Sow. Rekha Anil Bhosale vs Anil Gopalrao Bhosale on 7 September, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

FAMILY COURT APPEAL NO. 10 OF 2017

Sow. Rekha w/o. Anil Bhosale, .. Appellant
Age. 27 years, Occ. Household,
R/o. At present c/o. Venkatrao Namdeorao
Kamble, At. Devarjan,
Tq. Udgir, Dist. Latur.

Versus

Anil s/o. Gopalrao Bhosale, .. Respondent
Age. 33 years, Occ. Education,
R/o. Bajrang Colony,
Opp. M.G.M. College,
Nanded, Dist. Nanded.

Mr.P.G. Rodge, Advocate for the appellant.
Mr.G.G. Suryawanshi, Advocate for sole respondent.

CORAM : T.V.NALAWADE
S.M.GAVHANE,JJ.

DATED : 07.09.2017

JUDGMENT [PER : S.M. GAVHANE, J.] :-

1. The appellant, wife of the respondent whose

Civil Misc.Application No.2 of 2016 filed under section 5

of the Limitation Act for condoning delay of 1 year, 9

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months and 24 days caused in filing application for

setting aside ex-parte judgment and decree dated

07.05.2014 of divorce passed against her by the Principal

Judge, Family Court, Nanded in Petition No. A 159 of 2014

(HMP No.140 of 2013) was rejected by the Judge, Family

Court, Nanded, has filed this appeal under section 19 of

the Family Courts Act, 1984, challenging the said order,

mainly on the ground that she had engaged an Advocate in

HMP No.140 of 2013, in the Court of Civil Judge, Senior

Division, Nanded, but the said Advocate neither attended

the dates of hearing nor filed her say by seeking

instructions from her and hence no say order was passed

against her. Thereafter, said proceeding was transferred

to the Family Court, Nanded and came to be registered as

Petition No.A 159 of 2014 and there was no notice of the

same to her nor the Advocate appointed by her appeared in

the said petition before the Family Court. So also her

Advocate did not inform further dates and progress in the

matter to her and as such ex-parte judgment and decree

was passed against her for no fault of her. Being in

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utter disregard to the principles of natural justice, the

said judgment and decree requires to be set aside and she

deserves to be given an opportunity of contesting the

matter by filing her say and leading evidence.

2. The said delay condonation application was

resisted by the respondent by filing say at Exh.13. He

denied almost all the allegations made against him by the

appellant. It was contended that the appellant cannot

plead absence of knowledge. The appellant has

deliberately not mentioned the date on which she got

knowledge of divorce decree. According him, the grounds

mentioned in the application are not satisfactory and

thus he prayed to reject the application.

3. Considering the evidence adduced by the parties

in support of their respective contentions and arguments,

application to condone delay was rejected by the impugned

order.

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4. We have heard the learned advocates appearing

for both the sides.

5. As per order dated 03.02.2017, this Court had

called for record and proceedings. The record and

proceedings in Civil M.A.No.2 of 2016 in which the

impugned order was passed, was required to be called by

the office. But it appears that the record and

proceedings in Petition No.A 159 of 2014, (old HMP No.140

of 2013) (Anil Vs. Rekha) was called and the same was

received on 06.03.2017. The Registrar (Judicial) of this

Court to bring this fact to the notice of all the

concerned to avoid such instance in future.

6. However, as the copies of the impugned order and

the application Civil M.A. No.2 of 2016 are filed on

record with the appeal, we have perused the same with

record and proceedings in Petition No.A 159 of 2014 (Old

HMP No.140 of 2013).

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7. There is no dispute that the respondent husband

had filed HMP No.140 of 2013 against the appellant wife

in the Court of CJSD at Nanded on 11.06.2013 and in the

said petition, the appellant had appeared through

advocate on 24.10.2013 as seen from Roznama in Petition

No.A 159 of 2014, when it was pending before the CJSD,

Nanded. Thereafter, said petition was transferred to the

Family Court, Nanded and it was decided on 07.05.2014.

