JUDGMENT
A.P. Choudhri, J.
1. This appeal is directed against the judgment and decree dated May 21, 1988, passed by the Additional Senior Subordinate Judge, Nawanshahar, exercising the powers of the District Judge under the Hindu Marriage Act, 1955 (hereinafter referred to as the Act’) allowing husband’s petition under Section 9 of the Act against the wife.
2. Gurdeep Singh instituted the petition under Section 9 of the Act on January 17, 1985, against Smt. Kuldip Kaur. At one stage, the petition was decreed after striking off defence of the wife by order dated November 8, 1985. That order was set a side by this Court and the case was remanded to the Trial Court with a direction to take proceedings from the stage the wife was asked to pay costs, non-payment of which resulted in her defence being struck out. The case as transferred from Senior Subordinate Judge, Faridkot, to Additional Senior Subordinate Judge, Nawanshahr, district Jalandhar, by order of this Court dated January 30, 1986. Incompliance with the aforesaid orders of this Court, the proceedings were started by the Additional Senior Subordinate Judge, Nawanshahr, and the case was fixed for respondent’s evidence for June 10, 1987. Costs were paid on that day and no witness being present the case was adjourned to August 4, 1987, for respondent’s evidence. On August 4, 1987, the Counsel for Kuldip Kaur made a statement that he had no instructions. The respondent was, therefore, proceeded ex parte and the case was fixed for recording petitioner-husband’s evidence for August 26, 1987. Statement of one witness was recorded on August 26, 1987. Statements of two other witnesses were recorded on September 7, 1987, and the case was adjourned to September 21, 1987. An application under Order 9 Rule 7 CPC for setting aside the ex-parte proceedings was made by the wife on September 21, 1987. It was stated therein that on June 2, 1987, her brother received serious injuries in a bomb blast near Friends Theatre Jalandhar. He remained admitted to the Civil Hospital, Jalandhar, for a long time and, in fact, his condition remained precarious and the applicant Kuldip Kaur along with other members of the family could not, in the circumstances, instruct her Counsel at Nawanshahr, nor could she attend the case in person. She further stated that unless she was allowed to contest the petition her entire life would be ruined. The application was contested. It was stated that it was barred by limitation and that applicant had absented herself mala fide in order to prolong the proceedings.
3. the learned Trial Court framed the following issues :
1. Whether there are sufficient grounds for the setting aside of the ex parte proceedings ? OPA.
2. Whether the application is within time ? OPA
3. Relief.
By order dated May 13, 1988, the Trial Court dismissed the application under Order 9 Rule 7 CPC with a finding that there was no sufficient ground for setting aside the ex-parte proceedings and also that the application was barred by limitation. On the basis of the evidence of the petitioner, referred to in the earlier part of this order, the main petition under Section 9 of the Act was decreed by judgment and decree dated May 21, 1988. Hence this appeal.
4. The main contention of Mr. Battas, learned Counsel for the wife-appellant, is that she is entitled to assail the order dated May 13 1988 whereby the Trial Court dismissed the appellant’s application under Order 9 Rule 7 CPC Mr. Battas contended that a perusal of the order sheet would show’s that the case had all along been hotly contested. He emphasized that the fact that appellants brother was seriously injured in a bomb blast and he remained hospitalised for a long time had not been disputed. In addition to attending to her brother, the appellant had also to attend to her school besides the criminal case at Ludhiana, and in the totality of circumstances she failed to contact her Counsel at Nawanshahr. The Trial Court should have taken a liberal view of the matter and while the case was still pending the ex parte proceedings should have been set aside. Mr. Battas highlighted the significance of the decree for restitution of conjugal rights, in so far as the appellant is concerned, as it was likely to be followed by a decree for dissolution of marriage.
5. The contention of Mr. Yogesh Goyal learned Counsel for the respondent husband on the other hand is that admittedly the application under Order 9 Rule 7 CPC was made after the adjourned date and n any case, it was made after the expiry of 30 days and it was, therefore, barred by limitation. He also contended that the appellant had failed to make out sufficient cause for setting aside the ex parte order.
6. After hearing learned Counsel for both the parties I am of the view that the order dated May 13, 1988, dismissing the application under Order 9 Rule 7 CPC cannot be sustained. The question of limitation under Order 9 Rule 7 CPC is not res Integra. In Trilok Siugh v. Smt Ganga Devi and Anr., 1983(1) RLR 688 it was observed by a learned Single Judge of this Court that the period of 30 days under Articles 123 of the Limitation Act, 1963, applies only to an ex parte decree and not to ex parte proceeding It was further observed that, in fact, there was no limitation provided for setting aside the ex parte proceedings, which depended upon the discretion of the Judge on the peculiar facts of each case. The above observation was reiterated and followed in a later decision of this Court in Siri Chand v. Ram Dhan and Anr., 1989 (1) Revenue Law Reporter 481 In Delhi Development Authority v. Shanti Devi and Anr., AIR 1982 Delhi 159 it was held that there was no rule that an application under Order 9 Rule 7 CPC is to be filed within 30 days from the date of the order proceeding ex parte. In Palani Nathan v. Devanai Ammal (1989) 2 Madras Law Journal 259, after referring to the case law, it was held that there is no limitation for filing a petition under Order 9 Rule 7 CPC. The finding of the learned Trial Court on issue No. 2 therefore, was set aside.
7. This brings me to a consideration of the next important question, namely whether the appellant had been able to assign good cause for her previous non-appearance. It is settled law that the power to set aside ex parte proceedings has to be liberally exercised in order to advance the cause of justice. It may be pointed out that while the material words in Order 9 Rule 9 and Order 9 Rule 13 are “sufficient cause,” the expression used in Order 9 Rule 7 is “good cause.” The failure of the appellant in giving instructions to her Counsel was required to be viewed in the totality of facts and circumstances in which the appellant was placed, especially on account of the unfortunate occurrence involving her brother. This, in my view, has resulted in failure of justice and accordingly the order dated May 13, 1988, passed by the learned Additional Senior Subordinate Judge, Nawanshahr is set aside. As a result, the final order passed in the petition under Section 9 of the Act is also set aside. The case is remanded to the Additional Senior Subordinate Judge, Nawanshahr with the direction to readmit the same against its original number and proceed according to law from the stage of the proceeding prior to August 4, 1987, when the appellant was proceeded ex parte. As this is a matrimonial matter and has been considerably delayed, it is further directed that the Trial Court shall decide the matter within six months from the date of receipt of records. The Trial Court record be sent there at once. The parties through their Counsel are directed to appear before the Additional Senior Subordinate Judge, Nawanshahr, on September 8, 1993.