IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1673 of 2024 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2023 In R/FIRST APPEAL NO. 1673 of 2024 ==========================================================

MEGHA W/O. ANAND RAMANBHAI CHAUHAN AND D/O VASANT AAHIRE Versus CHAUHAN ANAND RAMANBHAI ==========================================================

Appearance:

HCLS COMMITTEE(4998) for the Appellant(s) No. 1 MS NILAM N CHAUHAN(6635) for the Appellant(s) No. 1 MS BHAKTI M JOSHI(3820) for the Defendant(s) No. 1 ========================================================== CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN and HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 02/12/2025

ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)

1. Captioned appeal is directed against the judgment dated 05.01.2023 passed by the learned Principal Judge, Family Court whereby, Family Suit no.737 of 2021 is allowed and the marriage solemnized between the parties on 02.06.2015 has been dissolved. Further direction is issued to pay a permanent alimony as per the provisions of Section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act of 1955”).

2. Being aggrieved, the appellant has preferred the captioned appeal on the ground that the judgment passed, is ex parte without offering sufficient opportunity to the appellant.

3. Ms Nilam N. Chauhan, learned advocate appearing for the appellant, submitted that it is sought to be recorded in the order that the summons is served upon the appellant; however, the appellant all throughout, was unaware about the summonses and the consequences thereof. Moreover, the appellant is not well versed with the nuances of the law so also the consequences of the non-observance of the procedure. It is submitted that though it is projected that the summonses have been served; however, it might have been received by the family members but not by the appellant and simply placing the acknowledgment receipt, would not be sufficent to substantiate that the summonses were served.

3.1 It is next argued that the assurance was extended by the respondent to the appellant that nothing would happen and everything, would be taken care of at his end. With a lack of understanding on her part, the appellant could not remain present. Language barrier is another reason and hence, the appellant could not appreciate the nature of the proceedings, the consequences and repercussions.

3.2 It is urged that the judgment being ex parte, deserves to be quashed and set aside.

4. Ms Bhakti M. Joshi, learned advocate appearing for the respondent, has raised an objection as to the maintainability of the captioned appeal in view of the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) which provides a remedy to the appellant to approach the very Court for setting aside the ex parte decree if the appellant wishes so. It is urged that in view of the provisions of Order IX Rule 13 of the Code, the appeal, may not be entertained and the appellant may be relegated to approach the Court below.

5. Ms Nilam N. Chauhan, learned advocate, in the brief response, submitted that concurrent remedy is available to the party against whom ex parte decree is passed; namely, (i) preferring an appeal under Section 96 of the Code or (ii) filing an application under Order IX Rule 13 of the Code. It is submitted that there being concurrent remedy available, the appellant has chosen to approach this Court. Arguing thus, it is fairly submitted that the appellant, may not press the captioned appeal with a liberty to file an application under Order IX Rule 13 of the Code; however, filing of the appeal may not come in her way and the withdrawal may be without prejudice to the rights and contentions of the appellant. Moreover, the issue of delay may also crop up as the judgment is of the month of January 2023. As the appellant was pursuing the remedy under a bona fide impression, the time consumed