HIGH COURT OF UTTARAKHAND
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Barin Ghosh, C. J. -
(1.) THESE two appeals are taken up together and disposed of after hearing the parties and considering the materials on record by the following judgment and order.
(2.) ON 18th November, 2010, claim of the appellant pertaining to litigation expenses and maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955 was taken up for consideration. After such claims were considered, the next date of hearing was fixed as 24th January, 2011. Against the order directing payment of litigation expenses and maintenance dated 18th November, 2010, an appeal was preferred, which was disposed of on 21st December, 2010. There was no just reason for the appellant not to appear before the court below on 24th January, 2011, but by reason of, as was claimed before the court below, mistake on the part of learned lawyer for the appellant, no appearance was caused on behalf of the appellant before the court below on 24th January, 2011. ON 24th January, 2011, the date of ex parte hearing of the suit was fixed. Before that date, an application was filed for recalling the order, by which ex parte hearing of the appeal had been fixed. By the judgment and order under appeal (in one of these appeals), the learned court below has rejected the application. Subsequent thereto, the learned court below decreed the suit ex parte. Against the ex parte decree, the other appeal has been preferred.
The fact remains that there was non-appearance only on 24th January, 2011. The fact also remains that before the ex parte decree was, in fact, passed, an application was filed by the appellant to give her an opportunity of being heard before the suit is decided. There was no just reason for the court below to act in the manner it has acted and thereby prevented the appellant from putting her case in defence to the suit filed by the husband.
We, accordingly, allow both the appeals, set aside the order fixing the suit to be tried as ex parte as well as ex parte decree. For the fitness of the case, we direct the court below to hear the suit de novo and decide the same on merits. Let the court below fix the first date of hearing of the suit within fifteen days, after notice to the learned Advocates for the parties, from the date of receipt of a certified copy of this order, which may be filed by any of the parties.;
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