JUDGMENT :

1. Heard Sri Srijan Mahrotra, learned counsel for the applicant-defendant-appellant / wife and Sri Anil Sharma, learned Senior Advocate assisted by P.K. Rai, learned counsel for the plaintiff-respondent / husband.

2. This appeal has been filed praying to set aside the judgement and order dated 11.04.2008 in Misc. Case No. 105 of 1999 (Smt. Usha Kiran Rai vs. Umesh Chandra Rai and others) arising from H.M. Petition No. 361 of 1998 (Umesh Chandra Rai vs. Smt. Usha Kiran Rai) passed by the Principal Judge, Family Court, Varanasi, whereby the application 3-C under Order IX Rule 13 of C.P.C. filed by the applicant-appellant / wife for recalling of the judgement and decree passed in H.M. Petition No. 361 of 1998 dated 31.05.1999, has been rejected.

3. Original record of the court below relating to afore-noted cases have been received and notified in this Court on 14.12.2018 but the parties have not yet filed paper book.

4. Both the parties have perused the record of the court below and with the consent of learned counsel for the parties, this appeal is being finally heard without paper book.

Facts :

5. Briefly stated the facts of the present case are that the appellant herein and the deceased-respondent Umesh Chandra Rai were married on 22.04.1984 according to Hindu rites and rituals at Varanasi. No children was born to them from their wedlock. The applicant / appellant herein was lecturer and subsequently promoted as reader / professor in the department of Management Studies, B.H.U., Varanasi.

6. Allegedly, the Matrimonial Petition No. 361 of 1998 (Umesh Chandra Rai vs. Smt. Usha Kiran Rai) under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act, 1955) was filed on 03.11.1998 by the deceased-plaintiff / husband Umesh Chandra Rai through his counsel Sri M.L. Rai Advocate jointly with the counsel Sri Prem Shankar Pandey as alleged counsel for the applicant-appellant, namely, Usha Kiran Rai. The aforesaid application bears signature of the deceased-plaintiff-respondent/husband and also the alleged signature of the applicant-appellant. The aforesaid application was not supported by any affidavit. These facts are evident from the original record of the court below.

7. As per order sheet entry dated 03.11.1998, the Presiding Officer directed the case to be presented after six months. As per order sheet entry dated 03.05.1999, the applicant-appellant / wife was not present but the deceased-plaintiff-respondent / husband was present. As per order sheet entry dated 12.05.1999, a stay application 8-C was filed which was directed to be presented on 04.08.1999 for further order. Perusal of the alleged application 8-C dated 12.05.1999 shows that it is an adjournment application and not a stay application. As per order sheet entry dated 15.05.1999 an application to expedite the case was filed on which the Presiding Officer passed the order as under :-

“None present. …..............

Put up on 18.05.1999.”

8. As per order sheet entry dated 18.05.1999, Presiding Officer was on leave and none was present, therefore, the next date was fixed for 04.08.1999. Thereafter, the last order sheet entry is dated 26.05.1999 in which it is mentioned that the application has been filed for early disposal of the case and therefore, it is ordered to put up on 31.05.1999.

Thereafter, there is no entry in the order sheet of the aforesaid case No. 361 of 1998.

9. However, the original record contains an order of the Judge Family Court, Varanasi dated 31.05.1999 which is reproduced below :-

^^fnukad% 31 ebZ] 1999 bZ0

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;kph mifLFkr gSA ;g ;kfpdk mes'k pUnz jk; rFkk Jherh Å"kk fdju jk; us la;qDr #i ls /kkjk&13 ch] fgUnw fookg vf/kfu;e ds varxZr fookg foPNsn gsrq fnukad 3-11-98 dks lafLFkr fd;k FkkA f}rh; ekslu ij fnukad 3-5-99 dks iqu% ÁLrqr gqbZA

i{kdkjksa ds mifLFkr u gksus ij 12-5-99] 15-5-99 rFkk 18-5-99 dks is'k gqvkA ÁR;fFkZuh U;k;ky; esa mifLFkr gqbZ vkSj fnukad 26-5-99 dks la;qDr #i ls ^10x* ÁkFkZuk i= ij iqu% fn;k x;k fd ;kph o Á