Jaspal Kaur vs Manjit Singh

N.K. Mody, J.—Being aggrieved by the order dated 26.10.2002 passed by District Judge, Neemuch in MJC case No. 69/2002 whereby application filed by the appellant under Order 9 Rule 13, CPC for setting aside ex parte decree passed on 19.7.1988 in Civil Suit No. 33/1987 (Hindu Marriage case) has been dismissed, the present appeal is filed.

Short facts of the case are that marriage took place between the parties on 14.6.1984. The respondent filed a suit for divorce against appellant on 7.8.1987 which was numbered as Hindu Marriage case No. 33/1987. This case proceeded ex parte and decree for divorce was passed on 19.7.1988. After passing of the decree the appellant filed an application under Order 9 Rule 13, CPC on 21.12.1999 which was registered as MJC case No. 69/2002. The application was contested by the appellant on various grounds including on the ground that application was barred by law of limitation. After recording the evidence, learned Court dismissed the application vide order dated 26.10.2002 against which present appeal has been filed.

Learned Counsel for the appellant submits that appellant was having no knowledge about the ex parte decree. It is submitted that appellant was not allowed to live with her husband i.e., respondent herein since May, 1985. It is submitted that appellant filed a suit for restitution of conjugal rights at Ajmer. This case was contested by the respondent and vide order dated 24.7.1989 a decree for restitution of conjugal rights was passed against which respondent filed an appeal before the High Court of Rajasthan at Jaipur. In these proceedings at no point of time it was stated by the respondent that a decree of divorce has already been passed against the appellant. It is further submitted that appellant moved an application for maintenance u/s 125, Cr. P.C. before the Court of Judicial Magistrate, Ajmer which was registered as case No. 268/1990. In this case the appearance was made by the respondent and the case was disposed of vide order dated 25.5.1990, whereby the application filed by the appellant was allowed in part. Being aggrieved by the rest of the application, which was dismissed appellant filed the petition before the High Court of Rajasthan at Jaipur, which was registered as case No. 268/ 1990 and was disposed of vide order dated 10.9.1991. This case was also contested by the respondent but it was not brought to the notice of the Court or the appellant that there was a decree of divorce against the appellant.

It is further submitted by the appellant that respondent has submitted the reply of the application filed under Order 9 Rule 13, CPC, wherein the respondent has mentioned that respondent lived with the appellant between 13.4.1989 and 17.10.1989 at Udaipur. It is submitted that looking to the conduct of respondent there was no occasion for appellant to know that there was an ex parte decree of divorce against the appellant. So far as limitation is concerned it was submitted that the appellant got knowledge of ex parte decree on 25.11.1999 from the reply of the petition filed by the respondent in response to the petition filed by the appellant under Sections 18 and 20 of Hindu Adoption and Maintenance Act and immediately thereafter within the prescribed limitation under the law, the appellant moved an application under Order 9 Rule 13, CPC on 21.12.1999. It is submitted that in view of this, the ex parte decree passed by learned Trial Court and impugned order deserves to be set aside.

Mr. A.K. Sethi, learned Counsel for the respondent submits that after filing the suit for divorce all the efforts were made to serve the appellant. It is submitted that the petition for divorce was filed on 7.8.1987. Vide order dated 28.9.1987 it was directed to serve the appellant by ordinary process. The process was paid by the respondent which was returned unserved with the endorsement that appellant has gone to Jaipur. Again the same was returned with the postal remark that the appellant was not available. It is submitted that the learned Court below passed the order to serve the respondent by affixture but the same could not be served because the house in which appellant was living was found locked. In the circumstances, the learned Court below directed to serve the appellant by publication and the notice was published in the newspaper "Nav-Jyoti" which is having a wide circulation at Ajmer. Thus, the appellant is duly served. Mr. Sethi, learned Counsel further submits that no ground is made out for condonation of delay and also for settirig-aside the ex parte decree and the learned Court below has rightly rejected the application.

This Court has to decide whether the respondent was duly served and whether sufficient ground is made out for setting aside the ex parte decree. It is submitted that in view of Section 28 of the Hindu Marriage Act the present appeal and also application filed under Order 9 Rule 13, CPC by the appellant is not maintainable as against the ex parte decree for divorce the appeal is provided under the said Act. Learned Counsel for the respondent placed reliance on a decision in the matter of Anjan Kumar Kataki v. Smt Minakshi Sharma reported in AIR 1985 Gua 44, wherein the Guahati High Court has held that the mandatory provisions of Section 28(1) of the Hindu Marriage Act cannot be regulated by Order 9 Rule 13 of the CPC for setting aside an ex parte decree. All the decrees made by the Court in any proceedings under the Hindu Marriage Act also include an ex parte decree. Therefore, only appeal will lie against an ex parte decree as laid down under the mandatory provision of Section 28(1) of the Hindu Marriage Act. An application under Order 9 Rule 13, CPC for setting aside such ex parte decree, is not maintainable. In view of this it was submitted that appeal deserves to be dismissed.

Mr. Sethi further submits that re-marriage of respondent has taken place in the year 1994 and this fact has come on record, therefore, no useful purpose will be served by setting aside the ex pane decree. It is also submitted that ex parte decree was passed in favour of appellant on 19.7.1998, while the re-marriage took place in the year 1994 which shows that respondent has not hurriedly obtained decree of divorce for the purpose of re-marriage. Learned Counsel placed reliance on a decision in the matter of S.P. Srivastava Vs. Smt. Prem Lata Srivastava, , wherein upon the application by the wife of setting aside divorce decree, filed 34 months after decree and after re-marriage of husband, on ground that summons were not served, the Allahabad High Court has held that wife has to prove to the entire satisfaction of the Court that the notice was never served on her and secondly that she got knowledge of the Suit or proceeding on a particular date. It was further observed by the Allahabad High Court that the burden is still more heavy when the application is made after period of limitation provided for moving the application. The appellant must satisfy the Court with the cogent and reliable evidence, the reasons which prevented her from making application in time.

