Jagdish Rai vs Parveen Bala

S.S. Kang, J.—Whether an application under Rule 13 of Order 9 of the CPC for setting aside an ex parte order passed by the Matrimonial Court accepting a petition u/s 9 of the Hindu Marriage Act (for short ''the Act'') is competent, is the solitary question canvassed in this revision petition. A broad brush factual backdrop shall illumine the contours of forensic controversy.

Jagdish Rai, the Petitioner-husband, filed a petition u/s 9 of the Act for restitution of conjugal rights against his wife Smt. Parveen Bala. Notices were sent to her by the Court to appear on 2nd September, 1983. On that day Smt. Parveen Bala did not appear and ex parte proceedings were taken against her. The learned trial Judge recorded the evidence of the Petitioner and accepted the petition u/s 9,--vide order dated 5th November, 1983. On coming to know about the ex parte order, Smt. Parveen Bala filed an application under Rule 13 of Order 9 of the CPC for setting aside the ex parte order of 24th November 1983. In that application she inter alia pleaded that her husband had obtained an ex parte order dated 5th November, 1983 by obtaining a false report from the postman that she had refused to accept the notices sent to her by the Matrimonial Court. In fact she had not refused to take delivery of any registered or other letter from any postman. The ex parte decree had been obtained by playing a fraud on the Court and she had come to know about the same on 16th November, 1983 and filed the application on 24th November, 1983.

Jagdish Rai Petitioner contested the application. He raised many objections that the application had not been filed within time. It was not competent. Only an appeal could be filed against the ex parte decree. On merits, it was averred that Smi. Parveen Bala had been actually served. She had refused to accept notices sent by the Court. The learned trial Judge framed two issues. (1) Whether the application is within time? (2) Whether there are sufficient grounds to set aside the ex parte decree?

Smt. Parveen Bala stepped into the witness-box and supported the averments made in her application. She stated in categoric terms that she had not received any summons or notices from the Court. She had not refused to accept any letter from any postman. She had no knowledge about the proceedings. She came to know about the ex parte decree on 16th November, 1983 and filed the application for setting aside the same on 24th November, 1983. In reply, Jagdish Rai Petitioner made his own statement. He stated that Smt. Parveen Bala had been served in the case by registered post because she had refused to accept the registered letter tendered before her by the postman.

The learned trial Judge rightly concluded issue No. 1 against the Petitioner. The application had been filed within. 30 days of the ex parte decree. So, it was clearly within time.

On merits, the learned Judge held that Smt. Parveen Bala had not been served. The postman had not been produced and the record in the original proceedings u/s 9 of the Act had been destroyed in a fire which broke out in the record-room. Consequently, he set aside the ex parte order. Aggrieved, Jagdish Rai has filed the present revision petition.

It has been contended by Shri Ashok Bhan, Senior Advocate, learned Counsel for the Petitioner, that the Hindu Marriage Act specifically provides for an appeal against the orders passed in proceedings taken out under the Act. The provisions of CPC are applicable only to those matters regarding which there is no provision in the Act itself. Since the Act provides for setting aside orders passed thereunder by an appeal u/s 28 of the Act, an application under Rule 13 Order 9, CPC is not competent. For this submission, he seeks sustenance from a recent decision of a learned Single Judge of Gauhati High Court in Anjan Kumar Kataki Vs. Smt. Minakshi Sarma, .

This argument of the learned Counsel has not commended itself to me Section 21 of the Act provides that subject to other provisions contained in the Act and to such Rules as the High Court may make in this behalf, all proceedings under the Act shall be regulated, as far as may be, by the Code of Civil Procedure. Section 28 of the Act reads as under:

(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of Sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act, u/s 25 or Section 26 shall, subject to the provisions of Sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.

It is manifest from a reading of the two statutory provisions mentioned above that decrees passed in the proceedings under the Act shall be appealable. It is also clear that the proceedings under the Act are governed and regulated by the CPC only. This is, however, subject to other provisions contained in the Act which may have bearing on the issue in question. From a conjoint reading of Sections 21 and 28 of the Act, it becomes apparent that the decrees passed by the Matrimonial Courts are appealable, but the proceedings in the Matrimonial causes are to be carried out in accordance with the provisions of the Code of Civil Procedure. However, these two provisions do not lead to the inference that an ex parte decree passed in a Matrimonial cause under the Act cannot be set aside by the trial Court on an application made under Rule 13 of Order 9 of the Code of Civil Procedure. Section 28 of the Act does not deal with the subject of setting aside the ex parte decrees. For that purpose, recourse has to be taken, by virtue of the provisions of Section 21, to the procedure prescribed by the Code of Civil Procedure. The language employed in Section 28 of the Act is similar to the one used in Section 96 of the Code of Civil Procedure. Therein also it has been enacted that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. It was not contended and could not indeed be done so plausibly by the learned Counsel for the Petitioner that in general law an ex parte decree could not be set aside by the trial Court on an application under Rule 13 of Order 9. It is well settled that a Defendant against whom an ex parte decree is passed has the following courses open to him. He can apply for review; he can appeal from that decree; he can file a revision in cases of small cause Court; he can institute a suit on the ground of fraud; he can move an application under Rule 13 of Order 9. The provisions of Section 28 of the Act do not exclude expressly or by implication the application of Rule 13 of Order 9 of the Code of Civil Procedure, to the ex parte decrees passed under the provisions of the Act. The Punjab High Court in AIR 1924 224 (Lahore) went to the extent of laying down that an application for setting aside an ex parte decree can be filed in the trial Court under Rule 13 of Order 9 even in those cases where an appeal had been filed from the impugned ex parte decree. It seems, that aspect of the matter had not been highlighted in Anjan Kumar Kataki''s case (supra). With greatest respect to the learned Judge I have not been able to persuade myself to concur with the ratio of that decision. I am of the considered view that the application under Rule 13 of Order 9 of the CPC is competent and maintainable to set aside an ex parte decree and Section 28 does not in any way prohibit this course. The question raised is answered in the affirmative.

On merits, the conclusion reached by the learned trial Judge are based on correct facts and do not call for any interference. The revision petition has no merit and is dismissed with costs. Counsel fee Rs. 200.