THE HONOURABLE SRI JUSTI CE P.SAM KOSHY CI VI L REVI SI ON PETI TI ON No.232 of 2025

ORDER

(per the Hon’ble Sri Justice P.Sam Koshy)

The instant Revision has been filed by the petitioner herein challenging the order dated 22.10.2024, in I.A.No.1351 of 2023 in FCOP.No.381 of 2020, passed by the Judge, Family Court, R.R.

District at L.B. Nagar.

2. Heard Ms. Manjari S. Ganu, learned counsel for the petitioner, and Mr. Shyam S. Agarwal, learned counsel for the respondent.

3. Vide the impugned order; the Family Court has rejected a petition filed by the petitioner (wife) under Section 5 of the Limitation Act praying the Court to condone the delay of 874 days in filing the petition under Order IX Rule 10 of CPC for setting aside the ex parte decree that was passed in favour of the husband on

12.04.2021.

4. The facts which led to filing of the instant Revision are as under:-

a) The petitioner and respondent herein are husband and wife.

Henceforth, for convenience, the parties to the proceedings are referred to as husband and wife.

b) There are two petitions which have been filed by the husband before the Family Court, R.R. District at L.B. Nagar.

c) One is registered as FCOP.No.381 of 2020 seeking for declaration of the husband as true and lawful owner of the petition schedule ‘A’ and ‘B’ properties and also for perpetual injunction against the wife, her family members, agents, servants, henchmen or anyone claiming through her from interfering with the peaceful possession and enjoyment of the husband over the schedule ‘A’ and ‘B’ properties. Another is a petition filed almost around the same time when FCOP.No.381 of 2020 was filed which was however registered at a very belated stage i.e. FCOP.No.141 of 2021 under Section 13 of the Hindu Marriage Act for issuance of a decree of divorce.

d) The FCOP filed seeking for decree of divorce is still pending consideration before the Family Court. However, the FCOP filed for declaration and perpetual injunction was decided on

12.04.2021.

e) The wife was proceeded ex parte and the decree was passed as an ex parte decree on 12.04.2021. The petition for declaration and perpetual injunction was filed on 20.03.2020. Whereas, the petition for decree of divorce was one which was filed on 11.03.2020. However, for reasons not known, the said petition got registered only at a much belated stage in the year 2021.

f) Though it is reflected in the ex parte order dated 12.04.2021 that notices were issued upon the wife and it was duly served, since there was no representation on her behalf before the Family Court, the Family Court was left with no other option, but to pass ex parte decree.

g) The petition under Order IX Rule 13 of CPC has since been filed only on 20.09.2023, i.e. with a delay of 874 days, the wife also filed a petition under Section 5 of the Limitation Act for condonation of the said delay of 874 days. It is this Section 5 petition filed along with Order IX Rule 13 petition which stands dismissed by the Family Court and which is under challenge in the instant Revision.

5. The contention of the learned counsel for the wife was that the notices issued by the Family Court was in fact not duly and effectively served. Though there seems to be an acknowledgement that has been received by the Family Court, but the signatures reflected seems to be a fabricated one and it is not that of the wife.

6. It was further contended by the learned counsel for the wife that though an ex parte decree was passed on 12.04.2021, a WhatsApp message was for the first time delivered upon the wife and her children only on 29.05.2022 whereby there is an intimation of an ex parte decree having been passed in a petition for declaration and perpetual injunction. Meanwhile, the notices in the divorce petition also got served where the wife had immediately entered appearance and was contesting the case on merits. However, there were continuous mediation proceedings going on between the husband and wife at different levels i.e. at the level