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Smt Sheetal vs Dr. Jitendra on 14 March, 2019

F.A. No.1777/2018 1

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
F.A. No.1777/2018
Smt. Sheetal v/s Dr. Jitendra
Indore, dated 14.03.2019
Shri Paresh Joshi, learned counsel for the
appellant.
Shri Mukesh Tare, learned counsel for the
respondent.

The present First Appeal is arising out of the order
dated 23.02.2018 passed by the Additional Principal
Judge, Family Court, Ujjain in Guardian Case No.3/2016.

The facts of the case reveal that the respondent
before this Court has preferred an application under
Sections 7, 10 and 25 of the Guardians and Wards Act,
1890 r/w section 6 (a) of the Hindu Minority and
Guardianship Act, 1956 claiming custody of minor child
namely Anshika, aged about five years and the present
appellant was proceeded ex parte and there is no dispute
in respect of the aforesaid averments. Thereafter, the
present appellant preferred an application under Order 9
Rule 13 of the Code of Civil Procedure before the same
Court on 13.03.2018 and by a detailed and exhaustive
order dated 01.05.2018, the trial Court has rejected the
application stating that no sufficient cause was shown by
the present appellant while filing the application under
Order 9 Rule 13 of the Code of Civil Procedure.

There is a delay of 157 days in filing the present
appeal. An attempt has been made to explain the delay
while filing I.A. No.6386/2018, which is an application
under Section 5 of the Limitation Act for condonation of
F.A. No.1777/2018 2

delay and it has been stated that because an application
was preferred under Order 9 Rule 13 of the Code of Civil
Procedure, the delay has taken place.

After hearing learned counsel for the parties, I.A.
No.6386/2018 stands allowed. The delay in filing the
appeal stands condoned.

Learned counsel for the respondent has argued
before this Court that present appeal is not maintainable
and his contention is that now the only remedy, after
dismissal of the application under Order 9 Rule 13 of the
Code of Civil Procedure, is to prefer an appeal under
Order 43 Rule 1 of the Code of Civil Procedure.

To bolster his submission, he has placed reliance
upon a judgment delivered by Hon’ble the Supreme Court
in the case of Neerja Realtors Pvt. Ltd. v/s Janglu
(dead) through L.R. reported in 2018 (3) M.P.L.J.
Paragraph – 16 of the aforesaid judgment reads as under:-

“16. In Bhanu Kumar Jain v Archana Kumar, 2005
(3) M.P.L.J. (S.C.) (2005) 1 SCC 787 a Bench of
three Judges of this Court has held that :

“An appeal against an ex parte decree in
terms of Section 96(2) of the Code could be
filed on the following grounds:

(i) the materials on record brought on
record in the ex parte proceedings in the suit
by the plaintiff would not entail a decree in
his favour; and (2005) 1 SCC 787

(ii) the suit could not have been posted
for ex parte hearing.” A defendant against
whom an ex-parte decree is passed has two
options: The first is to file an appeal. The
second is to file an application under Order
IX Rule.

A defendant can take recourse to both the
proceedings simultaneously. The right of appeal is
F.A. No.1777/2018 3

not taken away by filing an application under Order
IX Rule 13. But if the appeal is dismissed as a result
of which the ex-parte decree merges with the order of
the Appellate Court, a petition under Order IX Rule
13 would not be maintainable. When an application
under Order IX Rule 13 is dismissed, the remedy of
the defendant is under Order XLIII Rule 1. However,
once such an appeal is dismissed, the same contention
cannot be raised in a first appeal under Section 96.
The three Judge bench decision in Bhanu Kumar Jain
has been followed by another bench of three Judges
in Rabindra Singh v Financial Commissioner,
Cooperation, Punjab2 and by a two Judge bench in
Mahesh Yadav v Rajeshwar Singh3. In the present
case, the original defendant chose a remedy of first
appeal under Section 96 and was able to establish
before the High Court, adequate grounds for setting
aside the judgment and decree.”

In light of the aforesaid judgment, once the
present appellant has preferred an application under
Order 9 Rule 13 of the Code of Civil Procedure, now the
only remedy available to the present appellant is to prefer
an appeal under Order 43 Rule 1 of the Code of Civil
Procedure.

Resultantly, the admission is declined with liberty
to the present appellant to prefer an appeal under Order
43 Rule 1 of the Code of Civil Procedure.

Certified copy, as per rules.

(S.C. SHARMA) (VIRENDER SINGH)
JUDGE JUDGE

Ravi
Digitally signed by Ravi Prakash
Date: 2019.03.15 17:45:25 +05’30’

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