The main legal point established in the judgment is that a party's reliance on their counsel's assurance and the counsel's absence due to a valid reason can constitute sufficient cause for non-appearance, justifying the setting aside of an ex parte judgment.

ORDER DEEPAK KUMAR AGARWAL, J. – Shri Ashish Saraswat, learned Counsel for appellant/wife.

Shri Madhu Sudan Shrivastava, learned Counsel for respondent/husband.

Appellant-wife has preferred this First Appeal u/S.19 of Family Courts Act, assailing the order dated 24-7-2015 passed by Principal Judge, Family Court Morena in Case No. 20/2014 (HMA) rejecting the application filed by her under Order 9, Rule 13 r/w section 151, CPC, seeking setting aside of ex parte judgment and decree dated 16-3-2011 passed by Third Additional District Judge, Morena in Case No. 03/2010 (HMA).

2. It is not in dispute that the appellant is the legally-wedded wife of the respondent. Their marriage was solemnized as per the Hindu rights and rituals in 1970 and they were having two sons and two daughters. Presently, the appellant is living separately from her husband/respondent.

3. It is the case of respondent that he had filed a divorce petition u/S. 13-A of the Hindu Marriage Act, 1955 [in short “HMA”] before Third Additional District Judge, Morena on 11-1-2010 and in absence of appellant/wife as well as her counsel, an ex parte judgment and decree was passed in favour of respondent/husband on 16-3-2011 and the marriage between the parties was dissolved. Being aggrieved by the same, appellant/wife filed a restoration application under Order 9, Rule 13 r/w section 151, CPC for setting aside of ex parte judgment and decree dated 16-3-2011, on the ground that her advocate Shri Vishnu Kumar Maheshwari had assured her that she is not required to come to the Court on each date and he will call her as and when required. During pendency of the case, the wife of her Advocate Shri Vishnu Maheshwari, suffered from cancer due to which, her Advocate Shri Maheshwari had to remain out of Morena for the purpose of treatment of his wife. After the death of wife of her Advocate Shri Vishnu Maheshwari, when she came to her Advocate’s Office, she came to know that an ex parte judgment and decree has been passed in favour of the respondent on 16-3-2011. In support of application filed under Order 9, Rule 13 r/w section 151, CPC before the Family Court, the appellant filed an affidavit of Ramprakash Sharma, Stamp Vendor under Order 18, Rule 4, CPC.

4. Per contra, the respondent by filing reply to the application under Order 9, Rule 13 r/w section 151, Civil Procedure Code, stated that the brother of his wife/appellant, namely, Omprakash Pathak is doing advocacy with advocate Shri Vishnu Maheshwari, therefore, the brother of appellant had full knowledge about the case. The appellant is not vigilant in pursuing her case. Even after contacting her Advocate on 5-4-2011 about the status of her case, the appellant is making a false story that she did not know about ex parte judgment and decree passed on 16-3-2011. It is further stated that he had neither given any mental or physical harassment to his wife nor he had turned out his wife from his house. His wife is a quarrelsome lady and is living separately according to her own will and volition. On the date of passing of ex parte judgment and decree, his wife remained absent without any sufficient reason. The appellant had full knowledge and was aware of the case filed against her and she willfully did not put in her appearance leading to ex parte judgment and decree passed in his favour.

5. Learned Counsel for the appellant submits that the trial Court has committed a material irregularity in rejecting the restoration application filed by the appellant for setting aside ex parte judgment and decree and has not properly considered the oral evidence of the appellant, therefore, the party like appellant should not be made to suffer on the fault of her counsel. Thus, her application under Order 9, Rule 13 read with section 151, Civil Procedure Code may be allowed and ex parte judgment and decreed dated 16-3-2011 passed by Third Additional District Judge, Morena, may be set aside.

6. On the other hand, learned Counsel for the respond