Application under Order 9 Rules 7 and 13 CPC to set aside ex-parte proceedings in DV Act maintenance case
0 of 72 blanks filled
IN THE COURT OF Name of the presiding Judge, LD. MM, Court name and locality
I.A. NO. IA number OF 2023
IN
CASE NO. Case number OF 2022
IN THE MATTER OF:
Petitioner's name: PETITIONER
VERSUS
Respondent's name: RESPONDENT
N.D.O.H.: Next date of hearing
APPLICATION ON BEHALF OF THE APPLICANT / RESPONDENT UNDER ORDER IX RULES 7 AND 13 READ WITH SECTION 151 OF THE C.P.C. TO SET ASIDE THE EX-PARTE PROCEEDINGS / JUDGMENT
MOST RESPECTFULLY SHOWETH:-
1.That the above-noted matter was fixed before this Hon'ble Court on Date matter was fixed before court, and owing to the non-appearance of the Respondent, this Hon'ble Court was pleased to proceed ex-parte against the Respondent and pronounce the ex-parte judgment dated Date of ex-parte judgment against the Respondent.
2.It is submitted that the Petitioner desired to purchase land in Location of land purchased, and the Respondent was obliged to pay a substantial sum of Amount paid for the land (₹) despite the suffering and injuries inflicted upon him by the Petitioner. The Sale Deed in respect of the land admeasuring approximately Area of land (approx.) was executed exclusively in favour of the Petitioner. The Petitioner insisted upon being the sole owner of the land, although the Respondent, after considerable running about and difficulty, arranged all the requisite permissions from the various Government authorities for the purchase of the said land.
3.It is further submitted that on several occasions the Petitioner threatened the Respondent that she would commit suicide and implicate the Respondent therein. The Respondent submits that he tried his level best to reconcile with the Petitioner, but all his efforts were not only wasted but backfired in the face of the cruel behaviour of the Petitioner. The Petitioner left no scope whatsoever for any kind of reconciliation and harassed the Respondent to the core. The Respondent submits that there is no scope for reconciliation, and that he wishes to legally dissolve this marriage. The Respondent submits that there has been an irretrievable breakdown of the marriage between the Respondent and the Petitioner. A trail of e-mails and messages sent by the Petitioner to the Respondent clearly evidences the physical and mental cruelty and stress to which the Respondent was being subjected by the Petitioner during the marriage. The Respondent had no permanent place of stay and was living with relatives and friends. This caused the Respondent great stress and affected his efficiency and productivity; he almost stopped going to office, which impacted his professional commitments and performance. By Date respondent quit his job, the Respondent was forced to quit his employment with Respondent's former employer on account of these incidents.
4.It is further submitted that with great difficulty the Respondent secured employment in a much smaller organisation, namely Name of new employer, whereby his career growth was permanently impacted. The Respondent nevertheless put in hard work once again to regain his professional reputation, which had been destroyed by the Petitioner by subjecting him to considerable mental stress. The Respondent also took a house on rent at Location of rented house, as his new office was situated at Location of new office. The Petitioner created great trouble at the Respondent's new rented house and new office, in consequence of which he was asked by his organisation to proceed on sabbatical, without pay, with effect from Effective date of sabbatical till End date of sabbatical. The Respondent's company might consider his employment in Month of employment review by company. In other words, the Respondent has since been without any employment or source of income. The Respondent's reputation and goodwill in the professional world stand severely tarnished and he has suffered irreversibly; the Respondent has effectively been jobless since then.
5.It is further submitted that in Month and year of mediation, the Petitioner approached the Name of mediation centre for pre-litigation mediation. The Respondent was pleased that the Petitioner wished to settle the matter amicably. The Petitioner, however, made illogical financial demands. In view of the situation, and as the Petitioner was then expecting a child, the Respondent agreed to pay Monthly amount agreed to pay (₹) per month for the time being. The terms of settlement were discussed between the parties, and a settlement agreement was drawn up and exchanged between them. After everything stood finalised, the Petitioner, out of her mala fide intent, refused to sign the Agreement.
