IMPORTANT POINT
In matrimonial dispute, justice should not be lost on technical ground of limitation.

On behalf of appellant/plaintiff/applicant/husband of the respondent, this appeal is preferred under Section 19 of the Family Courts Act, 1984, being aggrieved by the order dated 20.7.2015 passed by the Principal Judge of the Family Court, Datia in MJC No.1/2015 whereby allowing the application of the respondent filed under Section 5 of the Limitation Act for condoning the delay in filing the proceeding under Order IX, Rule 13 of the Code of Civil Procedure, for setting aside the ex parte judgment and decree of divorce dated 24.9.2015 passed by the abovementioned court in HMA Case No.55/2013 filed by the appellant herein, the entire delay of near about one year in filing such proceeding of Order IX, Rule 13 of the Code of Civil Procedure has been condoned.

2. Appellant’s counsel after taking us through the appeal memo, the papers placed on the record along with impugned order argued that after filing petition under section 13 of the Hindu Marriage Act by the appellant herein in the aforesaid family court, the same was registered as HMA Case No.55/2013 and its notice was sent to the respondent through registered post with A.D. After service of the same, no-one appeared on her behalf but written statement was sent through post on which such Hindu Marriage Case was proceeded ex parte against the respondent and vide judgment dated 24.9.2013 the same was decreed ex parte in favour of the appellant herein and a divorce decree was passed between the parties. Subsequent to that after a long delay i.e. near about one year without annexing any application of Section 5 of the Limitation Act the impugned proceeding under Order IX, Rule 13 of CPC was filed on behalf of the respondent in which by filing reply besides other objections, the objection relating to the limitation was also taken on behalf of the appellant stating that in the lack of any application of Section 5 of the Limitation Act showing the sufficient cause or proper explanation of filing the proceedings under Order IX, Rule 13 of CPC at belated stage, such proceedings being barred by time could not be entertained to examine the merits. Subsequent to filing such reply the application of Section 5 of the Limitation Act was filed on behalf of the respondent at very belated stage. The averments of such application through reply were also disputed on behalf of the appellant stating that whatever cause has been stated in the application for condoning the alleged delay the same could not be treated to be sufficient cause as per requirement of Section 5 of the Limitation Act and the prayer to dismiss the aforeaid application was made.

3. In further argument, he said that in the available circumstances, on consideration, such application ought to have been dismissed by the trial court but contrary to that without considering the objection of the appellant that the respondent has not properly explained the entire delay in filing the proceedings of Order IX, Rule 13 of CPC with proper approach the trial court has allowed such application in a very casual manner and condoned the alleged delay in filing such proceeding. He further said that when the negligence on the part of the respondent in the original case was apparent as inspite service of the notice she did not appear and the impugned proceeding of Order IX, Rule 13 of CPC was also filed initially without filing an application under Section 5 of the Limitation Act and even after filing of such application no sufficient cause was established on behalf of the respondent inspite that said application was allowed under wrong premises. With these submissions, he said that the impugned order being not sustainable under the law deserves to be set aside by dismissing the impugned application of the respondent and prayed for the same by admitting and allowing this appeal.

4. Having heard the counsel, keeping in view the arguments advanced, we have carefully gone through the appeal memo as well as papers placed on the record along wi