Shayesta Parveen v. Abdur Rasheed

For the Appellant/s : Mr. Md. Sufiyan For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH HONOURABLE MR. JUSTICE VIKASH JAIN And ORAL ORDER (Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH) 9 21-06-2012 The main stand of the appellant in this appeal is that the learned Principal Judge, Family Court, Bettiah, West Champaran has allowed claim of the respondent husband for restitution of conjugal rights in Matrimonial Case No. 92 of 2009 without ascertaining the fact that no notice had been validly served upon the appellant. The plea of the appellant is that the ex parte decree for restitution of conjugal rights is bad in absence of service of notice upon the appellant in the matrimonial case in question. The aforesaid plea requires investigation into the facts after perusal of the lower court records before the impugned judgment and order dated 14-5-2010 challenged in this appeal, can be set aside. In our considered view, the petitioner has adequate and effective remedy available to her by approaching learned 2 Patna High Court MA No.611 of 2010 (9) dt.21-06-2012 Family Court by filing petition under Order 9, Rule 13 of the C.P.C. for setting aside the ex parte decree on the aforesaid plea. In that view of the matter learned counsel for the appellant is permitted to withdraw this appeal for filing an application before the learned Principal Judge, Family Court under Order 9, Rule 13 of the C.P.C. and if such an application is filed beyond the period of limitation before the court below, the court below shall consider sympathetically the limitation petition keeping in view the time spent in filing and pursuing this appeal. (Shiva Kirti Singh, J) Naresh/- (Vikash Jain, J)