Flora Bose Vs. Suprotik Bose - Court Judgment

Excerpt:
the case dealt with the decision of the single judge to dismiss the appeal in liming, which was filed in a matter related to dissolution of marriage, within the provisions of section 13(1)(ia), (ib) and 28 of the hindu marriage act, 1955 - the appeal was dismissed on the fixed date of hearing and the same was done due to absence of caveater and records - it was held that the first appeal was a matter of right and the same could not have been dismissed in liming without assigning any reasons - thus the appeal was remitted back to the single judge - order1. the letters patent appeal arises out of an order dated 9th july, 1997 passed by the learned single judge in fao no. 163/97 whereby and whereunder the appeal preferred by the appellant herein had been dismissed in liming. by reason of the said appeal the appellant herein had questioned the judgment and order of the additional district judge, delhi in hcm no. 680/92 dismissing an application for dissolution of marriage filed under section 13-1 (ia) and (ib) of the hindu marriage act. 2. a first appeal is a matter of right. on the date fixed for hearing of the said appeal even the caveator was not present. learned single judge had no opportunity to go through the materials on record, particularly the evidence adduced by the parties in the absence of records of the learned trial court. in the afore-mentioned situation, we are of the opinion that the said appeal ought not to have been dismissed in liming. further more, no reason has been assigned in support of the said order. for the reasons afore-mentioned, this impugned judgment cannot be sustained and is set aside accordingly. appeal is remitted back to appropriate bench for consideration of the matter on merits. the parties to appear before the appropriate bench on 9th august, 2002. 3. having regard to the fact that the first appeal was instituted in 1997, we request the appropriate bench to consider the desirability of disposing of the appeal as expeditious as possible and preferably within a period of three months from the date of first hearing.

Judgment:
ORDER

1. The letters patent appeal arises out of an order dated 9th July, 1997 passed by the learned Single Judge in FAO No. 163/97 whereby and whereunder the appeal preferred by the appellant herein had been dismissed in liming. By reason of the said appeal the appellant herein had questioned the judgment and order of the Additional District Judge, Delhi in HCM No. 680/92 dismissing an application for dissolution of marriage filed under Section 13-1 (ia) and (ib) of the Hindu Marriage Act.

2. A first appeal is a matter of right. On the date fixed for hearing of the said appeal even the caveator was not present. Learned Single Judge had no opportunity to go through the materials on record, particularly the evidence adduced by the parties in the absence of records of the learned Trial Court. In the afore-mentioned situation, we are of the opinion that the said appeal ought not to have been dismissed in liming. Further more, no reason has been assigned in support of the said order. For the reasons afore-mentioned, this impugned judgment cannot be sustained and is set aside accordingly. Appeal is remitted back to appropriate Bench for consideration of the matter on merits. The parties to appear before the appropriate Bench on 9th August, 2002.

3. Having regard to the fact that the first appeal was instituted in 1997, we request the appropriate Bench to consider the desirability of disposing of the appeal as expeditious as possible and preferably within a period of three months from the date of first hearing.