Sayantan Chakravarti v. Leena De.Chakravarti

(1) Whether reporters oflocal paper may be allowed to see thejudgment? (2) To be referred to the reporter or not? (3) Whether thejudgmentshould be reported in the Digest? n

JUDGMENT

ARUNA SURESH.J.(Oral)

1. Petitioner had filed a divorce petition bearing HMA NO. 409/06 under Section 13 (1)(ib) of the Hindu Marriage Act (hereinafter referred to as the 'Act')seeking dissolution ofthe marriage by a decree of divorce on 29"' May,2006. In the said petition, respondent had filed an CM(M)No.69/2010 Page 1 of[5] 2010:DHC:7182 application on 10 October, 2006 under Section 24 of the Act claiming maintenancependentlite as well as litigation expenses. On24^September, 2008 when none appeared on behalf ofthe petitioner despite several calls till 2.21 PM, Trial Court was pleased to dismiss the petition in default. However, application under Section 24 ofthe Act was kept pending and was ordered to be separated from the main file. On 24^*" September,2008. itself, the court heard the arguments on this application and adjoumed the matter to 10^** October,2008 for further arguments as well^for orders on the same.

2. The Trial Court pronounced the orders on the application on th 15 April, 2009 when none of the parties were present. It seems that inadvertently the court adjourned the matter to 22"^* May,2009 for filing of documents, admission/denial and framing of issues. Oblivious of the dismissal of the main petition in default on 24^*^ September, 2008, proceedings continued under this bona fide belief that petition was still subsisting. The court proceeded with framing ofissues and recording of til evidence ofthe petitioner. It was only on29 September,2009that counsel for the respondent brought to the notice ofthe court that the main petition was dismissed in defaulton 24^*^September,2008 and had notbeen restored thereafter. On 2\^ October, 2009, the court recorded the statement of counsel for the respondent that it was by inadvertence that the matter was. CI^(M)No.69/2010 Page2of[5] listed for trial ofthe petition on different dates as the court was ignorant of the order dated 24^ September, 2008. The Trial Court noted down that petitioner also did not bring to its notice that the petition had already been dismissed in default on 24"^ September, 2008 and he continued with the proceedings of the petition. Since respondent counsel had filed an application under Section 151 CPC on 29"" September, 2009 for bringing this factto the notice ofthe Trial Court,petitioner filed an application under Order9Rule 4CPC seeking restoration ofthe petition.

3. The said application was dismissed by the Trial Court vide impugned order dated November, 2009 with the following observations " In the whole application which is under disposal,the petitioner has no where stated as to why nobody appeared on his behalf before this court on 24.09.08. It is also nowhere disclosed in the application as to why the petitioner did not seek restoration of the petition during this period of more than a year after the passing of the order dated.24.09.08. Application deserves to be dismissed outrightly for two reasons. Firstly, same is time barred and the petitioner has not sought condonation of delay in filing the same. Secondly, no reason at all has been put forward by the petitioner regarding his absence and absence of his counsel before this court on 24.09.08."

4. During the course ofarguments when asked, learned counsel for the petitioner, who has been representing the petitioner in the Trial CM(M)No.69/2010 Page 3 of[5] \ ■9 Court, could not disclose any cause for his absence as well for absence of the petitioner on 24^ September, 2008 when petition was dismissed in default. Counsel for the petitioner submitted thatpetitioner is settled abroad th and it was bis duty to appear in the court and represent bim on 24 September, 2008 but, be did not recollect the reason why be bad not th appeared to prosecute the petition on 24 September, 2008.

5. Order 9 Rule 9 CPC permits the petitioner to file an application for setting aside the dismissal order, provided be satisfies the Court that there was sufficient cause for bis non-appearance when the case was called for bearing. However, as pointed out, petitioner did not disclose any cause much less sufficient cause to satisfy the Court for bis, nonappearance on 24"^ September, 2008 when the case was callednot once but repeatedly till 2.21 PM when it was dismissed for non-appearance. It was the duty of the petitioner to inspect the record and note down the proceedings conducted by the court on a particular date specially when be was not present in the court. It is not the case of wrongnoting down of the date by counsel for the petitioner. Date of knowledge for filing of the petition, therefore, cannot be attributed to be 29"" September, 2009, when counsel for the respondent objected to filing of an affidavit in evidence by petitioner and also moved an application under Section 151 CPC for the samepurpose. Admittedly,no application for condonationofdelay in filing CM(M) No.69/2010 the application for restoration was moved by the petitioner. The Trial Court, therefore, also rightly considered the maintainability of the application and observed thatit was barred by period oflimitation. these circumstances,I find the order ofthe Trial Court, just and proper. Hence,petition is dismissed.

ARUNA SURESH,J. JANUARY 19,2010 sb