6.It is further submitted that the parties had their second child, a son, born on Date of birth of second child. The Respondent was present at the time of the birth of the child and took good care of the Petitioner in the hospital at the time of the births of his children. The Petitioner's behaviour is so impulsive and erratic that barely Days after birth of newborn after the birth of her newborn, she drove from Place Petitioner drove from to City of Respondent's house at Time of Petitioner's visit at night, leaving her newborn and her small daughter behind. The Petitioner has done this more often than not, coming to the Respondent's house at City of Respondent's house at odd hours without informing him. The Petitioner continues to stalk the Respondent in order to disturb his peace and sanity and to keep a check on him. It is pertinent that the Petitioner has not allowed the Respondent to meet his daughter for more than a year, although she kept visiting him at his rented house at Rented house address, often unannounced and at odd hours.
7.It is further submitted that as the marriage between the parties had completely broken down and there was no chance of reconciliation, the Respondent filed a Petition under Section 13(B)(1) of the Hindu Marriage Act for divorce before the Family Court at Location of Family Court (divorce). The Petitioner has been defending the said matter and has filed an application under Section 24 of the Hindu Marriage Act. The Petitioner also filed a separate Petition under Section 125 Cr.P.C. before the Family Court at Location of Family Court (maintenance). The Petitioner has also filed a complaint upon which FIR No. FIR number under Sections 498-A, 323 and 504 of the IPC, Police Station Police station name (FIR), State where FIR registered, has been registered against the Respondent, his widowed mother, his divorced sister, his cousin and his cousin's wife. The FIR is based on similar allegations, and even therein the entire grievance of the Petitioner is that the Respondent is not providing money to her. After a detailed investigation, the police submitted a Final Report and held that no case(s) was made out against the Respondent, his widowed mother, his divorced sister, his cousin and his cousin's wife. Thereafter, on an application filed by the Petitioner, reinvestigation has been directed by the Court of the Judicial Magistrate, Location of Judicial Magistrate court.
8.It is further submitted that in the proceedings before the Family Court at Location of Family Court (maintenance), the Petitioner, on one pretext or the other, delayed the filing of her income affidavit, and thereafter kept taking adjournments. While these proceedings were pending, the Petitioner filed a Complaint under Section 12 of the Protection of Women under Domestic Violence Act. On Date of application under Section 25(2), the Respondent filed an Application under Section 25(2) of the Protection of Women under Domestic Violence Act on the ground that the Court below does not have territorial jurisdiction to entertain the Complaint. Notice was issued in the said Application. On the next date of hearing, i.e. on Date of next hearing (Judge on leave), the Ld. Judge was on leave; the Counsel for the Respondent herein marked his presence, but the same was not recorded.
9.It is further submitted that in Month and year of school fee discussions, as there was non-payment of the school fees of the children, discussions took place between the parties, and the parties agreed to pay the school fees jointly. In terms of the said arrangement, it was agreed that the Respondent would clear the dues of one child and the Petitioner would clear the dues of the other. Despite being jobless and without money, the Respondent borrowed money from his friends to pay the school fees of his daughter.
10.It is further submitted that on Date of ex-parte order proceeding ex-parte, when the matter was called before this Hon'ble Court, the associate of the main Counsel for the Respondent was engaged in another Court, and upon the first call itself, this Hon'ble Court, wrongly recording that there was no appearance on the previous date, proceeded ex-parte. On the next date, the associate of the main Counsel marked his presence. Thereafter, the said associate took up a new engagement and, while handing over his charge, inadvertently failed to mention the order dated Date of ex-parte order proceeding ex-parte and noted only that the matter stood adjourned for further proceedings. Owing to multiple proceedings between the Parties, the present matter remained unnoticed, particularly as the Parties were in mediation since Month the parties began mediation. The Respondent was regularly appearing in a maintenance petition filed by the Petitioner on behalf of the minor children before the Family Court where the maintenance petition is pending. The Respondent has also filed an application under Order VII Rule 10 CPC on the ground that the said Court lacks territorial jurisdiction. There was, therefore, no reason for the Respondent not to appear before this Hon'ble Court in the proceedings under the Domestic Violence Act.
