Mr. E.R.V. Prasad vs Smt. Gayathri Lakshmi

K.L. Manjunath, J.—The appellant has filed this appeal being aggrieved by the dismissal of his petition i.e., Misc. No. 129/2011 filed under Order 9 Rule 9 of CPC to restore Misc. No. 53/2010 which has been dismissed on 2.9.2011, passed by the Principal Judge, Family Court, Bangalore on 4.6.2012. By the consent of the learned counsel for the parties, it is taken up for disposal.

In Misc. No. 129/2011, the admitted facts are that the appellant filed M.C. No. 2292/2007 u/s 13(1)(ia) of the Hindu Marriage Act against his wife for a decree of divorce on the ground of cruelty. The said petition came to be dismissed for non-payment of interim maintenance. To restore the said petition, Misc. No. 53/2010 came to be filed under Order 9 Rule 9 of CPC. The said petition came to be dismissed for not taking steps. To restore these petitions Misc. No. 129/2011 came to be filed. The learned Judge has dismissed the petition on technicalities on the ground that the provisions quoted in the petition is bad in law.

Heard the learned counsel for the parties.

Merely on the ground of not mentioning the proper provisions of law, the petition could not have been dismissed by the Trial Court, the Trial Court should have made an observation that whether the petition filed by the appellant discloses the cause of action for setting aside the dismissal of earlier petition. As a matter of fact, if a petition filed under Order 9 Rule 9 of CPC is dismissed for non prosecution, to restore the said petition only petition u/s 151 of CPC invoking the inherent provisions of the Court could have been filed. Even, if the Advocate representing the appellant has quoted a wrong provision of law, it is for the Trial Court to look into the pith and substances of the matter and grant relief to the parties.

Therefore, we are of the view that the order passed by the Family Court on 4.6.2012 in Misc. No. 129/2011 has to be set aside and to do complete justice to the parties, Misc. 53/2010 is also required to be allowed by restoring the original MC petition i.e., M.C. No. 2292/2007. Otherwise, the appellant is required to move the Family Court to consider his petition filed under Order 9 Rule 9 of CPC in Misc. No. 53/2010 dismissed on 2.9.2011. On account of delay and technicalities, if the petitioner is entitled for a decree of divorce, it would not be a fruitful decree as the appellant is aged about 45 years. Now, in the interest of both the parties, this appeal is allowed. M.C. No. 2292/2007 is hereby restored. Parties are directed to appear before the Family Court, Bangalore on 6.1.2014. The appellant is also directed to pay interim maintenance to the respondent as ordered by the Family Court till December 2013. He is also directed to pay interim maintenance as and when it accrues to.