1. Mr. Ratsingh, learned advocate appears on behalf of appellant-husband and submits, his client is aggrieved by judgment dated 17th December, 2019 of the Family Court dismissing his client’s petition for dissolution of the marriage. His client was prevented by sufficient causes from appearing at hearing of the petition, to adduce evidence. The Family Court closed evidence to be adduced by his client and thereupon allowed respondent-wife to adduce evidence, not tested in cross-examination. The Family Court went on to pass the judgment ex parte against his client. He points out from order dated 24th November, 2019 that the Family Court made further error of recording respondent-wife had been cross-examined. He submits, impugned judgment be set aside in appeal and there be direction for remand.
2. Mr. Dash, learned advocate appears on behalf of respondent-wife and submits, appellant-husband did not and does not have a case. The civil proceeding was correctly dismissed. There be no interference in appeal.
3. Rules 8 and 9 in order IX, Code of Civil Procedure, 1908 are reproduced below.
“8. Procedure where defendant only appears.- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
9. Decree against plaintiff by default bars fresh suit.-(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.”
Appellant’s remedy is to apply before the Family Court for setting aside the judgment. This is because if he prosecutes the appeal he must necessarily be confined to the materials on record in the Family Court. That would seriously prejudice him because he did not adduce evidence nor tested by cross-examination, evidence adduced by respondent-wife. In the context, we note that the appeal was filed in time. As such, appellant-husband in applying to the Family Court for setting aside the judgment must also apply for condonation of delay. We are confident that the Family Court will deal with the applications, if made, in accordance with law.
4. In view of aforesaid, it is needless to mention but we make it clear we have not gone into merits of the case.
5. The appeal is disposed of.
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