Ranjeet Kumar vs Sarla Devi

Milap Chandra, J.—On August 3, 1982, the petitioner filed a petition for divorce u/s 13, Hindu Marriage Act, 1955, (hereinafter to be called the Act). Notice to the non-petitioner was issued for 13.10.1982. It was received unserved. On the request of the petition, it was ordered that the notice be got published in the Statesman, published from Calcutta. Notice for 16.12.1982 was published in the Statesman, of 13.12.1982. The non-petitioner did not put her appearance. Accordingly, it was ordered that the case would proceed ex-parte against her. After recording the statement of the petitioner, the petition was allowed by the Learned District Judge, Bikaner by his order dated April 2, 1983. On 22.8.1983, the non-petitioner moved an application under Order IX Rule 13 and Section 151 C.P.C. for setting aside the ex-parte decree for divorce on the ground that she was not served with the notice and she came to now of the ex-parte decree only on July 24, 1983. The petitioner filed his reply, seriously opposing it. After recording the evidence of the parties, the Learned District Judge allowed the application and set aside, the exparte decree by his order dated March 31, 1987 which has been challenged in this revision petition.

It has been contended by the Learned Counsel for the petitioner Ranjeet Kumar that the provisions of Order IX Rule 13 C.P.C. are not applicable in the proceedings under the Act, the notice of the non-petitioner was duly published in the Statesman of 13.12.1982, it was a due service within the meaning of Order V Rule 20 C.P.C, the non-petitioner had the knowledge of the ex-parte decree and petition moved under Order IX Rule 13 read with Section 151, C.P.C. was time barred. He also contended that the ipetitioner was validly contracted second marriage with one Jyotsna Bachhawat on 16.7.1983 and in her interest also the petition should have been rejected by the Learned District Judge.

The Learned Counsel for the non-petitioner Mst. Sarla Devi has duly supported the order under revision.

The first question for consideration in the case is whether the non-petitioner Mst. Sarla Devi was duly served with a notice of the petition. It was ordered on 5.8.1982 that the notices be issued to the non-petitioner in the ordinary course and also through registered A.D. Post for 13.10.1982. The notices sent to Registrar, Small Cause Court, Calcutta were returned without service. The registered envelope containing the notice was received back with the note of ''left''. On the request of the petitioner, it was ordered on 13.10.1982 that the notice for 16.12.1982 be got published in the Statesman of Calcutta. Order 5 Rule 20(1), C.P.C. runs as under:

Substituted service - (1) Whether the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit.

(1-A) Where the court acting under Sub-rule (1) orders service by an advertisement in a newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

There is nothing on the record to indicate that the non-petitioner Sarla Devi was keeping out of the way for the purpose of avoiding service or she could not be served with the notice in the ordinary way for any other reason. As such the above quoted provisions were not applicable in this case. The requisite conditions for ordering substituted service did not exist. Resort to substitute service by getting the notice published in the Statesman could not be made. As such it cannot be held that the non-petitioner Mst. Sarla Devi was duly served with the notice.

In such cases, the limitation for setting aside an ex-parte decree is thirty days from the date of knowledge of the ex-parte decree. Now the question is as to when the non-petitioner came to know about the ex-parte decree. Smt. Sarla Devi has stated in her petition moved under Order IX Rule 13, C.P.C. and also in her statement on oath that she came to know about the ex-parte decree for the first time from the petitioner himself on July 24, 1983. The petitioner Ranjeet Kumar has simply denied this fact in his reply. He has not disclosed any date on which the non-petitioner learnt about the ex-parte decree either in his statement on oath. Smt. Sarla Devi has not been cross-examined on this point at all. Her statement that she learnt about the ex-parte decree from her husband, has gone unrebutted and unchallenged. In para 5 of the reply it has been stated that the registered envelope sent to Gangasahar was received back with the note that no person of the name of the addressee found residing in the house and the registered envelope sent to Howrah was received back with the note of ''left''. The petitioner Ranjeet Kumar admits in his cross-examination that the registered envelops containing the certified copy of the judgment granting ex-parte decree for divorce were received back unserved. The petitioner has disclosed in his statement that his father sent a letter by registered A.D. post of Smt. Roopa Devi, mother of the non-petitioner, on 23.4.1984 and its registration receipt is Ex.A8 and acknowledgement is A9. Admittedly no copy of this letter has been filed. It may be mentioned here that the petition for setting aside ex-parte decree was filed on 22.8.1982 and this letter was received by the mother of Smt. Sarla Devi on 27.4.1984. Therefore, the registration receipt Ex.A8 and acknowledgement due A9 do not help the petitioner in any way. It is thus well proved from the evidence on record that the non-petitioner came to know of the ex-parte decree for the first time on 24.7.1983. Admittedly, the application for setting aside the ex-parte decree was moved on 22.8.1983.

In his ex-parte judgment dated 2.4.1983 itself, the Learned District Judge, Bikaner, directed the petitioner to send its certified copies to the non-petitioner through registered A.D. post on her Gangasahar (Bikaner) and Calcutta addresses and only thereafter the decree for divorce will be effective. As already observed above, the petitioner admits that the registered envelops containing the certified copy of the judgment sent to the non-petitioner were received back unserved. Despite it, he contracted second marriage with Jyotsna Bachhawat. He could have married after the expiry of one month from the date of service of these envelops. Under these facts and circumstance, the petition for setting aside the ex-parte decree cannot be dismissed on the ground of contracting second marriage.

There is no force in the contention of the Learned Counsel for the petitioner that the provisions of Order IX Rule 13, C.P.C. are not applicable in the proceedings under the Act. It has been held in Bansidha''r v. Chandra 1987 RLW 628, that these provisions are applicable in the proceedings under the Act.

The Learned District Judge, Bikaner has categorically held in his order under revision that the non-petitioner was not duly served with the notice and she learnt about the ex-parte decree for divorce for the first time on 24.7.1983. In any view of the matter, the second findings is a binding of fact and cannot be interfered with u/s 115, C.P.C.

In the result, revision petition is dismissed with costs. The parties will appear before the Learned District Judge, Bikaner on April 4, 1988.