Madhya Pradesh High Court
Smt. Usha Jain vs Satish Chand Jain on 21 April, 2017
1
M.C.C. No.389/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DB: SHEEL NAGU & S.A. DHARMADHIKARI, JJ
M.C.C. No. 389/2014
Smt. Usha Jain
Vs.
Satish Chand Jain
Whether reportable :- Yes /No
____________________________________________________________
For Petitioner : Shri H.K. Shukla, Advocate.
For Respondent : Shri Satish Chand Jain
ORDER
(Delivered on this Day of 21st April, 2017) Per Justice S.A. Dharmadhikari Heard finally with the consent of both the parties.
2) The petitioner has filed this petition under Order 41 Rule 21 of Civil Procedure Code for setting aside the ex- parte decree passed by this Court on 13/08/2014 in F.A. No. 431/2006 (Satish Chand Jain vs. Smt. Usha Jain), by which the appeal was allowed and the decree of divorce was passed against the wife (petitioner herein).
3) The respondent/husband filed a suit for divorce against the petitioner which was registered as Civil Suit No. 10/2006 HMA. The trial court dismissed the suit of the 2 M.C.C. No.389/2014 respondent. Being aggrieved the respondent filed First Appeal bearing No. 431/2006 before this Court. In the said First Appeal notices were duly served on the respondent (petitioner herein). The appeal came up for hearing on 13/08/2014. The said case was listed for final hearing and the same was taken up for hearing on 13/08/2014. However, on that day, counsel for the present petitioner could not appear before the Court, therefore, the matter was heard ex-parte. This Court allowed the appeal by setting aside the judgment and decree passed by learned District Judge. Accordingly, the marriage solemnized between the parties on 09/05/1983 stood dissolved by decree of divorce.
4) Learned counsel for the petitioner contended that the matter was listed for final arguments in the weekly cause list and due to inadvertence, he did not notice that the appeal was listed for hearing. It is submitted that non- appearance of the counsel is purely unintentional and inadvertent, therefore, ex-parte order dated 13/08/2014 deserves to be recalled.
5) On the other hand, learned counsel for the respondent submits that the marriage of the respondent 3 M.C.C. No.389/2014 with the petitioner was solemnized in the year 1983 and they lived together for two years only. The petitioner / wife often used to visit her matrimonial home and as a result she started quarreling with the respondent and was pressurizing him to live separately. The petitioner had lodged an FIR against the respondent and his family members. A criminal case was registered. Both of them are living separately since 1989. In the year 2004 when the petitioner refused to live with the respondent, he filed a petition for divorce. The petitioner lodged false report of harassment in the year 2001 under section 498-A of IPC against the respondent and his family members almost after 17 years of marriage.
6) Learned counsel for the respondent submits that the appeal was decided on the ground of cruelty and desertion. The proceedings under section 498-A of IPC ended in acquittal on merits. A criminal complaint lodged by wife (petitioner herein) against the husband (respondent) found to be false is a good ground for cruelty in divorce petition {See: (2013) 5 SCC 226, K. Srinivas Rao vs. D.A. Deepa & (2014) 16 SCC 34, K. 4 M.C.C. No.389/2014 Srinivas vs. K. Sunita}.
7) Heard learned counsel for the parties and perused the material available on record.
8) Order 41 Rule 21 of CPC reads as under :-
"21. Re-hearing on application of respondent against whom ex parte decree made : Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him."
From bare perusal of the aforesaid provision, it is clear that the court is required to be satisfied that either the notice was not duly served or he was prevented by sufficient cause for appearing when the appeal was called for hearing.
9) In the present case, it is not disputed that notice of the appeal was not served to the wife (petitioner herein). Learned counsel for the petitioner was not able to point out any sufficient cause which entitles the petitioner to re- hear the appeal in view of Order 41 Rule 21 of CPC. Moreover, the complaint made by the wife under section 5 M.C.C. No.389/2014 498-A of IPC was found to be false. The said complaint was dismissed vide order dated 01/12/2007 and the husband was acquitted on merits. Learned counsel for the petitioner is unable to show that he had applied for adjustment and that he was adjusted on the day when the hearing took place. The appellate court has dealt with the matter on merits and has passed well reasoned order which does not require any interference. Accordingly, no case is made out for interference in the judgment and decree dated 13/08/2014.
10) Resultantly, instant MCC stands dismissed. No order as to costs.
(SHEEL NAGU) (S.A. DHARMADHIKARI)
JUDGE JUDGE
Durgekar*