Hira Lal vs Smt. Rita Kumari

B.K. Roy, J.—In this civil revision application filed by the plaintiff-husband (who got an ex parte degree passed on 28.2.1989 in his Matrimonial Title Suit No. 3 of 1988), a Rule is sought for against an order dated 25.11.1989 passed by the learned 6th Additional District Judge, Nalanda admitting a petition dated 21.8.1989 filed by the opposite party (defendant-wife) under Order IX, Rule 13 and Section 151 of the CPC (hereinafter referred to as ''the Code'') for setting aside the aforementioned ex parte decree alleging fraud practised while serving summons on her which is evident from paragraph 4 of the revision petition.

A separate petition for condoning the delay in filing the petition dated 21.8.1989 was also filed by the opposite party alleging that she learnt of the said ex parte decree only on receipt of a notice on 12.8.1989 issued by this Court in Cr. Misc. No. 7457 of 1989 filed by the petitioner against her in which there was mention of the said ex parte decree passed against her.

The petitioner appeared and filed a petition challenging the maintainability of the said application at the stage of its admission.

The Court below by the impugned order preferred to follow the decision of Madras High Court reported in Saraswathi Ammal Vs. Lakshmi, relied upon on behalf of the opposite party in preference to the decision of Guwahati High Court reported in Anjan Kumar Kataki Vs. Smt. Minakshi Sarma, relied upon by the petitioner, and held the application of the opposite party as maintainable. It also held further that the same has been filed within a period of 30 days from the date of knowledge and is fit to be admitted for its hearing.

Mr. Mihir Kumar Jha, learned Counsel appearing for the petitioner, made two, fold submissions:

(i) The petition in question filed by the wife was not maintainable as Order IX, Rule 13 of CPC was not applicable and the only remedy for her was to file an appeal against the ex parte decree.

(ii) this case should be admitted as there is no decision of our own High Court and that there is conflict of views between the Guwahati and Madras High Courts.

Since there was no decision of our own High Court, I heard Mr. Jha at length and reserved orders.

It is true that a learned Single Judge in Anjan Kumar Kataki Vs. Smt. Minakshi Sarma, held that an application under Order IX, Rule 13 of the CPC for setting aside an ex parte decree is not maintainable in view of Section 28(1) of the Hindu Marriage Act but I am not prepared to agree with the said view.

The Madras High Court in Saraswathi Ammal Vs. Lakshmi, rightly dissented from the view the Guwahati High Court, and held that an application under Order IX, Rule 13 of ''the Code'' applies in cases of an ex parte decree passed under the provisions of the Hindu Marriage Act. I find that Bombay High Court in Sunanda Gundopant Ashtekar Vs. Gundopant Bandopant Ashtekar, had also held that Order IX, Rule 13 of ''the Code'' can be invoked for setting aside an ex parte decree passed under the Act in question. This decision has not been considered by the Guwahati High Court. In Smt. Laxmibai Vs. Keshrimal Jain, , the Madhya Pradesh High Court went to the extent of holding that in an appeal against an ex parte decree u/s 28 of the Act the appellant cannot be allowed to show that he was prevented by any sufficient cause and that he must have recourse to the procedure under Order IX Rule 13 of the Code. The High Court of Iravva Vs. Shivappa Shiddalingappa Angadi, also clearly held, such an application maintainable under Order IX, Rule 13 of ''the Code''. From AIR Commentaries oh the Code of Civil Procedure, 10th Edition Vol. 3 Page 362, it appears that the same view has been taken subsequently by a Division Bench of the Bombay High Court in 1985 MLJ 743 as well as by the Rajasthan, Punjab and Delhi High Courts in cases reported in 1984 194 RLR 1979 Hindu LR 452 and AIR 1985 Del 40 respectively. From Vol. 2 page 590 of the same book it appears that the Delhi High Court had taken the same view earlier also in a case reported in 1982 (2) DMC 377.

I fully agree with the views expressed by the Bombay, Delhi, Madhya Pradesh, Madras and Karnataka High Court holding maintainability of a petition under Order IX, Rule 13 of the Code against an ex parte decree in a matrimonial suit.

The opposite party has also invoked the inherent jurisdiction of the trial court in setting aside the ex parte by labelling her petition also as one u/s 151 of the Code alleging that her signature on the summons was forged and farbicated and that summons were not served on her. Thus, even assuming for an agreement sake that the provisions of Order IX, Rule 13 are not applicable, the opposite party has correctly invoked inherent jurisdiction of the court also.

The apex Court, recently in Sri Dadu Dayal Mahasabha v. Sukhdeo Arya reported in Judgment Today 1989 (4) SC 382 though slightly in a different context, namely, as to whether the trial court has jurisdiction to cancel an order of withdrawal of suit in its inherent power, clearly observed that a court has an inherent power to correct its own proceedings when it was satisfied that in passing a particular order it was misled by one of the parties (see paragraph 6 of the judgment). In Bajrang Rai and Others Vs. Ismail Mian and Others, clearly laid down as follows:

Under the Scheme of the Code, where there is a provision for appeal that does not necessarily bar other remedies for setting aside a decree. For example, Section 96 provides for appeal from a decree unless it is expressly barred. It also provides for an original decree passed ex parte. Nevertheless, provision has been made under Order IX, Rule 13 for setting aside such ex parte decree. The aggrieved party can also apply for review of a decree on, the grounds mentioned in Order XLVII. He can also institute a suit for setting aside the decree on the ground of fraud.

I am, thus, of the view that if the court below comes to a conclusion that a fraud was practised by the process server in that event it shall have jurisdiction to cancel the order directing ex parte hearing of the suit and set aside or recall the ex pane decree.

In the aforementioned view of the matter, I do not see any illegality or impropriety, much less any jurisdictional error, in admitting this petition filed by the opposite party.

Simply because Guwahati High Court has taken a view different from Bombay, Delhi, Karnataka, Madhya Pradesh, Madras, Punjab and Rajasthan High Courts, I do not want to issue a Rule to the opposite party, a wife, who was sought to be divorced by the husband petitioner, under the provisions of the, Hindu Marriage Act, 1956 enacted by and large for the benefit of our female members of the society, to drag her to this Court for passing this very order in her presence more sp when this Court is presently 13 short of its strength and loath with nearly two-three thousand cases for their admissions alone before its different Benches single and Division.

This revision application is, accordingly, dismissed.