Calcutta High Court (Appellete Side)
Pinkey Saraf vs Sudeep Kumar Saraf on 5 March, 2021
Author: Shampa Sarkar
Bench: Shampa Sarkar
S/L 4 05.03.2021Court. No. 19
GB C.O. 3674 of 2018 Pinkey Saraf Vs. Sudeep Kumar Saraf (Through Video Conference) Mr. Kushal Chatterjee, ... for the Petitioner.
Affidavit-of-service filed in Court today be kept with the record.
Affidavit-of-service shows that the addressee has moved. Thus, the service could not be completed, insofar as, the opposite party is concerned. However, the order impugned is an order refusing to condone the delay in filing an application for restoration of the suit, which was dismissed for default on March 8, 2018. The application for restoration was registered as Misc. Case No.16 of 2018. The Matrimonial Suit No.84 of 2017 was filed before the learned Additional District Judge, 1st Court at Sealdah, District 24 Parganas (South) on November 29, 2017. The said suit was thereafter transferred to the court of the learned Additional District Judge, Fast Track 2nd Court, Sealdah.
It appears that on the third occasion when the suit appeared before the learned court below, the same was dismissed for default as none appeared on repeated calls. Records reveal that even summons had not been served in the said suit. It also does not appear from the records that 2 any directions were passed by the learned court below upon the plaintiff to take steps for service of summons. Dates had also not been fixed for S.R. and A.D. Hence, it is quite likely that the opposite party did not have nay notice about the suit at all.
In any event, the opposite party was not present during the call when the suit was dismissed for default and as this revisional application can be disposed of in the absence of the opposite party. Reference is also made to the provision of order IX of Rule 4 of the Code of Civil Procedure, which does not contemplate service when a suit has been dismissed as neither party appeared.
Upon discovering that the suit had been dismissed for default an application was filed by the wife under Order IX Rule 4 of the Code of Civil Procedure for restoration along with an application for condonation of delay in filing the said restoration application.
It appears that the delay was of 22 days. The learned court below rejected the application upon finding the explanation not to be satisfactory. The explanation given by the petitioner was that there was a misposting in the diary of the learned advocate's clerk and hence, the petitioner was not aware of the date nor was the learned advocate present on the date, the suit was dismissed for default.
I am satisfied with the ground stated in the application for condonation of delay as to why the petitioner was prevented by sufficient cause from filing the application 3 for restoration within the statutory period of limitation. This Court is also satisfied with the reasons given by the petitioner as to why the petitioner was not represented before the learned court below when the suit was dismissed for default.
The application for condonation of delay as also the application for restoration are allowed. The Matrimonial Suit No.16 of 2018 is restored to its original file and number. The petitioner is granted liberty to take steps for service upon the opposite party in terms of the Code of Civil Procedure as it is an admitted position that the husband/opposite party has shifted from the last known address.
The learned court below will proceed with the suit independently and in accordance with law.
The revisional application is disposed of. There will be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Shampa Sarkar, J.)