JUDGMENT

Raghvendra Singh Chauhan, CJ. - The appellant has challenged the legality of the order, dated 19.12.2020, passed by the learned Family Court, Haridwar, whereby the learned Family Court has dismissed the appellant's application for restoring the divorce suit.

2. Briefly, the facts of the case are that on 17.09.2015, the appellant-husband, Mr. Yogesh Singh, had filed a divorce suit under Section 13 of the Hindu Marriage Act against the respondent-wife, Ms. Sangeeta Chauhan. By order dated 18.09.2018, the issues were framed by the learned Family Court. On 18.09.2017, the appellant had submitted his affidavit which was treated as examination-in-chief. Therefore, he was directed to appear for cross-examination on 06.10.2017. However, the appellant did not appear for cross-examination on two occasions, namely on 19.01.2018 and 24.04.2018. On 30.05.2018, the matter was adjourned for 13.07.2018. On 13.07.2018, since the appellant did not appear before the Court, the learned Family Court dismissed the case for non-prosecution.

3. Aggrieved by the said order dated 13.07.2018, initially, the appellant filed an appeal before this Court. However, by order dated 03.12.2020, a learned Coordinate Bench directed the appellant to file a restoration application before the learned Family Court. Consequently, the said application was filed. However, by the impugned order dated 19.12.2020, the said application has been dismissed by the learned Family Court. Hence, this appeal against the order dated 19.12.2020.

4. Mr. Aditya Singh, the learned counsel for the appellant has raised the following contentions before this Court:-

Firstly, the learned Family Court is unjustified in claiming that the appellant has sought numerous adjournments. In fact, the appellant has sought adjournment only on four occasions, namely on 28.06.2017, 27.07.2017, 19.01.2018, and 24.04.2018.

Secondly, on 13.07.2018, there were two cases of the appellant pending before the learned Family Court: (i) The case filed by the respondent under Section 125 of the Code of Criminal Procedure; (ii) the divorce suit filed by the appellant. While the former case was taken up in the morning session, the latter case was taken up in the afternoon session. According to the learned counsel, the appellant was present before the learned Family Court in the morning session. However, while he was in the Court he was informed that his mother fell ill. Therefore, he could not attend the divorce suit in the afternoon session.

Thirdly, the reasoning given by the learned Family Court that the appellant has not paid the amount under Section 24 of the Hindu Marriage Act, and since he has not even bothered to pay the cost imposed by the Court in the divorce suit, the appellant is not entitled to have his divorce suit restored to its original number. According to the learned counsel, merely because the amount of expenses has not been paid by the appellant, he cannot be non-suited. Moreover, according to the learned counsel, the appellant has been paying the amount of expenses to the respondent. Therefore, according to the learned counsel, the impugned order dated 19.12.2020 deserves to be set-aside by this Court.

5. Heard the learned counsel for the appellant, examined the order-sheets of the learned Family Court, as submitted by the appellant, and perused the impugned order.

6. Admittedly, the divorce suit was filed on 17.09.2015. After framing of the issues on 11.08.2017, and after the submission of the affidavit by the appellant, on 18.09.2017, the case was listed repeatedly for cross-examination of the appellant. Admittedly, on 19.01.2018, since the appellant was absent, he was imposed with the cost of Rs.250/- and the last opportunity to the appellant to subject himself for cross-examination was given by the learned Family Court on the said date. Despite the fact that the last opportunity was given, inspite of the fact that the cost had been imposed, again on 24.04.2018, the appellant was absent from