Madhya Pradesh High Court
Smt.A.Surekha vs Dr.A.Rajeshwar Raju Judgement Given ... on 19 December, 2013
1- FA.No.752/2008
First Appeal No. 752 /2008.
19/12/2013.
Shri Priyankush Jain, Advocate for the appellant.
Shri S. D. Mishra, Advocate for the respondent.
This appeal has been filed under Section 96 of the Code of Civil Procedure, challenging the ex-parte judgment and decree dated 17.12.207 passed by the Family Court, Rewa, in Civil suit no.27-A/07.
Even though, various grounds are raised in the memorandum of appeal to say that the proceeding held ex-parte against the appellant was not proper and certain communications and documents are relied upon for the same. In the light of the rebuttal of the same by the respondent, it is a case where a proper detailed factual inquiry into the allegations made with regard to justification given by the appellant for her non-appearance before the Family Court, has to be considered and without an inquiry into the matter, a decision in this appeal by the appellate court where an inquiry into the factual aspect of the matter is not possible, cannot be undertaken. If, ex-parte proceedings were held against the appellant, he could have moved an application under Order 39 Rule 1 & 2 CPC for setting aside ex-parte proceeding where an inquiry could have been conducted.
In view of the aforesaid, it is directed that in case, the appellant moves an application now before the court concerned for setting aside the ex-parte order, under Order 39 Rule 1 and 2 CPC alongwith proper application for condonation of delay, the learned 1 2- FA.No.752/2008 Court shall consider the same in accordance with the law and decide the same within a reasonable period preferably within a period of 3 months of its presentation. The appellant is granted one month's time from today to move application before the Court below and the Court below shall decide the application within a period of 3 months of its presentation.
With the aforesaid liberty to the appellant, appeal stands disposed of.
(Rajendra Menon) (Anil Sharma)
Judge Judge
Parouha/-
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