(M/S) Sanjay Smt. Kavita v. Hon

Heard Mr. Nikhil Singhal, Advocate holding the brief of Mr. Tapan Singh, Advocate for the petitioner. No one appears for the respondent inspite of service. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 18.5.2011 passed by Additional Judge, Family Court, Rishikesh, Dehradun, whereby the said court has restrained the petitioner from selling and transferring the land of Khata No.968 Khasra No.674 M measuring 0.130 H. According to the petitioner, the marriage of the petitioner and respondent has been dissolved by the ex- parte judgment and order 25.2.2011. Thereafter, the respondent filed original suit no.44 of 2011 in the court of Additional Judge, Family Court, Rishikesh, showing her to be wife of the petitioner. Learned counsel for the petitioner has contended that respondent also filed an application under Order 9 Rule 13 of C.P.C. to set aside the ex-parte judgment and order dated 25.2.2011, which has also been dismissed for non-prosecution. 2 I have heard the learned counsel for the petitioner and have gone through the papers on record. By a perusal of the impugned order, it transpires that the impugned order has been passed presuming the respondent as wife of the petitioner. Therefore, the Court is of the view that the petitioner ought to have filed the objections under Order 39 Rule 4 of CPC for vacation of the ex-parte interim order passed by the Judge, Family Court. In the light of the aforesaid, the writ petition is disposed of giving liberty to the petitioner to objection(s) within four weeks from today and thereafter the said application filed under Order 9 Rule 13 of C.P.C. shall be decided within eight weeks after hearing both the parties and considering all the grounds raised in the objections. Rajni (B.S.Verma,J.) 23.11.2012