Deoki Nandan, J. - (1.) The first one of these First Appeals from Order No. 425 of 1976 is by the wife and is directed against an order refusing to set aside an ex parte decree for restitution of conjugal rights, passed on 19th September, 1975 on the respondent-husband's petition under Section 9 of the Hindu Marriage Act, 1975.
(2.) The second one of these first appeals No.115 of 1980 is by the husband and is directed against the judgment and decree dated 23rd January, 1980 dismissing the husband's petition for divorce under Section 13 of the Hindu Marriage Act. This appeal has wrongly been registered as First Appeal from Order. It ought to have been registered a First Appeal from decree. Sine the court-fees of Rs. 37-50P only is payable on an appeal from decree under the Hindu Marriage Act, and has been paid on the memorandum of appeal, I treated the appeal as an Appeal from decree and proceeded to bear it without waiting for having it registered as a regular first appeal from decree. The Office of the Court shall rectify the error in due course.
(3.) Having heard learned counsel for the parties I am satisfied that both these appeals must be allowed and the matrimonial petitions giving rise to these appeals remanded to the same court for a fresh trial subject to certain observations and directions contained in this judgment. F.A.F.O. No. 425 of 1976 4. Suit No. 10 of 1975 was instituted in the court of the District Judge, Etawah by the husband Mata Prasad for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, on 29th April, 1975. Summons were issued in due course but even before they were served there was an application for amendment which was allowed and the summons of the amended petition were ordered to be issued. On 4th July, 1975, the wife, who was the respondent before the trial court, applied for 2 months time for filing a written statement, which was allowed by order dated 11th July, 1975, and 19th September, 1975 was fixed for issues. The case was thereafter transferred by the court of the District Judge to the court of the 1st Additional District Judge Etawah, and that court fixed the 9th September, 1975 for filing written statement and 19th September, 1975 for issues. On 9th September, 1975, the wife made an application under Section 24 of the Hindu Marriage Act, for Rs. 1,000/- towards expenses of the proceeding. Another application was made therewith praying that the proceedings in the case may be stayed and she may be permitted to file her written statement after the decision of the application under Section 24. It was mentioned in that application that the Sub-Divisional Magistrate, Bharthina. had awarded a maintenance allowance of Rs. 100 /- per month to the wife against the husband. The learned Additional District Judge rejected both these applications on the ground that no one was present "to press it", and on 19th September, 1975 decreed that suit ex parte by the following order : "This is a suit for restitution of conjugal rights of the plaintiff against the defendant. The plaintiff entered into witness box and proved his case ex parte. The defendant did not turn up to context the suit I see no reason to disbelieve the plaintiff. The suit 'of the plaintiff as prayed is decreed ex parte. Cost shall be easy. Sd/-Illegible 19-9-75 " 5. An application duly supported by an affidavit way presented the following day on 20th September, 1975. The fact of the making of the application under Section 24 of the Hindu Marriage Act and of application for stay of proceedings and permission to file the written statement until the application under Section 24 was decided was mentioned and it was stated that the wife was told by her lawyer and his clerk that a date would be fixed for hearing of the case under Section 24 of which an intimation would be sent to her. The wife then sent her brother on 17th September, 1975 to enquire about the date fixed for hearing of the application under Section 24, when he was informed that both the applications had been dismissed for default and 19th September, 1975 was fixed for ex parte hearing. On 19th September, 1975 she was delayed some what in reaching the court with her brother on account of non-availability of conveyance and when they reached the court-room at about 11 A. M. along with the lawyer, they found that the statement of the husband was being recorded ex pane. The wife's lawyer requested the learned Judge that he wanted to apply for setting aside the ex parte order whereupon the learned Judge observed that an application could be made for setting aside the ex parte decree. The wife's lawyer thereupon got engaged in another case and it became late, consequently the application could not be moved on 19th September, 1975. A counter-affidavit was filed stating that the wife never came to the court on 19th September, 1975 and the allegation that the wife's counsel was asked by the learned Judge to apply for setting aside of the ex parte decree was also denied. A rejoinder-affidavit was filed by the wife in which the facts stated in the application and the affidavit were re-affirmed and the allegations made in the counter- affidavit were denied. 