The legal principle established is that sufficient cause for absence can be proven by the party seeking to set aside an ex-parte decree, and subsequent marriage does not render the application infructuous without proper proof.

D.M. Dharmadhikari, J.

1. This revision under Section 115 of the Code of Civil Procedure by the applicant/husband is directed against the order dt. 27/6/1986 of the matrimonial Court setting aside the ex-parte decree of divorce passed against the wife in Civil Suit No. 3-A of 1980.

2. The ex-parte decree of divorce was granted in favour of the husband on 4.10.1980. Earlier the case was fixed before the Court 27.9.1980 and the case was adjourned without objection, on the request of the Counsel for the wife. The case was adjourned to 1.10.80 for evidence. On the date of evidence the wife as also her Counsel were absent. The Court, therefore, preceded ex.parte by examining the husband in witness box, hearing the arguments and fixing the case for judgment on 4.10.80.

3. An application for setting aside the ex-parte decree of divorce was filed on 24.10.1980 stating that the wife being absent on 27.9.80 had no knowledge of the subsequent date, she tried to contact her Counsel late Shri Hirak Bhattacbarya who had gone to Jabalpur for some case and for a period of fortnight, even on his return, he could not be contacted as he had fallen seriously ill and the relations of late Shri Hirak Bhattacharya did not permit the non-applicant/wife to meet him. The Counsel later died. Accepting the above case of the wife as constituting sufficient case, the Court set aside the ex-parte decree of divorce order dt. 27.6.86, impugned in this revision.

4. The applicant/husband had opposed the application for setting aside the ex parte decree, firstly, on the ground that there did not exsist any sufficient cause and it was sheer negligence on the part of the non-applicant/ wife and her Counsel in not attending the Court on the date fixed for evidence, i.e. 1.10.1980. Secondly, the application was opposed on the ground that it had been rendered infructuous as the husband after obtaining ex-parte decree of divorce, contracted a second marriage on 23.11.1980 with one Preeti Shrivastava and it was a valid marriage in accordance with Section 15 of the Hindu Marriage Act. The matrimonial Court did not accept any of the grounds urged by the husband. The learned lower Court held that the facts proved by the wife in the witness-box made out a sufficient cause in her favour the setting aside the ex-parte decree. It was also held that in the absence of date of proof of second marriage, the application for setting aside the ex-parte decree was not rendered infructuous as a result of the so-called second marriage. The Court therefore held that the decision of this Court report in A.I.R. 1965 M.P. 194, Mohan Murari v. Kusum Kumari does not help the contentions raised by the husband.

5. In the present revision by the husband the first submission of the learned Counsel for the applicant is that the lower Court erred in holding that the wife had made out sufficient cause for setting aside the ex-parte decree. My attention is invited to the following observations of the lower Court in para 6 of the order:

"It is true that the explanation in her cross-examination about the preparation and filing of affidavit is not convincing but that itself does not disprove the facts contained in the present petition and stated on oath by the applicant in this Court. The non-applicant / husband has not dared to controvert these facts. He has avoided to submit himself to cross-examination. Thus, the applicant has been able to establish the cause of her own and her Counsel's absence on 1.10.1980."

On the basis of the observations made above by the lower Court, the Counsel for the husband submits that the statement of the wife was not found to be trustworthy in the matter of preparation and filing of the affidavit and therefore the Court could not have believed her cause as sufficient cause only on the ground that the husband did not enter the witness-box. It is argued that facts stated for proving sufficient cause were not within the personal knowledge of the applicant as he was not ex