Court No. - 3

Case :- FIRST APPEAL No. - 662 of 2022

Appellant :- Arun Kumar Kataria @ Arun

Kumar

Respondent :- Smt. Preeti

Counsel for Appellant :- Sundeep Shukla

Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Rajendra Kumar-IV,J.

Heard learned Counsel for the appellant.

The appellant-husband has filed the appeal

praying to set aside the order dated 02.08.2022 in

Misc. Civil Case No.89 of 2021, (Smt. Preeti

versus Arun Kumar) passed by Principal Judge,

Family Court, Muzaffar Nagar whereby the

application of respondent-wife under Section 5 of

the Limitation Act has been allowed on a cost of

Rs.5,000/-. The aforesaid delay condonation

application was filed by the respondent-wife for

condoning the delay in filing the application

under Order 9 Rule 3 of the CPC for recalling of

the ex-parte judgement and decree dated

19.11.2018 in Divorce Case No.918 of 2016,

(Arum Kumar versus Smt. Preeti).

We have perused the impugned order. We find

that the respondent-wife has taken clear stand

that she was not aware of the aforesaid divorce

case and notice of the summon of divorce case

was not served upon her. From the objection of

the appellant herein dated 13.05.2022 filed as

annexure no.6 to the affidavit accompanying the

present appeal, it appears that as per paper no.13-

Ga/1 the process server could not find the house

of the respondent and yet he noted that the

noticee went in marriage. Similar notings were

made on paper no.13-Ga/3. The summon sent

through registered post returned unserved.

Once the process server could not find the house

of the respondent, there does not arise any

question to comment that the respondent has

gone in some marriage. The respondent has given

sufficient reasons for delay in filing the

application under Order 9 Rule 13 CPC which

has been well discussed in the impugned order.

Under the circumstances, the impugned order

condoning the delay on a cost of Rs.5,000/- does

not suffer from any illegality.

For all the reasons afore stated, we do not find

any merit in this appeal. Consequently, the appeal

is dismissed at the admission stage.

Order Date :- 14.9.2022

I.A.Siddiqui

Digitally signed by IMRAN AHMAD

SIDDIQUI

Date: 2022.09.16 17:11:20 IST

Reason:

Location: High Court of Judicature at

Allahabad