1. Heard learned counsel for the petitioner.

2. The petitioner-husband has preferred this Civil Revision Petition under Section 115 of the Code of Civil Procedure against the impugned order dated 21.1.2011 passed by District Judge, Alwar in Civil Misc.Case No.41/13/10 whereby the learned Court below by allowing an application under Order 9 Rule 13 CPC filed by the non-petitioner-wife has set aside the exparte decree dated 27.8.2009 passed in Matrimonail Case No.29/2008.

3. Brief relevant facts for the disposal of this petition are that the petitioner filed a petition under Section 13 of the Hindu Marriage Act (hereinafter to be referred as the Act) against his wife-non-petitioner with a prayer to dissolve the marriage between the parties said to be solemnised on 13.12.2006 on various grounds. That petition was registered as Matrimonial Case No.29/2008 and in compliance of the notice issued, non-petitioner appeared before the Court below through her counsel and also filed reply to the petition. Subsequently, she and her counsel failed to appear and, therefore, on 29.5.2009 an order was passed to proceed exparte against the non-petitioner and thereafter evidence of the petitioner was recorded and ultimately on 27.8.2009 an exparte judgment and decree for divorce was passed dissolving the marriage between the parties. With a prayer to set aside the exparte decree dated 27.8.2009, the non-petitioner-wife filed an application under Order 9 Rule 13 CPC alongwith an application under Section 5 of the Limitation Act to which the petitioner filed his reply and the learned Court below vide impugned order dated 21.1.2011 by allowing the same set aside the exparte decree. Feeling aggrieved, the petitioner-husband is before this Court by way of this civil revision petition.

4. Assailing the impugned order, learned counsel for the petitioner has raised the following grounds:-

(i) Although, the non petitioner failed to show any sufficient cause for her or her counsels absence during pendency of the main case in which subsequently exparte decree was passed on 27.8.2009 and also to show any sufficient cause to explain the delay made in filing the application under Order 9 Rule 13 CPC, the learned Court below without assigning any reasons allowed both the applications and set aside the exparte decree. According to learned counsel for the petitioner the meaning of the word sufficient is adequate or enough in as much as may be necessary to answer the purpose intended and if a party to the suit has acted in a negligent manner or there was a lack of bona fide on his part in view of the facts and circumstances of a case, the discretion vested in the Court under Order 9 Rule 13 CPC or Section 5 of the Limitation Act cannot be exercised in favour of such a party.

(ii) After passing of the exparte decree, the petitioner after the expiry of period of limitation prescribed for filing appeal against the decree, bonafidely remarried and, therefore, the application filed by the non-petitioner under Order 9 Rule 13 CPC stood infructuous but the learned Court below without considering this fact in a right perspective rejected the same only on the ground that the petitioner remarried on the next day on which the information about the application filed under Order 9 Rule 13 CPC was given to him.

In support of his submissions, learned counsel for the petitioner relied upon the cases of Parimal Vs. Veena alias Bharti reported in (2011) 3 SCC 545 [LQ/SC/2011/219] , Surendra Kumar Vs. Kiran Devi reported in AIR 1997 (Raj.) 63 [LQ/RajHC/1997/43] , Rajendra Prasad Yadav Vs. Prem Lata reported in 1996 (3) WLC 505, Smt.Lata Kamat Vs. Vilas reported in (1989) 2 SCC 613 [LQ/SC/1989/190] and Babita Laul Vs. Vijay Laul reported in 2009 (4) CCC 542.

5. I have considered the submissions made on behalf of the petitioner and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law.

6. My findings with reasons on each of the grounds raised by the petitioner are as follows:-

(i) From the perusal of impugned order, it is clear that the learned Court below after considering the application filed by the non petitioner under Order 9 Rule 13 CPC and the one filed under Section 5 of the Limitation Act alongwith the supporting affidavits as well as the reply filed by the petitioner to the applications and the supporting affidavit and also the case law submitted by the non-petitioner in support of her pleas taken in the respective applications, came to a definite finding that a party cannot be held guilty for the mistake committed by his counsel. It was further found by the Court that the counsel for the non petitioner did not appear before the Court and he also did not inform the non-petitioner regarding the dates fixed in the case. I am of the view that the findings of the Court below cannot be said to be perverse or infirm in the light of the facts and circumstances of the case. This Court has a very limited jurisdiction under Section 115 CPC. High Court can interfere in an order passed by a subordinate court only when it is found that the Court has exercised its jurisdiction illegally or with material irregularity or it has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested. A subordinate Court has jurisdiction under Order 9 Rule 13 CPC and under Section 5 of the Limitation Act to set aside an exparte decree and to condone the delay caused in filing such application if to the satisfaction of Court sufficient cause is shown by the applicant. Whether the applicant has shown sufficient cause or not will depend upon facts and circumstances of each case. It is well settled that if a subordinate Court after a judicious consideration has exercised a discretion vested in it, the Court of appeal or revision should not easily interfere in it. In the present case, it cannot be said that the non-petitioner-wife acted in a negligent manner or there was a want of bona fide on her part for not remaining present before the Court below on the dates fixed in the case as she engaged a counsel to appear on her behalf. It cannot be expected from a party engaging a counsel to appear before a Court and to remain present on each and every date fixed in the case.

