JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. The instant appeal is against the judgment and decree dated 05.11.2019 passed in Miss Civil Suit No. 02/18 by the Learned Family Camp Court, Katghora, District Korba wherein application filed under Order 9 Rule 13 of CPC was allowed.

2. The brief facts of the case are that:-

- The appellant/ husband filed an application for restitution of conjugal rights against the respondent/ wife wherein the respondent initially appeared and thereafter she failed to appear, consequently ex parte order was passed on 08.05.2017 in Civil Suit No. 156A/ 2015.

- Subsequently, respondent/ wife filed an application for setting aside the order dated 08.05.2017, on the ground that since she was staying at Bhopal since 2016 and when she came to know of the fact that ex parte judgment and decree has been passed, she immediately filed an application to set aside the ex parte judgment and decree dated 08.05.2017.

- Learned Family court allowed the application under order 9 Rule 13 of CPC.

Hence this appeal.

3. Learned counsel for the appellant would vehemently submit that the wife was making personal appearance throughout in the original case bearing Civil Suit No. 156A/2015 and all of a sudden she stopped appearing, therefore, the learned Family Court did not have any option except to proceed ex parte. Accordingly, the ex parte proceedings were drawn. He would further submit that thereafter when the application for setting aside the ex parte judgment and decree was filed the wife/ respondent appeared and admitted the fact that she came to know about execution proceeding, therefore, there was a deliberate non-appearance and no valid reasons were assigned by her for her absence. He would further submit that only casual submission and reasons were assigned which was beyond the records and against the existing facts and the learned family court failed to appreciate this fact and set aside the judgment and decree dated 08.05.2017.

4. Per contra, learned counsel for the respondent would submit that the order passed by the learned court below is well merited and it do not call for any interference.

5. We have heard learned counsel for the parties. In order to appreciate the rival submissions, the original civil suit which records the proceeding of the ex parte order bearing No. 156A of 2015 was perused.

6. Perusal of the order sheet would reveal that husband had filed an application for restitution of conjugal rights before the family court in the month of September, 2015. Wherein, after notice the wife appeared in person on 08.10.2015, thereafter the proceeding on different dates were drawn and order sheets shows that efforts for reconciliation has also been failed. It further shows that case was adjourned from time to time and finally the case was fixed for argument on I.A. No. 01. Records show that I.A. No. 01 was filed by the wife claiming amount of Rs. 2,300/- for expenses to be incurred for traveling from Bhopal to family court Katghora. The order sheets filed further shows that on 06.02.2017, the counsel for the respondent/ wife filed an application for adjournment which was dismissed and without any order on I.A. No. 01, the ex parte proceeding was drawn and the appellant/ husband was directed to keep the witnesses present.

7. The genesis of the order on which the ex parte proceeding was drawn would show that the case was fixed for argument on I.A. No. 01. Thereafter, when the subsequent date was given for hearing on 06.02.2017, the order sheet of the trial court was silent about the the next date as the date remains blank except the month and the year. The order sheets further shows that the case was taken up on 06.03.2017 and thereafter the next date was given on 09.03.2017 and eventually on 19.04.2017 statement of the witnesses were recorded and on 08.05.2017 after hearing the arguments, the case was closed for judgment.

8. It is settled proposition of law that when the court proceeds ex parte under Order 9 Rule 6 of CPC,