Court No. - 39

Case :- FIRST APPEAL No. - 350 of 2022

Appellant :- Smt. Renu Yadav

Respondent :- Amit Kumar Yadav

Counsel for Appellant :- Abhishek Tiwari

Counsel for Respondent :- Santosh Singh

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the parties and perused the record.

This appeal is directed against the order dated 09.03.2022

passed by the Family Court, Gautam Buddh Nagar for rejection

of the applications 17-Ga-2 & 19-Ga-2, the application under

Section 5 of the Limitation Act accompanied with the

application under Order 9 Rule 7 of the Code of Civil

Procedure for recall of the order dated 03.04.2019 to proceed

with the suit exparte, on account of non appearance of the

appellant/defendant on the date fixed before the Family Court.

In the order dated 03.04.2019 to proceed exparte, it was noted

by the Family Court that the appellant/defendant therein was

not present and no written settlement was filed by her.

A perusal of the order sheet of the Family Court brought on

record by means of the supplementary affidavit filed today

indicates that on the presentation of the suit on 10.09.2018, the

plaintiff/defendant was directed to take steps for service of

summons upon the defendant. On the next date fixed, further

time was granted to do pairvi within seven days and 14.01.2019

was fixed for written statement. The appellant

herein/defendant/wife had put in appearance before the Family

Court on 14.01.2019 itself and time was granted to file written

statement while fixing 03.04.2019 by the Family Court. On

03.04.2019, the defendant wife could not appear and written

statement was not filed by her. The decision was, therefore,

taken to proceed exparte and 10.07.2019 was fixed by the

Family Court. On 10.07.2019, nothing happened as the

Presiding Officer was on training and the matter was posted on

13.08.2019 for exparte evidence. On the said date itself, the

applications 17-Ga-2 and 18-Ga-2 were filed by the defendant

wife to seek recall of the order dated 03.04.2019 to proceed in

the suit exparte. The said applications were contested by the

plaintiff/respondent herein for a period of more than three years

and they have been rejected vide order dated 09.03.2022, which

is subject matter of challenge in the present appeal.

It is argued by the learned counsel for the respondent/plaintiff

that the present appeal is not maintainable, the order dated

09.03.2022 being an interlocutory order.

This submission of the learned counsel for the respondent

herein is found misconceived, in as much as, on account of

dismissal of the applications 17-Ga-22 and 19-Ga-22 by the

order dated 09.03.2022, the right of the plaintiff to contest the

suit for divorce filed by the respondent husband has been taken

away. The order, thus, causes serious prejudice to the appellant

and amounts to final determination of the dispute being raised

in the application 17-Ga-2 and 19-Ga-2. The order dated

09.03.2022 which decides the issue in relation to the appellant

wife to contest the suit filed by her husband cannot be said to an

interlocutory order, so as to keep it out of the purview of section

19 of the Family Court Act' 1984.

The appeal is, thus, held maintainable.

The second submission of the learned counsel for the

respondent husband is that since the appellant wife has failed to

file the written statement within the time period allowed under

Order 8 Rule 1 CPC, the Family Court was right in proceeding

for hearing of the suit exparte in accordance with the Order 8

Rule 10 CPC and the appellant herein cannot seek recall of the

order dated 03.04.2019 to proceed exparte.

As far as the provision of Order 9 Rule 7 CPC, it is argued by

the learned counsel for the respondent that since no written

statement was filed by the appellant wife on the date fixed

before the Family Court, the Family Court had no jurisdiction

to recall the order passed under Order