- (1.) HAVING regard to the subject -matter, at the request and with the consent of learned counsel for the parties, we have heard on this appeal finally at this stage itself.
(2.) THIS appeal under Section 19 of the Family Courts Act, 1984 is directed against the order dated 14.11.2013 as passed in Civil Misc.Case No.4/2013 whereby, the Family Court, Hanumangarh has dismissed the applications under Section 5 of the Limitation Act and under Order IX Rule 13 of the Code of Civil Procedure, as filed by the present appellant (husband), seeking condonation of delay and setting aside of the judgment and decree dated 07.02.2011, made ex parte on the petition filed by the present respondent (wife) for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 ('the Act'). In brief, the relevant background aspects of the matter are that the present respondent (wife) filed the said petition seeking restitution of conjugal rights in the Court of Additional District Judge, Sangria with the submissions that she was being unnecessarily harassed by her husband and in -laws with demand of dowry and, on 09.09.2010, she was turned out of matrimonial house without any reason. The learned Trial Court recorded that despite service, the appellant, who was the non -petitioner in the said petition, failed to appear; and, after taking ex parte evidence and finding the evidence led by the applicant (wife) unrebutted, passed the decree for restitution of conjugal rights on 07.02.2011. It appears further that the respondent -wife levied execution of the decree dated 07.02.2011 whereupon, notices were issued and the same were also served upon the appellant -husband.
(3.) THE appellant -husband later on submitted the applications under Section 5 of the Limitation Act as also under Order IX Rule 13 CPC before the jurisdictional Family Court at Hanumangarh, seeking condonation of delay and setting aside of the ex parte decree for restitution of conjugal rights. The appellant, inter alia, asserted that he had instructed a counsel who did not appear, and for this reason alone, the ex parte decree came to be passed and the delay occurred in applying for setting aside the decree. The applications so made were put to contest by the respondent -wife, inter alia, with the submissions that the husband had filed a petition under Section 13 of the Act in the Court of Additional District Judge, Sirsa wherein, a reply was filed on her behalf on 27.09.2011 and therein, the fact of passing of the decree dated 07.02.2011 was specifically mentioned.;