1977 Supreme(MP) 507

IN THE HIGH COURT OF MADHYA PRADESH
R. K. TANKHA, J.
Surapchand Kirad - Appellant
Versus
Smt. Gondanbai - Respondent
M. F. A. No. 107 of 1977 (J)
Decided on : 19-08-1977

Headnote:Civil Procedure Code, 1908 - O. 9. R. 13 - application under Order 9. rule 13 can only be accepted if sufficient cause for non - appearance is made out - application cannot be granted on some humanitarian ground.

       Short Note

       1. Respondent - petitioner had filed a suit for divorce under section 13 (1 - A) (ii) of the Hindu Marriage Act, 1955. The case was fixed for 9 - 2 - 1977 before the trial Court for evidence of the appellant - non - applicant and his witnesses. On that date he was absent so the trial Court proceeded ex party against him and passed a decree of divorce. Appellant's application under Order 9, rule 13 CPC had been rejected by the trial Court on the ground that the appellant non - applicant failed to prove sufficient cause for his non - appearance on 9 - 2 - 1977.

       2. Held : The contention of the learned counsel for the appellant - non - applicant was that as the matter related to divorce, the trial Court ought to have taken a lenient view in the matter of setting aside the exparte decree. This Court finds it difficult to accept the contention. An application under Order 9 rule 13 of the Code can only be accepted if sufficient cause for non - appearance is made out. The application cannot be granted on some humanitarian ground. The Court went through the evidence on record and finds that there had been material contradictions in the statements of the appellant and his witnesses which have also been pointed by the trial Court leading to disbelieve the story made out for his non - appearance on 9 - 2 - 1977. Learned counsel for the appellant was unable to point out that the appreciation of evidence by the trial Court could be called in question as improper. When the appellant failed to establish sufficient cause for his non - appearance on 9 - 2 - 1977 by examining his evidence, this Court would not like to interfere with the finding arrived at by the trial Court on humanitarian grounds. In the opinion of this Court, that would not be the correct approach of law.

       Appeal dismissed.