A.S. GADKARI, J.

The present Family Court Appeal arises out of the impugned order dated 24th October 2013 passed below Exhibit 1 in Civil Miscellaneous Application No.9 of 2013. The said Application No.9 of 2013 was filed by the wife, Respondent herein, under Order 9 Rule 13 of the Code of Civil Procedure for setting aside ex parte judgment and decree dated 6th March 2012 passed in Petition No.A-801 of 2011 which was filed by the Appellant herein for seeking divorce on the ground of cruelty as contemplated under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

2. The record discloses that the Appellant - husband had filed a Petition bearing No.A-801 of 2011 in the Family Court at Pune under Section 13(1)(i-a) of the Hindu Marriage Act as stated earlier. The learned Judge of the Family Court No.5, Pune in its judgment and order dated 6th March 2012 had observed that the Respondent – wife was duly served with the summons, but remained absent continuously and so the said petition proceeded ex parte against the Respondent - wife. The Learned Trial Court thereafter proceeded with the said case and was pleased to allow the said petition filed by the Appellant - husband thereby passing a decree of divorce by dissolving the marriage between the Appellant and the Respondent which was solemnized on 12th December 1994. By the said judgment and order dated 6th March 2012 the Trial Court was further pleased to direct the Respondent - wife to give access of son Ayush to the Appellant - husband on every Saturday from 6 p.m. till Sunday upto 7 p.m.

3. Being aggrieved by the said ex parte judgment and order dated 6th March 2012, the Respondent - wife filed the aforesaid Civil Miscellaneous Application No.9 of 2013 before the Family Court for setting aside the said ex parte judgment and order dated 6th March 2012. In the said application, the Respondent - wife has taken various grounds for setting aside the ex parte judgment and order passed by the Trial Court. After receipt of the summons of the said application, the Appellant - husband appeared in the said proceedings and filed his say to the application under Order 9 Rule 3 of the Code of Civil Procedure. The learned Trial Judge by its order dated 24th October 2013 after hearing the parties to the said application, was pleased to allow the said application which was filed under Order 9 Rule 13 of the Code of Civil Procedure and was further pleased to set aside the judgment and decree dated 6th March 2012 passed in Petition No. A- 801 of 2011 thereby restoring the said petition to the file.

4. Feeling aggrieved by the said order dated 24th October 2013 the Appellant - husband has preferred the present Family Court Appeal. It was contended on behalf of the Appellant that after filing of their say to the application under Order 9 Rule 13 of the Code of Civil Procedure, the learned Trial Court did not give an opportunity of hearing the matter at length and proceeded to pass the said order. With a view to overcome with the said grievance, we accorded an opportunity of being heard to the Appellant - husband and learned counsel for the Appellant - husband argued the matter at length. We have heard the parties to the present Appeal at length. The Learned Trial Judge in the impugned order has observed that the bailiff report on record shows that the summons was duly served on the Respondent - wife and based on the said bailiff report, ex parte order was passed. In her application for setting aside the ex parte order, the Respondent - wife has pleaded about the illness of her child and the various other reasons for her not appearing in the original petition. The learned Trial Court after finding that the reasons mentioned in her application to be justifiable, has set aside the ex parte judgment and decree passed in Petition No.A-801 of 2011.

5. After hearing learned counsel for the Appellant and the Respondent, we are of the considered opinion that after restoration of the original petition i.