6. The application was made on 20th September, 1975. The counter affidavit and the objection filed the with are dated 27th November, 1975. The rejoinder-affidavit is dated 14th February, 1976 and the learned 1st Additional District Judge decided the application by his order dated 27th July, 1976. It is to he regretted that there should have been such adelay in disposing of the application for setting aside of the ex parse decree. The application was made the very next day on which the ex parte decree was passed. The allegations made therein must have been fresh-in the mind of the learned Judge on the date when the application was made and it is highly improbable that a lawyer would sign an application containing such allegations as to what happened in the court on 19th September, 1975 unless they were true. But time having been allowed to pass, it spas easy for the husband and his lawyer to deny the allegations made in the application and the affidavit for setting aside the ex parte decree. Since talk allegations were denied, rejoinder-affidavit was filed. The learned Judge has passed his order not on what he remembered to have happened on 19th September, 1975 but on the basis of the allegations made in the counter-affidavit. It would have been difficult to set aside the findings of the learned Judge that the wife did not attend the court on 9th September, 1975 or 19th September, 1975, if those findings had been based on his own observation, but the learned Judge has chosen to base that finding and to reject the application on that ground, on the counter- affidavit and what he has called, the "fact and circumstances of the case." Looking at the facts and circumstances of the case, I find it impossible to agree with the learned Judge. The 9th September, 1975 could not have been fixed as the date for tiling written statement by the court of the 1st Additional District Judge inasmuch as two months time had been allowed for filing the written statement by the learned District Judge's order dated 11th September, 1975 and by the same order the learned District Judge had fixed 19th September, 1975 for issues. It was not necessary for the wife to have attended the court on 9th September 1975, even if it was a date fixed for filing the written statement. She could have filed the written statement by 11th September, 1975. It was not necessary for the wife to have attended the court on 9th Sep., 1975, but probably apprised of the order passed by the court of the 1st Additional District Judge, her lawyer had informed her of that date which was fixed for filing written statement. An application under Section 24 was moved accordingly on that day with an application praying for stay of the proceeding until the disposal of that application and permission to file written statement after that application was disposed of, These two applications could not have been dismissed summarily for default of the counsel. They had been moved on 9th September, 1975 after serving copy on the counsel for the husband ; and the counsel who had moved those applications could very well have believed that they would be found on the date fixed for the first hearing of the case, viz., 19th September, 1975, which was already fixed for framing issues. The allegation that the wife was told by her counsel that, a date will be fixed for the hearing of the application of which an intimation will be given was under the circumstances most probably true. The applicant's brother is said to have visited the court on 17th September, 1975. That showed due diligence on her part. It was alleged that on 19th September, 1975, the wife along with her brother reached the court a little late because of non-availability of conveyance and they reached the court-room with her counsel at about 11 A. M. when the ex parte statement of the husband was being recorded and a request was made to the learned Judge by the wife's counsel for permission to move an application for setting aside the ex parte order, but the learned Judge is said to have remarked that an application for setting aside of the exparte judgment and decree could be moved. An application containing such allegations could not have "can normally signed by an advocate unless the averments were true, for if they were not true, the Advocate could be pulled up by the learned, Judge for making false allegations in his face and the allegations in his face and the application dismissed then and there. If the learned Judge had not delayed the hearing of the application for setting aside of the ex parte decree, the matter would have been fresh in his mind, but he allowed it to hang on for about 10 months. The learned Judge has said that the contention of the husband that the wife was not present in court on 19th September, 1975 is borne out fully from the fact that the affidavit was sworn by the applicant on 20th September, 1975. The learned Judge has omitted to take into consideration the explanation given in the application and the affidavit by the wife that her counsel got busy and could not prepare the affidavit and the application on 19th September, 1975 and that was why it was moved the next day on 20th September, 1975. 7. There is the further fact that the dismissal of the wife's application under' Section 24 was wholly unjustified and so long as that application was not decided, the suit could not proceed. The matrimonial jurisdiction is in certain matters different front ordinary civil jurisdiction. 