Learned Counsel for the appellant submits that the law laid down by the Gauhati High Court in the matter of Aryan Kumar v. Smt. Mnakshi Sharma (supra), is not a good law as the same has been tested by this Court in the matter of Ravindra Vs. Smt. Pratibha, wherein the decision reported in Anjan Kumar Kataki Vs. Smt. Minakshi Sarma, was not accepted and it was held that application under Order IX Rule 13, CPC for setting aside exparte decree is maintainable. Further reliance was placed by learned Counsel for appellant on a decision of the Hon''ble Supreme Court in the matter of Savitri Pandey Vs. Prem Chandra Pandey, wherein relating to second marriage the learned Apex Court has observed that if during pendency of appeal before the High Court appellant choose to solemnize the second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court as no person can be permitted to flout the Court of justice by his/her overt and covert acts, Reliance was also placed on a judgment of Apex Court in the matter of Shailendra Kumar Vs. State of Bihar and Others, , wherein the defendant alleged to have refused to accept service and process server neither affixed copy of summons and plaint on wall in premises in question, nor making, tendering of summons, the Apex Court held that it amounts to non-service of summons and can be a ground for setting aside the ex parte decree. In this case the Apex Court further observed that even knowledge of pendency of suit cannot be equated with knowledge of date of hearing provided under Second provision of Order 9 Rule 13, CPC.

Mr. Kochatta, learned Counsel for the appellant submits that as per Article 123 of Limitation Act the limitation is prescribed as 30 days for filing the application from the date of the decree or where the summons or notice was not duly served, when the applicant had the knowledge of the decree. Further reliance was placed on the explanation of the Article 123 of Limitation Act, which reads as under:

Explanation � for the purpose of this article, substituted service under Rule 20 of Order 5 of the Code of Civil Procedure, 1908 shall not be deemed to be due service.

In the present case the divorce petition was filed on 7.8.1987. It proceeded ex parte and the decree of divorce was passed in ex parte on 19.7.1988. Appellant got the knowledge from the reply filed by respondent in other litigation filed by the respondent on 25.11.1999 and the application was filed by the appellant under Order 9 Rule 13 CPC on 21.12.1999. Keeping in view the Article 123 of Limitation Act including the Explanation, the Limitation of 30 days for setting aside the ex parte decree will not start from 19.7.1988 as the appellant was alleged to have been served by the substituted service. Apart from this the conduct of the respondent shows that at number of occasions the respondent was supposed to disclose the fact that he has ex parte decree of divorce in his favour but this fact was never disclosed by him. Not only this, respondent has also mentioned that he lived with the appellant w. e. f. 13.4.1989 to 17.10.1989 at Udaipur i.e., after the ex parte decree dated 19.7.1988. So far as maintainability of application under Order 9 Rule 13, CPC is concerned the law laid down in the matter of Anjan K. Kataki by the Gauhati High Court reported in Anjan Kumar Kataki Vs. Smt. Minakshi Sarma, which has not been accepted by this Court in case of Ravindra v. Pratibha (supra), hence it can not be accepted that the application filed by appellant under Order 9 Rule 13, CPC and the appeal filed under Order 43 Rule 1, CPC is not maintainable in view of Section 28, Hindu Marriage Act.

Since the application was filed by the appellant under Order 9 Rule 13 CPC on 21.12.1999 while appellant got the knowledge of ex parte decree on 25.11.1999, the learned Trial Court committed error in dismissing the application filed by the appellant by the impugned order on the ground of limitation. This Court has no hesitation in observing that looking to the conduct of the respondent after the ex parte decree there was no occasion for the appellant to gather the knowledge of alleged ex parte decree.

In view of this the appeal filed by the appellant stands allowed and the impugned order dated 26.10.2002 passed by DJ, Neemuch in Case No. 69/2002 MJC and also judgment and decree dated 19.7.1988, passed in Civil Suit No. 33/ 1987 are set aside.

Also heard on IA No. 9481/2005 which is an application filed by the appellant u/s 24 of the Hindu Marriage Act. In the application it is alleged that respondent is a Professor in Government College, Neemuch and is drawing a salary of Rs. 25,000 per month, In support of this application a document is also filed wherein it is mentioned that the gross salary of respondent is Rs. 24,422 per month and carry home salary of respondent is Rs. 16,622 per month. Learned Counsel for the appellant submits that appellant is getting Rs. 1,000 per month which is deducted from the salary of respondent. Apart from this, there is direction of this Court to pay Rs. 900 but that amount the appellant is not getting regularly. Learned Counsel for the respondent submits that on 9.2.2004 before the Family Court of Ajmer the appellant has alleged that the salary of respondent is Rs. 6,629 while here the appellant is submitting that the salary of respondent is Rs. 24,422 per month.

Without going into the controversy at this stage, as the matter is to be decided by the Family Court where the matter is pending, as an interim measure it is directed that the respondent shall pay a sum of Rs. 5,000 per month to the appellant for the maintenance of appellant and her daughter and the Court below shall fix the maintenance after giving opportunity of hearing to the respondent. Appellant shall be entitled to get this amount deducted from the salary of respondent, so as to avoid inconvenience in getting the amount of maintenance. Parties are directed to remain present before the Court below on 27th of March, 2006. Record of the Court below be sent back immediately. Appellant is directed to file the copy of the application of maintenance which has been filed by the appellant before this Court. Learned Court below shall also decide the amount towards litigation expenses. Respondent shall pay to appellant Rs. 2,000 as the cost.