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$-25 il HIGH COURT OF DELHI
MAT.APP.(F.C.) 14/2015 &C.M.Appl. No. 2665/2015 (Stay)
JAYARANI !' i; Appellant
Through: Mr. A.K. Srivastava, Ms.Shalini
•; Mehdiratta, Advocates i'
MAT.APP.(F.C.) 14/2015 &C.M.Appl. No. 2665/2015 (Stay)
JAYARANI !' i; Appellant
Through: Mr. A.K. Srivastava, Ms.Shalini
•; Mehdiratta, Advocates i'
VERSUS
JYOTIBHATLA ? !i Respondent lihrough:
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE LS.MEHTA
13.02.2015 MAT. AFP. (F.C.) No.l4h015, C.M. AdpI. No. 2665/2015 (Stay) d
By this first appeal,'filed under Section 19 of the Family Courts Act, 1984, challenge is to thejudgment dated 16.01.2015, passed by the learned
Principal Judge, Family Qourts, Rohini, New Delhi in HMA No. 1386/2014 i! by which the ex-parte de^;ree of divorce has been granted in favour of the respondent. J
The appellant hasij also filed an application for seeking stay of the j'
'I impugned judgmentalongwith the appeal.
Heard ontheappeal as well asonthe application seeking stay ofthe impugned
HON'BLE MR. JUSTICE LS.MEHTA
13.02.2015 MAT. AFP. (F.C.) No.l4h015, C.M. AdpI. No. 2665/2015 (Stay) d
By this first appeal,'filed under Section 19 of the Family Courts Act, 1984, challenge is to thejudgment dated 16.01.2015, passed by the learned
Principal Judge, Family Qourts, Rohini, New Delhi in HMA No. 1386/2014 i! by which the ex-parte de^;ree of divorce has been granted in favour of the respondent. J
The appellant hasij also filed an application for seeking stay of the j'
'I impugned judgmentalongwith the appeal.
Heard ontheappeal as well asonthe application seeking stay ofthe impugned
ORDER
. ii
2015:DHC:11670-DB After some arguments, the learned counsel for the appellant seeks permission to withdraw the present appeal with liberty to file an application under Order 9 Rule 13 read with Section 151 of the CPC to seek setting aside ofthe ex-parte order dated 16.01.2015.
While withdrawing the present appeal, the learned counsel for the appellant has expressed his apprehension that the respondent may get remarried till the filing ofthe said application by the appellant for seeking necessary directions from the learned Family Court against his re-marriage.
We have heard the learned counsel for the appellant. The appellant earlier filed an application under Order 9 Rule 7 read with Section 151 of the CPC to seek setting aside of the ex-parte proceedings and the said application preferred by the appellant was dismissed by the learned Family
Court vide order dated 14.01.2015. This application was dismissed by the learned Family Court mainly on the ground that the defendant had moved the said application after the conclusion ofthe hearing in the case and just before the pronouncement of the judgment and therefore the provision of order 9 Rule 7 ofthe CPC would have no application. The learned Family
Court also observed that in such circumstance the remedy ofthe appellant would only be to file an application under Order 9 Rule 13 of the CPC after an ex-parte judgment is passed. This order was not challenged by the appellant since just after two days only, i.e. on 16.01.2015 the Court had pronounced the judgment which has been now assailed in the present appeal.
Certainly in our view also, the appellant at the first instance should have exhausted the remedy ofseeking setting aside ofthe ex-parte decree in terms ofOrder 9Rule 13 ofthe CPC, therefore, we permit the appellant to withdraw the present appeal with the liberty to file an application under
Order 9 Rule 13 CPC before the learned Family Court and the learned
Family Court to decide the same on its merits Pending disposal of such application, the Family Court may also protect the interest ofthe appellant in so far as her apprehension apropos the re-marriage ofthe respondent is concerned. For the time being, to enable the applicant to file the said application, we restrain the respondent from re-marrying for aperiod ofone month from the date of this order.
With aforesaid directions, the present appeal is dismissed as withdrawn.
KAILASIfGAMBHIR, J [TA J FEBRUARY 13, 2015 ~ pkb
2015:DHC:11670-DB After some arguments, the learned counsel for the appellant seeks permission to withdraw the present appeal with liberty to file an application under Order 9 Rule 13 read with Section 151 of the CPC to seek setting aside ofthe ex-parte order dated 16.01.2015.
While withdrawing the present appeal, the learned counsel for the appellant has expressed his apprehension that the respondent may get remarried till the filing ofthe said application by the appellant for seeking necessary directions from the learned Family Court against his re-marriage.
We have heard the learned counsel for the appellant. The appellant earlier filed an application under Order 9 Rule 7 read with Section 151 of the CPC to seek setting aside of the ex-parte proceedings and the said application preferred by the appellant was dismissed by the learned Family
Court vide order dated 14.01.2015. This application was dismissed by the learned Family Court mainly on the ground that the defendant had moved the said application after the conclusion ofthe hearing in the case and just before the pronouncement of the judgment and therefore the provision of order 9 Rule 7 ofthe CPC would have no application. The learned Family
Court also observed that in such circumstance the remedy ofthe appellant would only be to file an application under Order 9 Rule 13 of the CPC after an ex-parte judgment is passed. This order was not challenged by the appellant since just after two days only, i.e. on 16.01.2015 the Court had pronounced the judgment which has been now assailed in the present appeal.
Certainly in our view also, the appellant at the first instance should have exhausted the remedy ofseeking setting aside ofthe ex-parte decree in terms ofOrder 9Rule 13 ofthe CPC, therefore, we permit the appellant to withdraw the present appeal with the liberty to file an application under
Order 9 Rule 13 CPC before the learned Family Court and the learned
Family Court to decide the same on its merits Pending disposal of such application, the Family Court may also protect the interest ofthe appellant in so far as her apprehension apropos the re-marriage ofthe respondent is concerned. For the time being, to enable the applicant to file the said application, we restrain the respondent from re-marrying for aperiod ofone month from the date of this order.
With aforesaid directions, the present appeal is dismissed as withdrawn.
KAILASIfGAMBHIR, J [TA J FEBRUARY 13, 2015 ~ pkb