(ii) From the facts and circumstances of the present case, it cannot be held that the application filed by the non petitioner under Order 9 Rule 13 CPC stood infructuous only on the ground that the petitioner has remarried on 24.3.2010. From the impugned order, it is clear that notice issued for the application was served upon the petitioner on 23.3.2010 whereas he married on the next day i.e. 24.3.2010 according to Arya Samaj Customs and Usages. The fact of remarrying on the next day of service of notice upon the petitioner clearly an indication of the fact that the second remarriage is totally malafide and it was performed only to defeat the application filed by the non petitioner-wife.

Section 15 of the Hindu Marriage Act provides that:

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

An analysis of this provision makes it clear that after passing of a decree of divorce dissolving marriage between the parties, either party to the marriage can lawfully remarry in the following circumstances:-

(i) immediately after passing of the decree of divorce without any waiting period, if there is no right of appeal against the decree by which the marriage has been dissolved.

(ii) If there is such a right of appeal, the time for appealing has expired without an appeal having been presented. According to Section 28 of the Act a period of 30 days has been provided within which an appeal has been filed against a decree of divorce. Therefore, in a case in which a decree of divorce has been passed dissolving the marriage between the parties and the aggrieved party does not file an appeal within the period of 30 days as prescribed by Section 28 of the Act, the other party, on the expiry of such period of 30 days, has a right to lawfully remarry.

(iii) In a case an appeal has been presented and the same has been dismissed, any of the party to the decree is entitled to marry again after dismissal of such an appeal. That means during pendency of appeal none of the party is entitled to remarry.

It has not been disputed by learned counsel for the petitioner that in a case in which exparte decree of divorce has been passed by the Court, provisions of Order 9 Rule 13 CPC are applicable and the party against whom the exparte decree has been passed has a right to file an application under this provision for setting aside the exparte decree. Although, Section 15 of the Act does not refer to an application filed under Order 9 Rule 13 CPC but in my view on the analogy of an appeal as referred in this section, the provisions of Order 9 Rule 13 CPC are also applicable and in view of that, if Section 15 of the Act is further analyzed, the circumstances in which a party to the decree of divorce can lawfully remarry emerges as follows:-

(i) If an application under Order 9 Rule 13 CPC for setting aside an exparte decree of divorce is not filed within the period of 30 days as prescribed in Article 123 of Limitation Act, the other party in whose favour exparte decree has been passed has a right to lawfully remarry after the expiry of period of 30 days.

(ii) In a case in which an application under Order 9 Rule 13 CPC has been filed, no party to the decree is entitled to lawfully marry again unless that application has been dismissed. That means during pendency of the application neither of the party is entitled to marry again.

If in the light of the legal position as emerging from the discussion made above, facts and circumstances of the present case are considered, the submissions made on behalf of the petitioner cannot be legally sustained. From the material available on record, which has not been disputed even by the learned counsel for the petitioner, it appears that the notice issued for the application filed under Order 9 Rule 13 CPC was served upon the petitioner on 23.3.2010 and he married again on next day i.e. 24.3.2010. It is thus, clear that on 24.3.2010 when the petitioner remarried in accordance with Customs and Usages of Arya Samaj, the application under Order 9 Rule 13 CPC filed by the non petitioner was pending and, therefore, the petitioner was not entitled to lawfully marry again. Therefore, this contention of learned counsel for the petitioner is also not legally tenable that the application for setting aside the exparte decree stood infructuous as soon as the petitioner married again on 24.3.2010. In the facts and circumstances of the present case, the case law relied upon by the petitioner is of no help as in none of the cases it has been held that such application shall stand infructuous even if a party to the decree marriage again even during pendency of the application filed under Order 9 Rule 13 CPC.

7. The net result of all this discussion is that none of the grounds taken by the petitioner can be said to be lawful requiring interference in the impugned order by this Court. I am of the considered view that in a case in which an exparte decree has been passed against the wife and question of dissolving of a lawful marriage is involved it is but reasonable that opportunity of hearing has to be given to the affected party and efforts should be made that the petition is decided after hearing both the parties.

Consequently, the revision petition being meritless is, hereby, dismissed, but without any order as to costs. Stay application also stands dismissed.