The court has the discretion to set aside a final order passed ex parte and allow the transfer of a case if convinced of the claim for transfer to be just and proper.

ORDER

1. The application for deletion of the names of Respondents 2 and 3 is rejected.

2. The above petition has been filed by the wife seeking for transfer of the petition filed as Matrimonial Case No. 210 of 2001 in the Court of Principal Judge. Family Court, Patna to Family Court at Ranchi. The said petition was filed by the respondent husband under Section 9 of the Hindu Marriage Act, 1956 seeking for restitution of conjugal rights. It may be noticed even at this stage that though an alternate relief is set down as being sought, that could not have been possibly granted or comprehended within the meaning of Section 9 of the Hindu Marriage Act, 1956 in the absence of any specific pleading or invoking the powers of the court under Section 13 of the Hindu Marriage Act.

3. Notice has been ordered by this Court on 13-12-2002. The respondent has entered appearance and consequently, contesting the claim for transfer by filing counter-affidavit.

4. Heard the learned counsel appearing on either side.

5. Mr Amarendera Sharan, the learned Senior Counsel appearing for the petitioner, while inviting our attention to a decision by this Court reported in Usha v. Palisetty Mohan Rao1 submits that notwithstanding an order in this case said to have been passed ex parte and said to be retained in the sealed cover, it is open to this Court to set aside the final order passed ex parte also once this Court is convinced of the claim for transfer to be just and proper and has to be allowed. The learned counsel for the respondent husband, though strenuously contended that the petitioner in this Court was well aware of the alternate relief sought for by the husband and, it is not given to the petitioner to make any grievance about the decree for divorce, if any, granted also.

6. On a careful consideration of the matter, we are of the view that the petitioner has made out sufficient grounds to justify the claim for transfer and on the facts and circumstances of the case, we are convinced of the necessity for transfer also. The ex parte order said to have been passed on 27-1-2003 granting divorce is hereby set aside and as No: 210 of 2001, pending on the file of the Principal Judge, Family Court, Patna shall stand transferred to the Family Court at Ranchi. The Family Court at Ranchi shall, on receipt of the papers, issue notice to both the parties and proceed with the matter afresh and dispose of the same in accordance with law.

7. The transfer petition is ordered on the above terms.