So also there is no dispute that the present

appellant/respondent in above said petition had filed

application for setting aside ex-parte decree along with

Civil M.A.No.2 of 2016 for condoning the delay caused in

filing application for setting aside ex-parte decree.

The said application to condone the delay was filed on

29.02.2016.

8. On the background of above admitted facts, the

only aspect which is required to be considered is whether

the appellant/original applicant in the delay condonation

application has shown sufficient cause to condone delay

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caused in filing application to set aside ex-parte

decree. According to appellant, advocate who represented

her in the Court of CJSD did not inform her about the

dates of hearing and stage in the HMP and so also she had

no knowledge of transfer of HMP to the Family Court,

Nanded. It appears that she stated the same in her

affidavit filed before the Family Court, Nanded in

support of the delay condonation application. Of course,

she seems to have not filed affidavit of her advocate in

support of delay condonation application.

9. The record and proceedings in Petition No. A 159

of 2014 shows that before it was transferred to the

Family Court, Nanded from the Court of CJSD, Nanded, it

was pending for say of the appellant, who is respondent

in the said petition and she was absent. Therefore, in

order to give her knowledge of transfer of the said

petition from the Court of CJSD, Nanded to the Family

Court, Nanded as well as when the establishment of Court

of CJSD, Nanded and the Family Court, Nanded are two

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different establishments, it was necessary for the

transferee Court i.e. Family Court, Nanded to give notice

to the present appellant for her appearance before the

said Court. Therefore, delay caused in filing application

to set aside ex-parte decree on the ground of no notice

of transfer of HMP to the Family Court, Nanded to

appellant is sufficient to condone the delay.

10. The learned Judge of Family Court while

rejecting the delay condonation application, relied upon

ratio laid down in the Case of Ramchandra Nathu Ghadage

Ors. Vs. Rajaram Nathu Ghadage Ors., 2007(5) Bom.CR 354

(equivalent citation – 2007(5) All MR 175) and observed

that when a case was transferred from one Court to

another and the parties are represented by the lawyers

notice is not necessary. As per the facts of the above

decision, the suit was transferred from the Joint Civil

Judge, Junior Division to the 5th Joint Civil Judge,

Junior Division at the same station. The defendants had

appeared on receipt of summons in the suit on 10.09.1981

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through an advocate. It was held that when the transfer

of proceeding from one Court to another Court at the same

station is done, no notice is required to be given to the

parties so long as they have caused their appearance

through advocate or in person. The record also indicates

that some applications were filed on behalf of the

defendants, but no written statement was filed in spite

of more than 10 opportunities having been given. In the

present case, as observed earlier, when divorce petition

was pending before the Civil Judge, Senior Division,

Nanded, it was for no say evidence and then it was

transferred to the Family Court, Nanded. The transfer of

the said petition from the Court of Civil Judge, Senior

Division, Nanded to the Family Court, Nanded was not only

transfer of petition from one Court to another Court at

the same station as per facts of the decision relied upon

by the learned Judge of the Family Court, but it was

transfer of petition from one Court to another Court

having two different establishments. Therefore and when

it appears from Roznama in the divorce petition that when

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it was transfered to the Family Court, Nanded, it was for

no say evidence and the appellant and her advocate were

absent, notice of transfer of said application to the

appellant/respondent in said petition for appearance

before the Family Court, Nanded was necessary and

therefore, the ratio laid down in the case of Ramchandra

Nathu Ghagade (Supra) cannot be suitably made applicable

to this case.

11. For the aforesaid reasons, we hold that it is a

fit case to condone the delay caused in filing

application to set aside ex-parte decree passed in

Petition No.A 159 of 2014 by setting aside the impugned

order dated 19.12.2016 in Civil M.A. No.2 of 2016 and the

said application filed by the appellant needs to be

allowed by allowing this appeal. Hence, following order

is passed.

12. The appeal is allowed. The order made by Family

Court, Nanded in Civil Misc. Application No.2 of 2016 on

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Exh.1 is hereby set aside. The application filed for

condonation of delay of one year nine months and twenty

four days is allowed. The delay is condoned.

[S.M.GAVHANE,J.] [T.V.NALAWADE,J.]

snk/2017/AUG17/fca10.17

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