IN THE COURT OF MS. SHRUTI CHAUDHARY, LD.M.M.; MAHILA COURT, EAST DIST., KARKARDOOMA COURTS, DELHI.

I.A. NO.____ OF 2023.

IN

CASE NO. ____ OF 2022.

IN THE MATTER OF:

_________________                        : PETITIONER

VERSUS

______________                                           : RESPONDENT

N.D.O.H.:- _________

APPLICATION FOR AND ON BEHALF OF THE APPLICANT / RESPONDENT UNDER ORDER 9 RULE 7 AND 13 TO SET ASIDE THE EX-PARTE PROCEEDINGS / JUDGMENT R/W SECTION 151 OF C.P.C.

MOST RESPECTFULLY SHOWETH :-

1.               That the above noted matter was fixed before this Hon’ble Court on _______ and due to non appearance of the respondent this Hon'ble Court was pleased to proceed ex-parte against the respondent and passed the ex-parte judgment on _________ against the respondent.

2.              It is submitted that the Petitioner wanted to buy a land in the mountains. Respondent had to pay huge amount of Rs. 30 Lacs (Rupees Thirty Lacs) despite all the suffering and injuries inflicted by the Petitioner. The Sale Deed for the 1/ land admeasuring approx. 8 nali was executed exclusively in favour of the Petitioner. Petitioner wanted and insisted to be the sole owner of the land although the Respondent arranged all the required permission from different Govt. authorities for the purchase of the land with lot off running around and difficulty.

3.              It is further submitted that Petitioner on several occasions threatened the Respondent that she would commit suicide and implicate the Respondent for the same. Respondent submits that he has tried his level best to reconcile with the Petitioner but all of his efforts have not only been wasted but have backfired in front of the cruel behaviour of the Petitioner. Petitioner has left no scope for any kind of reconciliation and has harassed the Respondent to the core. Respondent submits that there is no scope for reconciliation. Respondent wishes to legally dissolve this marriage. The Respondent submits that there has been irretrievable breakdown of marriage between the Respondent and the Petitioner. There has been a trail of emails and messages sent by the Petitioner to the Respondent, which clearly envisages the physical and mental cruelty and stress the Respondent is being subjected to by the Petitioner under his marriage. He has no permanent place to stay and was staying with relatives and friends. This all lead to lot of stress for the Respondent and affected his efficiency and productivity. Respondent almost stopped going to office, which impacted his professional commitments and performance. By ______ the Respondent was forced to quit his job with Price Water House due to all these incidents.

4.              It is further submitted that after a great difficulty the Respondent got a job in a much smaller Organization called ______. The career growth of the Respondent was permanently impacted. However, Respondent once again put in all his hard work to regain his professional reputation, which has been destroyed by the Petitioner, by putting him in lot of mental stress. Respondent also took a house on rent in _______ as his new office was situated in _______ only. Petitioner has created huge amount of trouble in the new rented house and the new office of the Respondent that he was asked by his organization to take sabbatical effective _______ till March 2020 without pay. Respondent's company may consider about his employment in the month of April 2020. In other words, Respondent does not have any employment anymore and any source of revenue. Respondent’s reputation and goodwill in professional world is severely tarnished. He had suffered irrevocably. Respondent is in way jobless since then.

5.              It is further submitted that in March 2019, Petitioner approached the Delhi High Court Mediation Centre for pre-lit mediation. Respondent was happy that the Petitioner wants to settle the matter amicably. Petitioner made illogical demands regarding finance. Looking into the situation as the Petitioner was expecting a child, Respondent agreed to pay _______ per month for time being. Settlement terms were discussed between the parties, and settlement agreement was drawn which was also exchanged between the parties. After everything was finalized, Petitioner because of her malafide intent, refused to sign the Agreement.

6.              It is further submitted that the parties had their second child born on ________. Respondent was present at the time of birth of their Son. Respondent took good care of the Petitioner in the hospital at the time of birth of his children. Petitioner's is so impulsive and erratic in her behavior that just after 10 days of her new born she drove all the way from Noida to Gurugram at 3AM in the morning and came to the Respondent's house leaving her new born and small daughter behind. The Petitioner has been doing this more than often coming to Respondent's Gurugram house at odd hours without informing him. Petitioner keeps stalking the Respondent in Order to disturb his peace and sanity and also to check on him. It is pertinent that Petitioner has not allowed to meet Respondent with his daughter since last more than one year although she kept visiting him in his rented house of _______ on and often unannounced at odd hours.

