Smt.Neelima Nittala v. Vikram Duvvuri

THE HON'BLE SRI JUSTICE VILAS V.AFZUL PURKAR CIVIL REVISION PETITION Nos.644 AND 111 OF 2010 COMMON ORDER: These two civil revision petitions are directed against the impugned orders of the Family Court dated 24.12.2009 I.A.SR.No.8699 of 2009 and I.A.No.939 of 2009 respectively arising out of O.P.No.1186 of 2007 on the file of Judge, Family Court, City Civil Court, Hyderabad. The petitioner herein and the petitioner before the Family Court in these applications is the respondent-wife, whereas the respondent herein is the husband and petitioner in O.P.No.1186 of 2007. The said O.P., filed for dissolution of marriage between the petitioner and the respondent, was disposed of by the Family Court under judgment and decree dated 31.08.2009, wherein the O.P. filed by the respondent was allowed. The petitioner herein filed I.A.No.939 of 2009 seeking condonation of delay of 59 days in filing petition to set aside the said decree in O.P.No.1186 of 2007. The petitioner also I.A.SR.No.8699 of 2009 to set aside the decree in O.P.No.1186 of 2007 dated 31.08.2009. Both the said applications were considered by the learned Judge, Family Court and were dismissed on the ground that O.P.No.1186 of 2007 was already disposed of on merits and is not an ex parte order. The aforesaid orders passed by the Family Court, are subject matters of these civil revision petitions. Heard learned counsel for the petitioner and learned counsel for the respondent. Both the learned counsel have made submissions on merits as well as on the nature of the impugned order. I am of the view that it is not necessary to deal with the merits of the respective contentions inasmuch as the Family Court has also not gone into the merits of the respective applications filed by the petitioner. The Family Court has merely dismissed the applications on the ground that the order in O.P.No.1186 of 2007 is not an ex parte order and was already said O.P. was decided. The said assumption of the Family Court, however, is contrary to Order XVII Rule 3 of Civil Procedure Code, which reads as follows: “3. Court may proceed notwithstanding either party fails to produce evidence, etc- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, (the Court may, notwithstanding such default,- (a) if the parties are present, proceed to decide the suit forthwith, or (b) absent, proceed under rule 2)”. if the parties are, or any of them is, It is not in dispute that the petitioner never appeared before the Family Court on the date of hearing when the respondent, who was examined as PW.1, arguments were heard and O.P. was disposed of. Order XVII Rule 3 of C.P.C. extracted above would therefore show that when the parties who are not present before the Court, any orders passed by the Court could have been only under Rule 2 of Order XVII of C.P.C. The decision of the Court therefore would only be an ex parte decision and the applications filed for setting aside the said ex parte decision along with an application for condonation of delay was entertainable on merits by the learned Family Court. I am forfeited in the aforesaid view by a decision of the Supreme court in Prakash Chander Manchanda v. Janki Manchanda[1] wherein the Supreme Court held as follows: “ It is clear that in cases where a party is absent only course is as mentioned in O.17(3)(b) to proceed under R.2. It is therefore clear that in absence of the defendant, the Court had no option but to proceed under R.2. language of R.2 as now stands also Similarly clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under O.9. The explanation to R.2 gives a discretion to the Court to proceed under R.3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the Court has no option but to proceed to dispose of the matter in accordance with O.17 R.2 in any one of the modes prescribed under O.9, Civil P.C.” The learned counsel for the petitioner has relied upon a decision of this Court in Karumanchi Janakamma v. Bodapati Punnaiah[2], which also has taken a similar view as expressed above and therefore, I am of the view that the rejection of the applications filed by the petitioner referred to above is not justified and the orders of the learned Family Court are liable to be set aside. Since the Family Court has not considered the said applications on their own merits, I deem it appropriate to remit both the said applications for fresh consideration to the Judge, Family Court, Hyderabad. It may be mentioned that though the learned counsel for the petitioner graciously consented that application I.A.SR.No.8699 of 2009 should have been under Order IX Rule 13 of C.P.C. and not under Order IX Rule 9 of C.P.C., the Family Court treated the said application in accordance with Order IX Rule 13 of C.P.C. It is well settled that wrong provision mentioned would not by itself disentitle consideration of application on merits. Civil Revision Petitions are accordingly allowed. Both the I.As are remitted for fresh consideration. The Family Court is directed to hear and dispose of both the applications as early as possible, preferably within two months from the date of receipt of a copy of this order. No order as to costs. _______________________ VILAS V.AFZUL PURKAR, J 10th June 2010 Note: Issue CC of order by one week (B/o) Ivd [1] AIR 1987 SUPREME COURT 42 [2] 2009(6) ALT 72