PRASENJIT MANDAL, J. - (1.) THIS application is at the instance of the husband/petitioner and is directed against the judgment and order dated March 19, 2013 passed by the learned Additional District Judge, 14th Court, Alipore in Misc. Case No.16 of 2009 under Order 9 Rule 13 of the C.P.C. arising out of the Matrimonial Suit No.1565 of 2008 (renumbered as Matrimonial Suit No.78 of 2009) thereby allowing the said misc. case with costs of Rs.5,000/ - to be paid by the wife/opposite party herein to the husband/petitioner herein. The result is that the ex parte decree for divorce passed on June 29, 2009 in the aforesaid matrimonial suit has been set aside.
(2.) THE husband/petitioner herein preferred the aforesaid matrimonial suit for divorce before the learned District Judge, Alipore and accordingly, summons was duly served upon the wife/opposite party herein, but, she did not prefer to contest the said matrimonial suit for divorce. As a result, the said matrimonial suit was decreed ex parte on June 29, 2009 thereby decreeing the suit ex parte and declaring that the marriage ties between the parties be dissolved by the decree for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Thereafter, the wife/opposite party herein filed an application under Order 9 Rule 13 of the C.P.C. and the said application was converted into the Misc. Case No.16 of 2009. Both the parties adduced evidence in support of their contentions and upon analysis of the evidence on record, the learned Trial Judge allowed the said misc. case on March 19, 2013 with costs of Rs.5,000/ - thereby setting aside the ex parte decree dated June 29, 2009. Being aggrieved by such judgment and order, the husband/petitioner herein has preferred this application. The wife/opposite party herein is contesting the said application. Now, the question is whether the impugned order should be sustained.
(3.) UPON hearing the learned Counsel for the parties and on going through the materials on record, I find that before disposal of the said matrimonial suit ex parte on June 29, 2009, the learned Trial Judge took necessary steps for service of summons. Even steps for substituted service under Order 5 Rule 20 of the C.P.C. were also taken up by making a paper publication in a widely circulated newspaper. In spite of that, the wife did not come to contest the said matrimonial suit. Mr. Kushal Chatterjee, learned Advocate appearing for the husband/petitioner herein has contended that the said application under Order 9 Rule 13 of the C.P.C. is not maintainable at all, in view of the fact that though the ex parte decree had been passed on June 29, 2009, the application for setting aside the ex parte decree was filed only on August 29, 2009 and an interpolation had been made in the application to show that the said application had been filed on July 29, 2009.;