1 2025:CGHC:40039-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 365 of 2024 Jasveer Kaur Wd/o Late Baldev Singh Gunna aged about 65 years, R/o Govind Nagar, House No. 9/1, City Station, Pandri, Tehsil and District- Raipur, (C.G.) ... Appellant Versus Gurmel Singh Saini S/o Late Gurucharan Singh Saini aged about 60 years, R/o Farmer House, in front of Bank of Baroda, Shyam Nagar, Main Road, Telibandha, Ravigram, Tehsil and District- Raipur (C.G.) ... Respondent For Appellant : Mr. Arpan Verma, Advocate. For Respondent : None. Hon'ble Smt. Justice Rajani Dubey, J. Hon’ble Shri Justice Amitendra Kishore Prasad, J. Judgment on Board Per Rajani Dubey, J. 11.08.2025 1. Heard learned counsel for the appellant on admission. 2. This appeal is led by the appellant/applicant against the impugned judgment dated 14.06.2024 passed by learned First Additional Principal Judge, Family Court, Raipur, Digitally signed by RAVVA UTTEJ KUMAR RAJU 2 (C.G.) in CMC No. 121/2022, whereby the learned Family Court has allowed the application of respondent led under Order 9 Rule 9 read with Section 151 of CPC. 3. Brief facts of the case as adumbrated by the appellant is that the respondent has preferred a plaint against the present applicant for declaration of the engagement between the parties as null and void to return back the money received as maintenance by wife despite not being married. The plaint preferred by the respondent is completely baseless and without any substance and the same has been preferred just to misuse the remedy available to him and to harass the applicant and the respondent is very well aware of the relief which he is seeking in his plaint as it would not be granted by the learned trial Court as there is no evidence available with him regarding his claim, therefore he had intentionally started to not appear before the Court and remained absent on various dates. On 19.07.2022, the matter was again listed for the recording of the evidence, and the present applicant was present on the said date but the respondent has submitted the condonation application for absence before the court on the ground that he was su5ering from COVID-19, whereby his medical report was produced before the Court in which it was stated that the respondent was tested COVID-19 positive and he has 3 been in the isolation as per the direction of the government. 4. Learned trial Court after going thoroughly to the medical report produced by the respondent regarding COVID-19, found that the blood sample of the respondent was taken on 02.07.2022 and the result of the said sample was given on the same date i.e., 02.07.2022 whereby it has been found that the respondent is su5ering from COVID- 19 positive. It was also observed by the learned trial Court that on 19.07.2022 the matter was listed for recording of the evidence and total 17 days has been passed since the report of COVID-19 came positive of the respondent, as per the government guidelines/directions only 14 days of isolation is mandatory for a person to recover, as such it is evident that the respondent was intentionally not making his appearance before the Court just to avoid giving the maintenance to the applicant and subsequently the application for condonation of absence was rejected by the learned Family Court and the matter was dismissed for want of prosecution on 19.07.2022. Thereafter, the respondent has preferred an application on 18.08.2022 under Order 9 Rule 9 read with Section 151 of Code of Civil Procedure for restoration of case No. 40/2014. The present applicant/appellant has also led reply the said application on 03.07.2023, but the said reply of the 4 present appellant/applicant was not considered by the learned Court and the application preferred by the respondent for the restoration was allowed on 14.06.2024 vide Annexure A/4. Hence, this appeal preferred by the appellant. 5. Learned counsel for the appellant/non-applicant submits that the impugned order is illegal, erroneous and contrary to law. The learned Family Court has committed material irregularities and illegalities while considering the application under Order 9 Rule 9 read with Section 151 of CPC and the plant preferred by the respondent are baseless and without any substance, where the respondent has no possibility to get any relief from the learned court and to prevent the outcome of the matter the respondent deliberately did not appear before the Court. The respondent has not produced any documents relating to his medical treatment in isolation, the complete ground taken on the part of medical