7.              It is further submitted that as the marriage between the Parties had completely broken and there was no chance of reconciliation, Respondent filed a Petition under Section 13(B) (1) of the Hindu Marriage Act, for divorce before the Family Court, Greater Noida. Petitioner has been defending the matter and has filed an application under Section 24 of the Hindu Marriage Act. Petitioner also filed a separate Petition under Section 125 Cr.P.C. before the Family Court, Greater Noida. Petitioner has also filed a complaint on which an FIR No. 134 of 2022 under Section 498-A, 323 and 504 of IPC, Police Station, ________________, UP has been registered against the Respondent, his widowed mother, his divorced sister, his cousin and his cousin's wife. The FIR is based on the similar allegations and even in the FIR the entire grievances of the Petitioner is that the Respondent is not providing money to her. After a detailed investigation, the police has submitted a Final Report and has held that no case/s is made out against the Respondent, his widowed mother, his divorced sister, his cousin and his cousin's wife. Thereafter on an application by the Petitioner, reinvestigation by the Court of Judicial Magistrate Noida has been directed.

8.              It is further submitted that in the proceedings before the Family Court, Noida on one pretext or the other, the Petitioner delayed in filing her income affidavit. Thereafter, she had been taking adjournments. While all these proceedings were pending, Petitioner filed a Complaint under Section 12 of the Protection of Woman under Domestic Violence Act. On 18.08.2022 Respondent filed an Application under Section 25(2) of the Protection of Woman 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 Application. On the next date of hearing, i.e on 06.10.2022 the Ld. Judge was on leave, and the Counsel for the Respondent herein marked his presence but the same was not recorded.

9.              It is further submitted that in April-May 2023 as there was non -payment of school fees of children, discussion took place among the Parties, and the Parties agreed to pay the school fees jointly. In terms of the arrangement, it was agreed that the Respondent would clear the dues of one of the children and the Petitioner would clear dues of another child. Inspite the fact that the Respondent being jobless, and having no money, he borrowed money from his friends to pay the school fees of his daughter.

10.          It is further submitted that on 02.12.2022, when the matter before the Hon’ble Court was called, the associate of the main Counsel for the Respondent was held up in another Court, and on first call itself, the Hon’ble Court wrongly recording that there was no appearance on the previous date, proceeded ex-parte. On 24.12.2022, the Hon’ble Court was on leave again, the associate of the main Counsel marked his presence. Thereafter the Associate of the main Counsel took up a new job, and while handing over process, inadvertently did not mention of the Order dated 02.12.2022 and mentioned that the matter has been adjourned for further proceedings. Due to multiple cases between the Parties, the present matter remains unnoticed and as Parties were in Mediation since March, 2023. Respondent was appearing in the matter before the Family Court, District East Karkardooma filed by the Petitioner on behalf of the minor children seeking maintenance. Respondent has also moved an application under Order VII Rule 10 on the ground that the Court does not have the territorial jurisdiction. Hence there was no reason for the Respondent not to appear before this Hon’ble Court in the proceedings under Domestic Violence Act.

11.            On 31.05.2023, the matter between the Parties was listed before the Noida Court, when it was mentioned that the present DV Complaint has been disposed of on 27.05.2023. It was shocking for the Respondent that the matter has been disposed while the Parties were in Mediation. Thereafter on 06.06.2023, the Respondent's Counsel applied for certified copy and filed the Appeal against the ex-parte judgment dated 27.05.2023 passed by this Hon’ble Court.

12.           That this Hon’ble Court vide its order dated 27.05.2023 was pleased to decide the petition under Section 12 o DV Act, filed by the Petitioner and passed ex-parte judgment against the Respondent; it is recorded in para 14 that; -

“I deem it fit to grant a monthly maintenance of Rs.1,50,000/- 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 15^th day of every month Arrears are directed to be cleared within 6 months of this order."

13.           That in the aforesaid para, this Hon'ble Court has directed to clear the arrears within six months of the order and the period of six months expires on 27.11.2023. The Petitioner has filed the execution petition and the total outstanding arrears as per Column 7 and 10 of her execution petition is a sum of Rs.3,00,000/- (Three Lakh Rupees).

14.          That the said ex-parte order and judgment was came to know when the police person from the Preet Vihar Police visited the residence of the Respondent’s mother at ______________________, Greater Noida, on 01.11.2023 and asked about the Respondent and further said that there is a warrant of arrest against the Respondent _________ in Execution petition bearing -______ filed by the Petitioner. The Respondent had moved an application for cancellation of warrant before this Hon’ble Court and the Hon’ble Court had issued notice and stayed the execution of warrant of arrest till the next date of hearing i.e. 15.12.2023.

15.           That on 04.11.2023, again the Police person came to the above noted address and showed a warrant of attachment of movable and immovable properties in Ex. Crl. No. 96/2023 for a sum of Rs.21,00,000/- (Twenty-one Lakh Rupees).

