Charanjit Kaur vs Surenderjit Singh

H.S. Bedi, J.—By this judgment, I propose to dispose of Civil Revisions No. 786 of 1991 and C.R. 787 of 1991. The facts have been taken from civil revision 787 of 1991. In a matrimonial dispute between the parties pending in the Court of Additional District Judge, Panipat, the parties were called upon to appear before the Court on 26th of September, 1990. It is the case of the respondent that though he was not served on that data but it was nevertheless declared a holiday on account of the demise of Hon''ble Mr. Justice Sabyasachi Mukherjee the Chief Justice of India at that time. The case of the respondent further is that on 27th of September, 1990 the case was dismisied in default. Against the said order, the respondent filed an application under Order 9 Rule 9, of the C.P.C. for having it set aside. This application was allowed on 8th of February, 1991 in the presence of the parties. The petitioner thereafter moved an application for review of the order dated 8th February, 1991 but that too was dismissed on 23-2-91. The petitioner has impugned the orders dated 8-2-1991 and 23-2-1991 by filing C.R. 787 and 786/9i respectively.

The only argument of the learned counsel for the petitioner it that tha order setting aside the dismissal in default was made without notice to the petitioner or her counsel as required by Order IX Rule 9 Sub-rule (2). While this stand has been controverted by the learned counsel for the respondent, he has in addition, urged that the petitioner was present in person on that day and as such it should be deemed as if the had been served. He has also urged that in view of the judgments reported in Choukhanybag Tea Company Pvt. Ltd. and Ors., v. Prabhu Dayal Lohia and Ors. AIR 1979 Gau 37 and CWP No. 2538 of 1989, decided by Hon''ble Mr. Justice V.K. Jhanji on 4th of December, 1991 (Bhiwani Sahi Bishamber Dayal v. Deena) no prejudice has been suffered by the petitioner as she was admittedly present when the order of 8-2-1991 was made, and as such this Court sitting on the revisional Jurisdictions should not interfere.

I have gone through the arguments of the learned counsel for the parties and find that the petition deserves to succeed. Although the petitioner was present though fortuitously the time when the order dated 8- 2-98 was made, but it also appears that she had not received the notice of the application that bad admittedly been issued by the Court and this is evident from the application for review that she filed and which was disposed of by the orders dated 23rd February, 1091. It appears, therefore, that there has been a non-compliance with the mandatory provisions of Sub-Rule (2) of Rule 9, Order 9. The judgments cited by the learned counsel for the respondent do not assist him in his case. In Prabhu Dayal Lohia''s case (supra) the intimation of the application for setting aside the order of dismissal in default had, admittedly been given to the parties concerned and as such no prejudice was suffered, whereas in Bhiwani Sahi Bishamber Dayat''s case (supra) this Court declined to interfere in the discretion exercised by the Rent Controller and in addition this -was a matter where the requirement of Order IX Rule 9(2) service of a required notice was not in issue.

Mr. Goel has further urged that us the respondent was called upon to appear on 26th of September 1990 which was declared as a holiday as stated above, there was, therefore, no requirement for him to appear on 27th of September. 1990 and as such as order of dismissal in default could not have been made on that day. In support of his case, he has cited Mst. Dhapan v. Ram Saran 1957 PLR 99 and Tara Chand v. Kabul Chand ILR 1964 (2) (Pb) 880 DB. As I intend remanding the case to the Additional District Judge for re-decision, I do not deem it necessary to express any opinion on this aspect of the matter. The present petition is therefore, allowed to the limited extent, with regard to the matter pertaining to the dismissal in default and if letting aside and the parties are directed to appear before the Court at Panipat on 15-12-1992. The Additional District Judge will take steps to dispose of this matter as also the main case expeditiously in terms of the order of the Hon''ble Supreme Court dated 19-4-90.

It is also noted here that Mr. Goel has submitted a draft of Rs. 3300/- representing six months maintenance in favour of the petitioner which has been handed over to her counsel Mr. Suresh Amba. No costs.