Judgment:
R.D. Vyas, J.
1. This Appeal is directed against the Order dated 23.6.1994, by the learned IXth Additional Judge to the Court of District Judge, Indore in MJC No. 2/91, thereby the learned Judge was pleased to reject the application under Order 9, Rule 13.
2. Facts giving rise to this appeal are that a suit was filed by the appellant, of which returnable date was fixed as 14.10.1989.The matter could not be taken on that date as the learned Presiding Officer was on leave. The next date fixed also was such on which date the learned Presiding Officer was still on leave. There was no certification of the service of notice by the Court and a decree came to be passed after taking evidence of the respondent ex-parte.
3. It is submitted by Mr. Gangarade that the approach of the learned Judge is not at all judicious and proper. In such circumstances of the case, he also argued that more particularly in a matrimonial matter, where it is expected of the Court to try to settle the matter between the parties, the Court here has taken a somer sault and slip-shod approach by giving a decree, that too ex-parte.
4. The explanation of the appellant is that she did not know about tile proceeding, and she came to know only for the first time when a reply to the suit was filed by her for restitution of conjugal rights. The respondent filed an application to dismiss the suit on the ground of prior decree.
In such circumstances, Mr. Gangarade requests that in any case, the lower Court ought to have granted application under Order 9 Rule 13. Mr. Jain opposes tooth and nail. He argued strongly that the order of the lower Court is absolutely proper as there is a callous negligence on the part of the appellant.
5. Looking to the facts and circumstances of the case, more particularly, this being a matter under matrimonial causes, it is just and proper to set aside the decree and allow the application under Order 9 Rule 13 and remand the matter back to the Trial Court for permitting the appellant to file her written statement, and proceed thereafter according to law.
6. The evidence taken may be considered after hearing the appellant.
Parties may appear before the Trial Court on 26th March, 1997.
Appeal is accordingly allowed with costs.