Decided on February 25,1952



Basheer Ahmed Sayeed, J. - (1.) These two appeals are preferred by the respondent in the petition O. P. No. 23 of 1950, which was filed by the respondent herein under Act 6 of 1949 for a declaration that the marriage between him and the appellant should be dissolved.
(2.) The petition itself was filed on 11-2-1950. Counter was filed on 19-6-1950. The learned Subordinate Judge did not frame any issues but posted the petition for trial to 26-7-1950. Then, on 26-7-1950, the appellant put in an application for adjournment of the trial of the petition on the ground that she was suffering from dysentery and colic pain. An affidavit also was filed. In support of that petition together with medical certificate from a qualified registered medical practitioner;. This petition was dismissed by the learned Subordinate Judge with the observation that he did not think that there were any bona fides in the petition for adjournment. Thereafter, the learned Subordinate Judge allowed the petition ex parte against the appellant. The appellant thereafter preferred a petition under the Code of Civil Procedure for setting aside the ex parte decree and for giving an opportunity to the appellant for the trial of the suit and for letting in evidence. This petition again was dismissed by the learned Subordinate Judge on the ground that that petition was not maintainable and that only the right of appeal was to have been availed of. Against the orders in both these petitions, wherein the appellant filed in the lower court, she has now preferred these appeals. The first point that is urged by the learned counsel for the appellant, who is the young wife of the respondent, is that under Rule 9 framed under Act VI of 1949, it was the, duty of the learned Subordinate Judge to have adjourned the petition for four months after framing issues. This is apparently intended to give scope for locus penitentiae to the parties. So that there need be (no?) necessity for any order of dissolution of marriage, which is a solemn affair between husband and wife. Without compliance with this rule, the learned Subordinate Judge would appear to have posted the petition itself for trial on 26-7-1950 without framing any issues. Thereby he has not given any opportunity to either of the parties to think over the matter and then explore the possibilities of coming together and lead a reconciled and peaceful life as husband and wife. The learned Subordinate Judge must be held to have failed to exercise the jurisdiction that vested in him under Rule 9 of the rules framed under the Act.
(3.) In the second place, it is argued by the learned counsel for the appellant that the order of the learned Subordinate Judge that no petition under the Civil Procedure Code for setting aside an ex parte decree was sustainable is wrong. Section 5 of Act 6 of 1949 provides tor the provisions of the Civil Procedure Code governing suits being made applicable to all proceedings under Act 6 of 1949. Under this provision, it is abundantly clear that the petition to set aside the ex parte order, decreeing or dismissing it would be one which is liable to be taken up and considered by the court. Mr. Desikan for the respondent contends that Order 9, Rule 13, Civil P. C., is not made directly applicable to petitions under Special Act 6 of 1949. The provision is too general and, therefore, hist argument is that unless it has been made spe-cifically applicable, the learned Subordinate Judge was not bound to apply Order 9, R 13. I do not think that this contention could be accepted for the reason that when all the provisions of the Civil Procedure Code applicable to suits and other proceedings are made applicable to petitions under this special Act, there is no need for any specific provision of the Code being picked up and made directly applicable to petitions made under the special Act. Therefore, in my view, the learned Subordinate Judge ought to have taken up the application and considered the merits of the same before passing any order. The cryptic order that has been passed by the learned Subordinate Judge that notwithstanding Section 5 of the said Act the petition for setting aside the ex parte decree was not sustainable is on the face of it wrong and cannot be supported. In the circumstances, I must set aside both the orders of the learned Subordinate Judge and allow these appeals with costs--one set. The petition O. P. No. 23 of 1950 will, therefore, be remanded and it will be heard and disposed of according to merits.;

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