8. I have, therefore, reached the conclusion that the learned 1st Additional District Judge who dealt with these matters acted improperly in dismissing the wife's application under Section 24, on 19th September, 1975, and in proceeding to hear and decree the husband's suit ex parte on 19th September, 1975, and still more improperly in refuse to set aside the ex parte decree, by his impugned order dated 27th July, 1976. The appeal is allowed. the order dated 27th July, 1976 refusing to set aside the ex parte decree dated 19th September, 1975 is set aside. The two orders passed on 9th September, 1975 on the two applications 11-D and 11-C dismissing them for default, and all proceedings taken thereafter decreeing the suit ex parte on 19th September, 1975 are also quashed sue mote under Article 227 of the Constitution. Matrimonial Suit No. 10 of 1975 of the court of District Judge, Etawah is restored to its original number. F.A.F.O. No. 115 of 1980 9. As observed above, this appeal should have been registered as a regular first appeal from decree. The office shall do so now. 10. The suit giving rise to the first appeal is by the husband for divorce on the ground that the respondent -wife ill treated the husband, who was the petitioner in the court below and is the appellant in this court. It was even urged that the respondent-wife is impotent, and in the same breath, that the respondent has without any reasonable and probable cause withdrawn from the petitioner appellant's society, that is, to say the wife has deserted the husband. The wife on the other hand claimed that she was turned out of the house by the husband for some ulterior motives as alleged in the written statement. It was also stated that an application under Section 125 of the Criminal Procedure Code has been filed by the wife which was allowed and she was allowed maintenance at the rate of Rs. 100/- per month. 11. It would appear that after the stay order under Section 125 of the Criminal Procedure Code, the husband filed a petition for restitution of conjual rights under Section 9 of the Hindu Marriage Act, 1955. That petition was decreed ex parte on 19th September, 1975 and the application for recalling that order having failed, it was brought up in this court by the aforesaid First Appeal from Order No. 425 of 1675 which has been allowed above. The husband's petition for divorce was, however, dismissed by the trial court on the findings that the allegation of impotence against the wife was baseless that it was the husband who had ill-treated the wife and his treatment towards her was not good and that the wife had not withdrawn from the husband's society without any reasonable or probable case and further that she was turned out by the husband from his house. The husband has appealed from the decree dismissing his suit for divorce. The result is that there are now two self contradictory proceedings by the husband, one for restitution of conjugal rights and the other for divorce. Learned Counsel for the husband was not in a position to state whether the husband would like to prosecute his suit for divorce in the present First Appeal from the decree dismissing it, or the for suit restitution of conjugal rights which has now become pending by reason of the above order by which the ex parte decree of the lower court has been set aside. He was at the same time desirous of pressing the first appeal from the decree dismissing they suit for divorce. Probably rightly so, for it can be assumed that the' husband is no longer interested in restitution of conjugal rights and wants divorce. 12. From the issues framed, there appear to have been three grounds on which divorce was claimed : The first ground of impotence has been found to be baseless. That is not a ground for divorce. Impotence in order to be ground for matrimonial relief had to be such as existed at the time of marriage and on account of which the marriage could not be consummated and the relief claimable on that ground is a decree of nullity under Section 12 of the Hindu Marriage Act. It has been found that the allegation was baseless. It need not detain us any longer as it is not a ground for divorce. The other two grounds are of ill-treatment and desertion of the husband by the wife. They are closely connected with and dependant on the facts on which restitution of conjugal rights was claimed in the earlier suit. Under the circumstances, I consider it expedient in the interest of justice that the appeal should be allowed and the suit should be decided afresh along with the earlier suit for restitution of conjugal rights. It shall however, not be open to the husband to press the plea of impotence against the respondent. At the same time it shall be open to the wife to make a counter claim under section 23-A of the Hindu Marriage Act in the petition for divorce; and the husband may, if he so decides, withdraw the petition for restitution of conjugal rights if he is no longer interested in that relief. It shall be in the discretion of the trial court whether to allow any fresh evidence or not, but evidence hiving already been led by the parties in the divorce suit on the issues raised on the pleadings, fresh evidence is not to be normally allowed unless there is such an amendment of the pleadings as to justify the leading of fresh evidence. 13. In the result the first appeal is allowed. The decree dated 23rd January, 1980 of the court of the With Additional District Judge, Etawah in Matrimonial Suit No. 28 of 1977 is set aside and the suit is remanded for a fresh trial in the light of the above observations along with Matrimonial Suit No. 1 of 1975 of the coact of the District Judge, Etawah. In pursuance of the above order passed in First Appeal No. 425 of 1976, both the suits are remanded to the court of the District Judge, Etawah. They shill be heard and decided together either by that court or by any other court of an Additional District Judge within the Judgeship of Etawah to which the District Judge may assign them. There will be no order as to costs in this court. Both appeals allowed.;