2021 (2) TMI 1405

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....low has refused to restore the petition filed under Section 13 of the Hindu Marriage Act, 1955 (henceforth, the Act of 1955). 2. Learned counsel appearing for the Appellant submits that the Court below has committed an illegality in holding that the Appellant has failed to establish the sufficient cause for his non-appearance on 23.02.2017 and erred further in rejecting the application filed under Order 9 Rule 9 of CPC by holding it to be barred by time. It is contended that since the Appellant was assured by his counsel that his presence would be needed only when the written statement will be filed by the Respondent-wife and when the matter will be fixed for the evidence. It is contended further that since he was not informed as such by....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... allowing her application moved under Section 24 of the Act of 1955 on 20.12.2016, the Court below has fixed the case for the Appellant's evidence on 07.01.2017. On 07.01.2017, the Appellant was absent and the matter was, therefore, adjourned for 23.02.2017 at the request of his counsel. However, neither the Appellant nor his counsel had appeared when it was called twice on the said date and, the matter was, therefore, dismissed for non-prosecution on 23.02.2017. 6. It appears that an application for its restoration was moved on 11.09.2017 by the Appellant under Order 9 Rule 9 of CPC, much beyond the prescribed period of 30 days by submitting, inter alia, that since he was assured by his counsel that his attendance would be required ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... application for restoration that it has not been accompanied with an application seeking for its condonation, no effort was made by the Appellant for filing an appropriate application in this regard in order to cure the said defect. In view of that, it was not entertainable in the light of principles laid down by the Supreme Court in the matter of Ragho Singh vs. Mohan Singh and others (supra) wherein, when an application for condonation of delay of 10 days in filing the restoration application was not filed, it was observed at paragraph 6 as under:- "6. We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under S....