11.On Date the matter was listed before the Noida Court, when the matter between the Parties was listed before the Noida Court, it was mentioned that the present DV Complaint had been disposed of on Date of ex-parte judgment disposing the DV petition. The Respondent was shocked to learn that the matter had been disposed of while the Parties were in mediation. Thereafter, on Date of applying for certified copy and filing appeal, the Respondent's Counsel applied for a certified copy of the judgment and filed an appeal against the ex-parte judgment dated Date of ex-parte judgment disposing the DV petition passed by this Hon'ble Court.
12.That this Hon'ble Court, vide its order dated Date of ex-parte judgment disposing the DV petition, was pleased to decide the petition under Section 12 of the DV Act filed by the Petitioner and passed an ex-parte judgment against the Respondent. It is recorded in paragraph 14 thereof as under:
•"I deem it fit to grant a monthly maintenance of Rs.Monthly maintenance amount awarded to the Petitioner, from the date of filing of the present petition till further orders, for the maintenance of herself and her two minor children, to be paid by the Respondent. Said amount is directed to be paid into the bank account of the Petitioner before the 15th day of every month. Arrears are directed to be cleared within 6 months of this order."
13.That in the aforesaid paragraph, this Hon'ble Court directed that the arrears be cleared within six months of the order, which period expired on Date by which arrears were to be cleared. The Petitioner has filed an execution petition, and the total outstanding arrears, as per Columns 7 and 10 of her execution petition, are a sum of Rs.Arrears amount claimed in the execution petition.
14.That the Respondent learnt of the said ex-parte order and judgment when a police official from Police station whose official visited the Respondent's mother Police Station visited the residence of the Respondent's mother at Respondent's mother's address and enquired about the Respondent, stating that there was a warrant of arrest against the Respondent bearing Warrant number or date in the execution petition bearing Execution petition number filed by the Petitioner. The Respondent moved an application for cancellation of the warrant before this Hon'ble Court, and this Hon'ble Court issued notice and stayed the execution of the warrant of arrest till the next date of hearing, i.e., Next date of hearing on the warrant cancellation application.
15.That on Date of second police visit showing attachment warrant, the police official again came to the above-noted address and showed a warrant of attachment of movable and immovable properties in Execution criminal case number for a sum of Rs.Amount in the warrant of attachment.
16.That as per the order dated Date of ex-parte judgment disposing the DV petition, this Hon'ble Court directed the Respondent to pay the arrears within six months, expiring on Date by which arrears were to be cleared, and the execution petition filed by the Petitioner is for a sum of Rs.Arrears amount claimed in the execution petition. The Petitioner has misled this Hon'ble Court, misrepresented the facts and played a fraud upon the Court, and has thereby procured a warrant of attachment of movable/immovable properties for a sum of Rs.Amount in the warrant of attachment, executed through the SDM, in respect of two properties situated at First property address (Gurgaon), Gurgaon, Haryana, and Second property address (Noida), Noida.
17.That although only the above two addresses are mentioned in the warrant of attachment of movable and immovable properties, the police official visited the residence of the Respondent's mother at Respondent's mother's address, thereby harassing an elderly widow. This demonstrates the connivance between the Petitioner and the police officials.
18.That the Petitioner further filed an old salary slip of the Respondent for Period of the old salary slip filed by the Petitioner in order to mislead this Hon'ble Court, and concealed the material fact that the Respondent is unemployed and is entirely burdened with debt.
