Court No. - 3
Case :- FIRST APPEAL No. - 305 of 2018 Appellant :- Satendra Singh Respondent :- Smt. Pushpa Devi Counsel for Appellant :- Krishna Kanhaiya Soni,Krishna Kumar Patel
Hon'ble Pankaj Mithal,J. Hon'ble Rajiv Joshi,J.
Heard learned counsel for the plaintiff-appellant.
The plaintiff-appellant instituted a suit for divorce and the same was decreed ex parte on 4.4.2017. The respondent-wife applied for setting aside the ex parte decree under Order IX, Rule 13, C.P.C. within time. The said application has been allowed by the impugned order dated 20.2.2018 by the Family Court and the ex parte decree has been set aside with a direction to restore the suit on its original number for decision on merits.
The submission of learned counsel for the appellant is that respondent-wife was appearing in the case and as such there is no justification for her absence on the date of ex parte decree.
No doubt, the respondent-wife was appearing in the case but on the particular date, it has been stated that she was suffering from jaundice and was also not allowed leave by her department. She had given information regarding her illness to her previous counsel, who assured her that he will appear and do pairvee in the case. He had not appeared and as such she cannot be penalized for the default on the part of her counsel.
The aforesaid grounds on which the ex parte decree is sought to be set aside, have not been controverted by the plaintiff- appellant.
In the above circumstances, we are of the view that the respondent-wife was prevented by sufficient cause from appearing on the date fixed, therefore, the court below has not committed any error in setting aside the ex-parte decree and directing the divorce petition to be decided on merits.
There is no merit in this appeal and the same is accordingly dismissed.
Order Date :- 27.4.2018 SNT/