Meenakshi Goswami v. Sunil Kumar

Court No. - 39 Case :- FIRST APPEAL DEFECTIVE No. - 425 of 2023 Appellant :- Meenakshi Goswami Respondent :- Sunil Kumar Counsel for Appellant :- Arun Kumar Sharma Hon'ble Saumitra Dayal Singh,J. Hon'ble Shiv Shanker Prasad,J.

¶1Heard Sri Arun Kumar Sharma, learned counsel for the appellant and perused the record.

¶2Present appeal has been filed under Section 19 of the Family Courts Act, 1984, against the ex parte order dated 16.02.2019 passed by the Principal Judge, Family Court, Meerut in Case No. 39 of 2018 (Sunil Giri Vs. Smt. Minakshi). By that order, the learned court below has granted ex parte decree of divorce in favour of the respondent.

¶3The appeal has been presented carrying a delay of 1635 days. As to delay, it has been submitted since the proceedings were wholly ex parte and that ex parte proceeding arose on certain misrepresentations made by the respondent as to service of notice on the present appellant, the present appellant was never aware of the decree dated 16.02.2019.

¶4Without testing the correctness or otherwise submissions advanced by learned counsel for the appellant and leaving it open to the learned court below to draw its judgement on the strength of record before it, on the issue of prior service of notice, we provide, the appellant may apply for recall of the ex parte judgement and decree dated 16.02.2019.

¶5In the given facts, it may be better and more efficacious that the appellant may pursue the remedy of recall before the learned court below itself before we may attempt to offer any consideration on the issue whether notice of the proceedings in Case No. 39 of 2018 was validly served on the appellant.

¶6On such suggestion, learned counsel for the appellant prays, he may be permitted to withdraw the present appeal with liberty to pursue his remedy afresh, if cause survives.

¶7Present appeal is accordingly dismissed as withdrawn.

¶8Let certified copy of the impugned judgement and decree dated 16.02.2019 be returned to the learned counsel for the appellant within a period of one week. Order Date :- 22.11.2023 Abhilash . (Shiv Shanker Prasad, J.) (S. D. Singh, J.) High Court of Judicature at Allahabad