16.          That as per the order dated 27.05.2023, this Hon'ble Court had directed the Respondent to pay the arrears in six months completing on 27.11.2023 and the Execution Petition filed by the Petitioner is for a sum of Rs.3,00,000/- (Three lakh rupees). The Petitioner has misled this Hon'ble court and misrepresented the facts and has played a fraud on the court, and thus has got a warrant of attachment of movable/ immovable properties for a sum of Rs.21,00,000/- executed through SDM and the two address are that _________________ Gurgaon, Haryana, And ________________________, Noida.

17.           That in the warrant of attachment of movable and immovable properties, the above two noted addresses are mentioned but the police person has visited the residence of the JDV mother at ______________________, Greater Noida, Uttar Pradesh, to harass the old widow mother. It further shows the connivance between the Petitioner and the police persons.

18.          That further, the Petitioner filed an old salary slip of January 2018 of the Respondent to mislead this Hon'ble Court, and concealed the material fact that the Respondent is unemployed, and he is completely in debt.

19.          That the Petitioner herself stated in her section 12, Domestic Violence Petition that "that the complainant and both the minor children are residing in Flat no. ______________." And in the affidavit, she has stated that she is temporarily residing at _____, ________, Delhi.

20.         That the Respondent has no permanent place to stay in Delhi, Noida or Gurgaon, he is homeless, so in these circumstances, he requested his first cousin brother, namely _________, to kindly permit the Respondent to use his residence address for the correspondence purpose. That is the reason the Respondent provides this address in the affidavits. That no process server has ever visited this address because, the process server never met Respondent first cousin, _________. 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 malafidely not binding the order passed by this Hon'ble Court dated 27.05.2023.

21.           That this Hon’ble court may be pleased to appreciate that there have been appearances by the respondent from the institution of this petition and his non appearance on some date of hearings was due to justifiable reasons.

22.          That in adversarial system, a party should be given adequate opportunity to participate in the proceedings and processual law should not be construed in a manner so as to leave the party helpless. Processual law has to do substantial justice and is always subservient to and is an aid of justice. It should not be construed in a manner to obstruct a party from pleading its case and representing himself.

23.          That the intention of the respondent is Bonafide as he has been making appearances in the past even when his previous counsel was not appearing. That the respondent is an honest citizen of the country and respects the Indian judicial system.

24.         That non-appearance of the respondent is neither intentional and nor deliberate, but due to the facts stated as here in above.

25.          That in case the ex-parte proceeding order dated 02.12.2022 is not set aside and the case is not decided on merits by allowing the respondent to take part in the proceedings then the respondent shall suffer an irreparable loss and injury, which cannot be compensated in terms of money.

26.         That no application for condonation of delay is made by the respondent no. 1 as the knowledge of him being ex-parte is on 01.11.2023 and 30 days have not elapsed since the date of knowledge.

PRAYER:-

        It is, therefore, most respectfully prayed that this Hon’ble     Court may be pleased to:-

a.       Allow the present application and further to set-aside the order dated 02.12.2022 / ex-parte judgment dated 27.05.2023 passed by this Hon’ble Court, which will be in the interest of justice.

b.       Such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case be also passed.

DELHI                                    APPLICANT / RESPONDENT

DATED :-           THROUGH

_________________

ADVOCATE

____________________,

__________________________

Email: _________________

Mob. +91_______________

IN THE COURT OF MS. SHRUTI CHAUDHARY, LD.M.M.; MAHILA COURT, EAST DIST., KARKARDOOMA COURTS, DELHI.

I.A. NO.____ OF 2023.

IN

CASE NO. 659 OF 2022.

IN THE MATTER OF:

___________________                             : PETITIONER

VERSUS

______________                                           : RESPONDENT

AFFIDAVIT

Affidavit of __________________________Gurgaon-122018, do hereby solemnly affirm and declare as under:

1.               That I am the respondent in the above case and am thoroughly conversant with the facts and circumstances thereof and am competent to swear this affidavit.

2.              That the contents of accompanying application Under Order 9 Rule 7 read with section 151 of the Code of Civil procedure, have been drafted by my counsel as per my instruction and the contents of the same have been duly read over and understood by me and after fully understanding the contents of the same, I hereby state that the facts therein are all true and correct to my knowledge.

3.              The contents of the said application may kindly be read as part and parcel of this affidavit also as the contents of the same have not been repeated herein for the sake of brevity.

DEPONENT

VERIFICATION :-

Verified at Delhi on ___ day of November, 2023 that the contents of above affidavit are true and correct to my knowledge, no part of it is false and nothing material has been concealed therefrom.

DEPONENT