The main legal point established is the importance of considering the maintainability of applications before granting interim orders and the need to expedite pending cases without disturbing interim orders.

JUDGMENT

Subject matter of challenge in this case is against an order, dated 22nd December, 2021, passed by Learned Additional District Judge, Re- Designated Court, Paschim Medinipore, in Judicial Misc. Case No. 159 of 2021 arising out of Matrimonial Suit No. 342 of 2020, granting stay of operation of the order, dated 5th December, 2020, by which ex parte decree of divorce was granted.

Admittedly, a Matrimonial Suit for divorce was filed by petitioner/husband on 15th September, 2020, taking the grounds available under Section 13 of the Hindu Marriage Act. The ex parte decree of divorce, however, was passed on 5th December, 2020.

Service upon the wife/opposite party is a disputed question of fact and law in this case, since service of summons, said to have been served upon the wife/opposite party, returned with a note of refusal, which is grossly under challenge in this case.

Stay of operation of the order, granting ex parte decree is under challenge on three-fold grounds. Firstly, the order impugned granting stay of ex parte decree of divorce was passed without affording an opportunity of hearing to the petitioner/husband. The second ground was relatable to nonmaintainability of an application filed by the opposite party/wife under Order 9 Rule 13 of C.P.C., so as to assail the ex parte order, granting divorce in favour of the petitioner in a case, when the petitioner/husband already got himself re-married doing strict observance of the provisions of law. The third ground pertained to non-consideration of an application under Section 5 of the Limitation Act, praying for condonation of delay in connection with application under Order 9 Rule 13 C.P.C., registered as Judicial Misc. Case No. 159 of 2021, while granting an order of stay of operation of the order.

Mr. Anirudhha Chatterjee, learned advocate appearing for the petitioner/husband, while assailing the impugned order, submitted that when application under Order 9 Rule 13 C.P.C. had been filed by the opposite party/wife long after the statutory period of limitation, provided under the Act, and when there had been an application filed under Section 5 of the Limitation Act, praying for condonation of delay, the court below ought not to have granted stay of operation of order, granting ex parte decree of divorce, without making condonation of delay, and without extending an opportunity of hearing to petitioner/husband, who got himself re-married for the second time after the said decree of divorce dated 5th December, 2020, upon duly complying with the provisions of Section 15 of the Hindu Marriage Act, 1955.

Mr. Chatterjee contended that service had been effected upon the opposite party/wife in both ways i.e. through court as well as through postal service taking order of the court, and in both the ways, the service returned with a note to have been refused by wife/opposite party.

Upon taking note of such refusal of service, the court below had no other alternative, but to set the matter for ex parte hearing, as the opportunity to ensure appearance for on and behalf of the opposite party, could not be utilized.

The refusal of service, according to Mr. Chatterjee, would be treated as good service, and there left nothing to doubt the service already effected upon the opposite party/wife.

Mr. Chatterjee further submitted that the second marriage of the petitioner having held in compliance with the provisions of Hindu Marriage Act, 1955, the pending proceedings relatable to Order 9 Rule 13 C.P.C. would not be maintainable, and the Judicial Misc. Case under Order 9 Rule 13 C.P.C. being itself not maintainable under the law, the stay petition could not have been entertained by the court below, granting stay of operation of decree of divorce dated 5th December, 2020.

Reliance was placed by Mr. Chatterjee on a decision reported in Krishnaveni Rai Vs. Pankaj Rai & Anr. reported in (2020) 11 SCC 253, to submit that once a party had contracted a second marriage, it would not be in the interest of