[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellant herein - original defendant to quash and set aside the impugned judgment and decree dated 05.07.2002 passed by the learned 2nd Joint Civil Judge (Senior Division), Bharuch in H.M.P. No.100 of 2000 as well as the impugned judgment and order dated 22.09.2005 passed by the learned Principal District Judge, Bharuch in Regular Civil Appeal No.5 of 2003 by which the learned Appellate Court has dismissed the said Appeal preferred by the appellant herein and has confirmed the ex-parte judgment and decree passed by the learned trial Court.
[2.0] That the respondent herein - original plaintiff/applicant instituted H.M.P. No.100 of 2000 against the appellant wife in the Court of learned Civil Judge (Senior Division), Bharuch for restitution of conjugal rights i.e. under Section 9 of the Hindu Marriage Act. It appears that after the written statement was filed, the appellant could not remain present before the learned trial Court and therefore, the H.M.P. proceeded ex-parte and the learned 2nd Joint Civil Judge (Senior Division), Bharuch by judgment and decree dated 05.07.2002 allowed the said application and decreed the said application.
[2.1] Feeling aggrieved and dissatisfied with the ex-parte judgment and decree passed by the learned trial Court in H.M.P. No.100 of 2000 in passing the decree under Section 9 of the Hindu Marriage Act, the appellant herein - original defendant preferred Regular Civil Appeal No.5 of 2003 before the District Court, Bharuch and the learned Principal District Judge, Bharuch by impugned judgment and order has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court.
[3.0] Today, when the present Second Appeal is taken up for final hearing, there is a broad consensus between the learned advocates appearing for respective parties that the judgment and orders passed by the Courts below be quashed and set aside and the matter be remanded to the learned trial Court to decide and dispose of the H.M.P. No.100 of 2000 afresh in accordance with law and on merits after giving opportunity to all concerned. The learned advocates appearing for respective parties do not invite any further reasoned order while quashing and setting aside the impugned judgment and orders passed by by both the Courts below and remand the matter to the learned trial Court hence, this Court is not assigning any further reasons.
[4.0] In view of the above broad consensus between the learned advocates appearing for respective parties recorded herein above, the impugned judgment and decree dated 05.07.2002 passed by the learned 2nd Joint Civil Judge (Senior Division), Bharuch in H.M.P. No.100 of 2000 as well as the judgment and order dated 22.09.2005 passed by the learned Principal District Judge, Bharuch in Regular Civil Appeal No.5 of 2003 are hereby quashed and set aside and the matter is remanded to the learned trial Court to decide and dispose of the H.M.P. No.100 of 2000 afresh in accordance with law and on merits and after giving opportunity to all concerned. It is made clear that this Court has not expressed anything on merits in favour of either parties and the learned trial Court to decide and dispose of the H.M.P. No.100 of 2000 afresh in accordance with law and on merits. Shri Mrugen Purohit, learned advocate appearing on behalf of the appellant has stated at the Bar that the appellant shall cooperate the learned trial Court in early disposal of the H.M.P. No.100 of 2000. Shri Barot, learned advocate appearing on behalf of the original applicant has also stated at the Bar that the original applicant and his advocate shall also cooperate the learned trial Court in early disposal of the H.M.P. In the facts and circumstances of the case as the main H.M.P. is of the year 2000 and there is a matrimonial dispute, the learned trial Court is hereby directed to finally decide and dispose of the H.M.P. on remand at the earliest but not later than 31.10.2013.
[5.0] Present Second Appeal is allowed to the aforesaid extent. No costs. Direct service is permitted.
(M.R.
Shah, J.) menon Top