Order 9 Rule 13 of the Code of Civil Procedure should be construed liberally to ensure that parties are not deprived of the opportunity to be heard, especially in matrimonial matters involving the dissolution of marriage.

A.R. Tiwari, J.

1. This miscellaneous appeal presented under Order 43 Rule (d) of the Code of Civil Procedure (for short, 'the Code') is directed against the order dated 10-8-90 rendered by I Additional Judge to the Court of District Judge, Indore in Civil Misc. Case No. 10/86 thereby dismissing the application of the applicant under Order 9 Rule 13 and Section 15 of the Code.

2. Briefly stated, the facts of the case are that NA/husband instituted the petition under Section 13 of the Hindu Marriage Act for dissolution of marriage by decree of divorce. This case was registered as Hindu Marriage Case No. 223/84. On 1-5-85, the case was listed for making an endeavour to bring about re-conciliation between the parties. It appears that the applicant did not remain present on 1-5-85 and as such the case was postponed to 2-5-85 for the purpose of presentation of the written statement as was the date fixed earlier. On 2-5-1985, the applicant remained absent as a result of which the order was passed that the case shall be heard ex-parte against the applicant. On 3-5-1985 an ex-parte decree dissolving the marriage was passed. The applicant contended that she was prevented by sufficient cause from appearing in the case on 2-5-85 when it was called on for hearing.

3. The grounds asserted were that she was ill and she had no knowledge of the date of 2-5-1985. On knowing from her Counsel that an ex-parte decree has been passed, the applicant presented the aforesaid application for setting aside the ex-parte decree alongwith the application under Section 5 of the Limitation Act seeking condonation of delay in initiating such proceedings. This application was opposed by the other side The Trial Court concluded that the application was within time but dismissed the same on the ground that no sufficient cause for non-appearance was made out. Aggrieved by this order, the applicant has preferred this appeal.

4. I have heard Shri Shastri learned Counsel for the appellant and Shri V.K. Pathan learned Counsel for respondent. I have perused the record.

5. The application, as noted, was moved under Order 9 Rule 13 and Section 151 of the Code, contending that the applicant was prevented by sufficient cause from appearing on 2-5-85 when the suit was called on for hearing and praying that the order setting aside the ex-parte decree be passed.

6 An ex-parte decree of divorce was passed under Section 13 of the Hindu Marriage Act in HM Case No. 223/84 on 3-5-85. The course of this litigation was that it was slated for reconciliation on 1-5 85 and on failure of endeavour towards reconciliation, for reply on 2-5-85. There seemed to be some error in writing about date. On 2-5-85, the order was passed that the case will be heard ex-parte. On acquisition of knowledge of ex-parte order, the applicant filed the application on 1-8-85 for setting aside the same. The other side resisted the application. The Court framed two issues--

(a) Whether the application was within time ?

(b) Whether there was sufficient cause for setting aside the decree ?

7. The Court below answered the issue (a) in the affirmative and held the application within time. The issue (b) was, however decided against the applicant resulting in dismissal of the application. Aggrieved by this order, this appeal was filed and aggrieved by the finding on issue (a) the respondent submitted cross-objection.

8. The Court below considered the facts in great detail and held the application as within time. I find that the facts have been correctly appreciated and law has been properly applied. This conclusion is no firm foundation and is not liable to be dislodged or demolished. This is a finding of fact. AIR 1986 SC 509--Dudh Nath Pandey v. Suresh Chandra Bhatta Sali, is pertinent. Accordingly the finding is upheld and the cross-objection is dismissed.

9. As regards finding on issue No. (b), it is noticed that the decree was passed just on the next day. The applicant was represented by the Counsels. The seriou