appeal.
5. Ms.
Shalini Mair, learned advocate appearing on behalf of the appellant-original defendant has vehemently submitted that the learned appellate Court has materially erred in not considering the Appeal preferred by the appellant-original defendant on merits and in dismissing the same solely on the ground that the appellant-original defendant had a remedy available by submitting an application for setting aside ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure. It is submitted that it is choice of the appellant-original defendant to prefer an Appeal against the ex parte judgment and decree or application under Order 9 Rule 13 of the Code of Civil Procedure. It is submitted that even simultaneously the proceedings under Order 9 Rule 13 of the Code of Civil Procedure challenging the ex parte judgment and decree by way of Appeal before the learned appellate Court is permissible. It is submitted that only in a case where the Appeal has been preferred against the judgment and decree and the same is dismissed on merits, in that case, Order 9 Rule 13 application deserves to be dismissed. It is submitted that explanation to Order 9 Rule 13 makes it clear that separate independent Appeal against the ex-parte judgment and decree is permissible and, therefore, it is requested to allow the present Second Appeal and remand the matter to the learned appellate Court to consider the same in accordance with law and on its own merits.
6. Ms.
Pooja Dave, learned advocate appearing on behalf of the respondent is not in a position to support the impugned judgment and order passed by the learned appellate Court. However, has submitted that subsequently the respondent-husband has already re-married. The aforesaid aspects are required to be considered by the learned appellate Court at the time of deciding the Appeal on merits. What is required to be considered by this Court is whether the learned appellate Court is justified in dismissing the Appeal and/or not considering the Appeal on merits solely on the ground that the appellants had an alternative remedy available by way of submitting an application for setting aside ex parte judgment and decree under Order 9 Rule 13 of the Code of Civil Procedure.
7. Having heard the learned advocates appearing on behalf of the respective parties and considering the provisions of Order 9 Rule 13 and Section 96 of the Code of Civil Procedure, it appears to the Court that the learned appellate Court has materially erred in not considering the Appeal on merits and/or in dismissing the Appeal solely on the ground that the appellant-original defendant had a remedy available by submitting an appropriate application for setting aside the ex parte judgment and decree under Order 9 Rule 13 of the Code of Civil Procedure. Even considering the explanation to Order 9 Rule 13 of the Code of Civil Procedure, it is clear that a person against whom the ex parte judgment and decree is passed can have both the remedies available either by submitting an appropriate application for setting aside the ex parte judgment and decree under Order 9 Rule 13 of the Code of Civil Procedure and/or by filing substantive Appeal before the learned appellate Court. The only embargo for considering the application under Order 9 Rule 13 of the Code of Civil Procedure is that if the appeal against the ex-parte judgment and decree is dismissed on merits, thereafter the application under Order 9 Rule 13 of the Code of Civil Procedure is required to be rejected and/or the same is not required to be considered on merits. Under the circumstances, the learned appellate Court has materially erred in not entertaining and/or considering the Appeal preferred by the appellant on merits. Under the circumstances, the impugned order passed by the learned appellate Court deserves to be quashed and set aside and the matter is remanded to the learned appellate Court for considering the same in accordance with law and on its own merits. It will be open for the respondent-husband to take all the defenses, which might be available to him, inclusive of the fact that he has already re-married and the same be considered by the learned appellate Court in accordance with law and on its own merits.
8. In view of the above and for the reasons stated hereinabove, the present Second Appeal succeeds. The impugned order passed by the learned Presiding Officer, Fast Track Court No. 2, Gandhinagar dated 31/01/2006 in Regular Civil Appeal No. 11/2003 is hereby quashed and set aside and the matter is remanded to the learned appellate Court to consider the same in accordance with law and on its own merits. No cost.
(M.R.
SHAH, J.) siji Top