Kalu Ram vs Anju Bala

The present revision petition under Section 115 of the Code of Civil Procedure has been preferred against the order dated 24.12.2018, passed by the learned Addl. District Judge, Sangariya (hereinafter referred to as 'the learned trial Court' or 'the learned Court below), vide which the respondent's application under Order IX Rule 13 of the Code of Civil Procedure for setting aside ex-parte decree of divorce dated 6.4.2017 had been allowed.

The facts in brief are that the petitioner-husband had filed a divorce petition under Section 13 of the Hindu Marriage Act on 3.1.2017, which came to be decreed ex-parte by the learned Court below vide its judgment and decree dated 6.4.2017.

When the respondent came to know about the said decree of divorce, she moved an application under Order IX Rule 13 of the Code of Civil Procedure on 1.10.2017 and requested to set aside the ex-parte decree dated 6.4.2017.

The learned Court below allowed the said application filed by the respondent - wife, which was supported by an application under Section 5 of the Limitation Act seeking condonation of delay in filing the application for setting aside the decree.

After considering the material available on record, the learned Court below not only condoned the delay of about 160 days in filing the application under Order IX Rule 13 of the Code of Civil Procedure but has also allowed the application for setting aside by observing that the presumption of service has been wrongly drawn with the following observations:

"8- मूल पत्रावली के अवलोकन से यह स्पष्ट है कि अप्रार्थी कालूरा ने प्रार्थीया के विरूद्ध धारा 13 हिन्दू विवाह अधिनियम 1955 की याचिका दिनांक 03.01.2017 को पेष की। जिसमें दिनांक 22.02.2017 को जरिये डाक तामिल हेतु नोटिस भेजे गये। दिनांक 04.04.2017 जो जारीषुदा तामिल बाद इनकारी रिपार्ट के प्राप्त होने के अंकन पर न्यायालय द्वारा एक पक्षीय कार्यवाही प्रार्थीया के विरूद्ध अमल में लाकर पत्रावली दिनांक 06.04.2017 को साक्ष्य एक तरफा हेतु नियत की गई। जिस पर साक्षी कालूराम के बयान एक तरफा लेखबद्ध कर न्यायालय द्वारा 13 हिन्दू विवाह अधिनियम की याचिका स्वीकार कर अप्रार्थी कालूराम व प्रार्थीया अंजुबाला के मध्य हुए विवाह दिनांक 10.03.2012 को विच्छेद करने का निर्णय व डिक्री एक तरफा पारित की गई।"

Learned counsel for the petitioner calling the order dated 24.12.2018 in question submitted that the learned Court below has erred in passing the order dated 24.12.2018 and setting aside the ex-parte decree. He submitted that the notices upon the respondent-wife were rightly treated to have been served, as she had refused to accept the same. He contended that the learned Court below having recorded the finding that the notices were served, ought not to have allowed the application filed by the respondent.

Having heard learned counsel for the petitioner and upon perusal of the record, I do not find any illegality or irregularity in the order impugned, warranting interference of this Court in its revisionally jurisdiction.

A perusal of the above quoted para no.8 of the impugned order reveals that the notices of the divorce petition were sent to the respondent by way of post, on which an endorsement of refusal was received. When the matter was listed before the Court on 4.4.2017, it drew ex-parte proceedings and placed the matter to 6.4.2017. On 6.4.2017, itself the statements of the husband were recorded and the divorce petition was decreed.

In considered opinion of this Court, at first instance, the notices ought not to have been sent through post. Be that as it may, the trial Court had proceeded in hot haste as noticed above.

If the learned Court below has allowed the application for setting aside ex-parte decree in the interest of justice, after appreciation of material available before it, while finding alleged service effected upon the respondent not to be proper, this Court does not find any jurisdictional error, so as to call for interference under Section 115 of the Code of Civil Procedure.

Every litigant is entitled to a fair chance to defend case and fair trial.

As an upshot of the discussion foregoing, the revision petition fails.

The stay application No.310/2019 also stands disposed of.