Legal proceedings require parties to ensure their representation; negligence in appearance does not obligate courts to issue new notices.

JUDGMENT :

ARINDAM SINHA, J.

1. Mr. Jena, learned advoc ate appears on behalf of appellant, wife in the marriage annulled by ex-parte judgment dated 7th April, 2023 made by the Family Court. He had earlier submitted, the appeal is directed against order dated 16th January, 2024 of the Family Court, refusing to admit the application for setting aside the ex parte judgment. Though, his client was precluded from filing written statement, it cannot stand in the way of relief under rule 13 in order IX, Code of Civil Procedure, 1908. On subsequent occasion he had submitted that not only was his client precluded from filing written statement but also, when learned advocate engaged by her had failed to appear, the Family Court ought to have issued notice to his client. He had relied on judgment dated 2nd December, 1997 of the Supreme Court in Malkiat Singh v. Joginder Singh , reported in AIR 1998 SC 258 .

2. At this juncture, we reproduce below paragraphs 2 and 3 from our order dated 18th April, 2024.

“2. Adjournment is granted for Mr. Jena to show us provision in law requiring Court to issue fresh notice/summons to a party, who had entered appearance through learned advocate but said advocate did not appear/withdrew.

3. On query from Court Mr. Jena submits, valuable articles were given as gifts in the marriage. Mr. Mohanty, learned advocate appears on behalf of respondent-husband and submits, he will take instruction regarding gifts.”

3. The appeal was subsequently heard on 9th May, 2024. Paragraph-2 from our order made that day is reproduced below.

“2. We have compared the lists handed up. Respondent-husband admits to have received a chain, a bracelet and seven rings. More or less it matches with the list handed up on behalf of appellant-wife, on three rings short. The jewellery items mentioned, as given for the bride, must be demonstrated from the evidence as had been made over to respondent. Apart, there are an almirah, alana and mattress etc.”

Today, Mr. Mohanty, learned advocate appearing on behalf of respondent hands up two receipts both dated 2nd July, 2024 to demonstrate return of articles as mentioned in above extracted paragraph-2 in order dated 19th May, 2024.

4. Mr. Jena submits, there are other articles not returned. He submits further, there could not have been annulment of the marriage on finding that his client, wife in the marriage, was impotent. We reproduce below section 12(1)(a) in HINDU MARRIAGE ACT , 1955.

“12(1) .... .... ..... (a) That the marriage has not been consummated owing to the impotence of the respondent;”

The provision is gender neutral. It is in that light the allegation was made, to be found true by the Family Court on rendering said ex parte judgment. Appellant having had entered appearance and thereafter failed and neglected to file written statement within prescribed time as extended, stood precluded.

5. In Malkiat Singh (supra) the Supreme Court found, appellants before it had engaged counsel to defend them in the civil suit. The counsel had pleaded “no instructions” but the Court did not issue any notice to the appellants, who were not present on the date when their counsel had so reported. The appellants only came to know, inter alia, about the ex parte decree when they approached their counsel. It was within four days thereafter they filed application for setting aside the ex parte decree.

6. In this case, after appellant was precluded from filing written statement, the learned advocate engaged by her did not appear. The ex parte judgment was made on 7th April, 2023 and the application for setting it aside, on 9th January, 2024. It contained two paragraphs. Reproduced below is paragraph-2 from the app