Hindu Marriage Act, 1955
Section 13(1)(a) and Order 9 Rule 4 of CPC—Dismissal of petition in default—Application of restoration of suit dismissed on ground that incorrect averments have been made in the application for restoration—When the petition was dismissed in default, it was only at the stage of service of the respondent and service has not been affected—In terms of Order 9 Rule 4 CPC, if a suit is dismissed under Rule 2 or Rule 3 of Order 9, plaintiff, subject to law of limitation, can bring a fresh suit or file and application seeking setting aside of order of dismissal—Respondent is yet to be served and appellant was entitled to file a fresh suit as petition for obtaining divorce and so long as parties remain married, the cause of action to seek divorce continues to survive and as such a petition seeking divorce would even today be within limitation—Sufficient explanation given by appellant in her application under Order 9 Rule 4 of CPC explaining the circumstances under which the counsel failed to appear before the court—Explanation amounts to sufficient cause for non-appearance on the said date—Petition is restored in its original number on the record of the Family Court. [Civil Procedure Code, 1908, Order 9 Rule 4]
[Paras 4 to 10]
Decision : Appeal allowed