Order 9 Rule 9 of the CPC applies to proceedings under the Hindu Marriage Act, 1955, and a petition for divorce is barred if the petitioner did not get his original application for judicial separation restored.

1. The only question which calls for decision in this petition for revision of the order of the Court of Shri Charan Singh Tiwana, District Judge, Chandigarh, dated 14.01.1977, is whether or not the provisions of R. 9 of O. 9 of the Civil P. C. are applicable to applications for Judicial separation or divorce, etc. filed under the Hindu Marriage Act (25 of 1955) (hereinafter called the Act).

2. The relevant facts giving rise to this petition are not in dispute. The petitioner was married to the respondent. On 4.03.1976, the respondent filed an application against the petitioner for judicial separation under S. 10 of the Act on the ground that she had deserted the respondent on 11.11.1973, that is for a continuous period of not less than two years preceding the presentation of the petition. That application was dismissed by the Court in default of appearance of the respondent on 3.06.1976. The petitioner was present on that day and the dismissal was ordered under R. 8 of O. 9 of the Code. Soon thereafter the respondent filed his present application against the petitioner for divorce under S. 13 of the Act. The petition for divorce is practically a verbatim copy of the earlier petition for Judicial separation. The solitary ground on which divorce has been claimed is again the same allegation of desertion. While contesting the respondent s claim for divorce, the petitioner took up a preliminary objection to the effect that the petition for divorce is liable to be dismissed under Order 9 Rule 9 of the Code as the respondent did not get his original application for judicial separation restored which he could have amended after the coming into force of the Marriage Laws (Amendment) Act (68 of 1976) so as to claim therein a decree for divorce which could be claimed in a pending case after the coming into force of the amending Act. This plea of the petitioner was put by the learned District Judge into the following preliminary issue:-

"Whether the petition is barred under O. 9 R. 9 C. P. C.?"

3. By his order under revision the learned District Judge has held that the present case is not such in which the provisions of O. 9 R. 9 can be applied as it would cause real hardship to the respondent if the rigour of that rule is made applicable to the case.

4. I am unable to conceive of a situation in which a particular rule of procedure may be applied to one case and not to another case at the discretion of the Court depending on the circumstances of a given case. If R. 9 of O. 9 applies to proceeding under the Act it must apply to all cases and vice versa. Section 21 of the Act states that subject to the other provisions contained in the Act and to such rules as the High Court may make in that behalf all proceedings under the Act "shall be regulated, as far as may be, by the Civil P. C. 1908. No other provision in the Act deals with dismissals of proceedings in default or their restoration or the effect of non-restoration thereof. Nor does any rule contained in the Hindu Marriage (Punjab) Rules, 1956, framed by the High Court deal with this matter. According to the petitioner there is no escape from applying the provisions of O. 9 R. 9 of the Code by operation of Section 21. Mr. O. P. Ahluwalia, learned counsel for the respondent (the husband) has contended on the other hand that discretion is given to the Court to apply or not to apply any particular provision of the Code to proceedings under the Act by the words "as far as may be" occuring in S. 21. I am unable to agree with him in this respect. The expression "as far as may be" in the context to which it is used in S. 21 excludes the applicability of only those provisions of the Code which cannot in the nature of things apply to proceedings under the Act. This expression (as far as may be) has reference to different provisions of the Code and merely means that all those provisions of the Code shall apply to the proceedings under the Act which are neither inconsistent with any pro