Case Note & Summary
The petitioner, Smt. Bhumika Ajgaonkar, was the defendant in a matrimonial petition filed by her husband, Ravi Ajgaonkar, under Article 4(4) of the Law of Divorce before the CJSD, Vasco-da-Gama. She was served with summons and appeared through counsel on 14/01/2009, seeking time. The suit was adjourned for written statement on 4/02/2009, but she did not appear. The suit was then adjourned to 18/02/2009, and due to her absence, the court ordered the suit to proceed ex-parte. On 20/04/2009, the defendant appeared and filed an application under Order 9 Rule 7 read with Section 151 CPC to set aside the ex-parte order, along with a written statement. She contended that she resided far away in Belgaum and that no hardship would be caused to the plaintiff. The trial court dismissed her application. The High Court, in this writ petition, examined the application of Order 9 Rule 7 CPC, which allows a defendant who appears on an adjourned hearing date and assigns good cause for previous non-appearance to be heard. The court noted that the defendant had appeared on 20/04/2009, which was an adjourned hearing date, and had assigned good cause (residing far away). The court held that the trial court ought to have allowed the application liberally, especially in matrimonial proceedings, and set aside the ex-parte order. The impugned order was quashed, and the trial court was directed to proceed with the suit in accordance with law.
Headnote
A) Civil Procedure Code, 1908 - Order 9 Rule 7 - Setting aside ex-parte order - Good cause - The defendant appeared on the adjourned hearing date and filed an application to set aside the ex-parte order, stating she resided far away. The court held that the trial court ought to have allowed the application liberally, especially in matrimonial matters, and set aside the ex-parte order. (Paras 2-8)
Issue of Consideration
Whether the trial court erred in dismissing the defendant's application to set aside the ex-parte order dated 18/02/2009, despite the defendant appearing on the adjourned hearing date and assigning good cause for previous non-appearance.
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 22/07/2009, and directed the trial court to proceed with the suit in accordance with law, setting aside the ex-parte order.
Law Points
- Order 9 Rule 7 CPC
- ex-parte order
- setting aside ex-parte
- good cause
- liberal approach
- matrimonial proceedings