treatment is completely misleading and without any substance. Apart from the COVID-19 report no other documents were produced by the respondent regarding the medical treatment taken by him nor any report was produced where it can be shown that the respondent need to take a bed rest even after completing the isolation period. The learned Family Court on order dated 19.07.2022 passed in 5 case No. 30/2021 by correctly dismissing the case of respondent considering the material on record and also considering the act of being absent before the court intentionally. The reply of applicant was not considered by the learned Court while passing the impugned order. The respondent has failed to show su?cient cause for their non-appearance on the date of dismissal, as required under Order 9 Rule 9 of CPC. The respondent has history of non-appearance or delaying tactics in the case, which shows a pattern of disinterest or lack of diligence. The reasons provided by the applicant/respondents for their absence are frivolous, vague, or not supported by any credible evidence. The respondent has not provided any su?cient or credible medical evidence to support the claim of illness or incapacity on the date of non- appearance. As such, the impugned order is liable to be set aside. 6. We have heard learned counsel for the appellant and perused the material available on record including the impugned order dated 14.06.2024 passed by the learned trial Court. 7. It is clear from document led by respondent Gurmel Singh in Civil Suit against both the appellants for declaration before the learned Family Court which was registered as Civil Suit No. 40/2014. As per order sheet 6 led by the appellant on 19.07.2022, the respondent herein did not appear before the learned Family Court and application was led by the applicant on this ground that he has tested COVID -19 positive and he is in home isolation. However, the learned trial Court nds that the application is not bona de and dismissed the application for non-appearance and also dismissed the case of respondent in default. The respondent led application under Order 9 Rule 9 on 18.08.2022 for restoration of civil suit and the learned trial Court after hearing both the parties allowed the application of respondent and suit No. 40/2014 was restored to its original number and case was xed for further proceedings on 16.07.2024. 8. The main objection of the appellant is that the learned trial Court did not appreciate documents led by appellant and allowed the application of the respondent without any bona de reason. So, the impugned order dated 14.06.2024 is liable to be set aside. 9. Order 9 Rule 9 of the Code of Civil Procedure, 1908 is provided as under:- Appearance of Parties and Consequence of non- appearance 9. Decree against plainti by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under rule 8, the plainti5 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 7 dismissal aside, and if he satises the Court that there was su?cient 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 t, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. 10. The learned trial Court nds that on 19.07.2022, the respondent led application for his non-appearance and also led medical documents, so the learned trial Court nds that the absence of respondent is bona de and allowed the application of the respondent led under Order 9 Rule 9 of CPC. It is also clear from the documents led by the appellant therein that the case was dismissed by the learned trial Court on 19.07.2022 and the application for restoration was led by the respondent on 18.08.2022. As such, it is clear that without any long delay the application was led by the respondent. The learned trial Court observed in para 8 of the impugned order which reads as under:- “8. vkosnd xqjesy flag lSuh }kjk vkosnu ds leFkZu esa “kiFki= izLrqr fd;k x;k gSA ,e-ts-lh= 30@2021 xqjesy flag lSuh fo:} tlchj dkSj ds vfHkys[k ds ifj”khyu ls nf”kZr gS fd fnukad 19-07-2022 dks vkosnd dh vksj ls izLrqr gkftjh ekQh vkosnu esa vkosnd dk dksfoM&19 ls xzflr ,ao vkblksys”ku esa gksuk mYysf[kr gSA ;g Lfkkfir fof/k gS fd izdj.k dk xq.k&nks’k ds vk/kkj ij fujkdj.k fd;k tkuk pkfg,A vkosnd dk izdj.k dh lquokbZ fnukad 19-07-2022 dks vuqifLFkr jgus dk ln~Hkkfod dkj.k nf”kZr gksrk gSA” 11. We did not nd any illegality or irregularity in the said 8 order, so this appeal led by the appellant, the same is liable to be and is hereby dismissed at admission stage itself without issuing any notice to the other party. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge U. K. Raju