19.That the Petitioner herself stated in her petition under Section 12 of the DV Act that "the complainant and both the minor children are residing in Flat No. Flat number where complainant resides", and in her affidavit she stated that she is temporarily residing at Complainant's temporary address, Delhi.
20.That the Respondent has no permanent place of stay in Delhi, Noida or Gurgaon and is effectively homeless. In these circumstances, he requested his first cousin brother, namely Cousin brother's name, to permit the Respondent to use his residential address for the purpose of correspondence, and that is the address furnished by the Respondent in his affidavits. No process server ever visited that address, as the process server never met the Respondent's first cousin, Cousin brother's name. It is also pertinent to mention that nobody can enter the main gate of the apartment complex without the permission of the owner. The Petitioner is nevertheless, mala fide, refusing to abide by the order passed by this Hon'ble Court dated Date of ex-parte judgment disposing the DV petition.
21.That this Hon'ble Court may be pleased to appreciate that the Respondent has been appearing since the institution of the present petition, and his non-appearance on certain dates of hearing was due to justifiable reasons.
22.That in an adversarial system, a party ought to be afforded an adequate opportunity to participate in the proceedings, and procedural law ought not to be construed in a manner that leaves a party helpless. Procedural law is designed to further substantial justice and is always subservient to, and an aid of, justice; it should not be construed so as to obstruct a party from pleading its case and representing itself.
23.That the intention of the Respondent is bona fide, as he has made appearances in the past even when his previous Counsel was not appearing. The Respondent is an honest citizen of the country and respects the Indian judicial system.
24.That the non-appearance of the Respondent was neither intentional nor deliberate, but was due to the facts stated hereinabove.
25.That if the ex-parte proceedings pursuant to the order dated Date of ex-parte order proceeding ex-parte are not set aside and the case is not decided on merits by allowing the Respondent to participate in the proceedings, the Respondent shall suffer irreparable loss and injury which cannot be compensated in terms of money.
26.That no application for condonation of delay is required to be filed by the Respondent, as he gained knowledge of the ex-parte proceedings only on Date of first police visit regarding the warrant, and a period of thirty days has not elapsed since the said date of knowledge.
PRAYER:
It is, therefore, most respectfully prayed that this Hon'bleCourt may be pleased to:
a.Allow the present application and, further, set aside the order dated Date of ex-parte order proceeding ex-parte and the ex-parte judgment dated Date of ex-parte judgment disposing the DV petition passed by this Hon'ble Court, in the interest of justice.
b.Pass such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
DELHIAPPLICANT / RESPONDENT
DATED:THROUGH
Advocate's name
ADVOCATE
Advocate's address line 1,
Advocate's address line 2
Email: Advocate's email
Mob. +91Mobile number
IN THE COURT OF Name and designation of the court
I.A. NO.IA number OF 2023.
IN
Case number.
IN THE MATTER OF:
Petitioner's name: PETITIONER
---
VERSUS
Respondent's name: RESPONDENT
AFFIDAVIT
Affidavit of Deponent's name, Deponent's address and pincode, who do hereby solemnly affirm and declare as under:
1.That I am the respondent in the above-mentioned case and am thoroughly conversant with the facts and circumstances thereof, and am competent to swear this affidavit.
2.That the accompanying application under Order 9 Rule 7 read with Section 151 of the Code of Civil Procedure, 1908, has been drafted by my counsel as per my instructions. The contents thereof have been duly read over and explained to me, and having fully understood the same, I state that the facts stated therein are true and correct to my knowledge.
3.That, for the sake of brevity, the contents of the said application have not been repeated in this affidavit; the contents of the said application may kindly be read as part and parcel of this affidavit.
DEPONENT
VERIFICATION :-
Verified at Place where the affidavit is verified on this Date of verification that the contents of the above affidavit are true and correct to my knowledge, that no part of it is false, and that nothing material has been concealed therefrom.
DEPONENT