S. Abhirami vs N. Yadavaraj

P.R. Shivakumar, J.—This civil revision petition has been filed under Article 227 of the Constitution of India challenging the order of the I Additional Judge, Family Court, Chennai dated 23.07.2010 made in I.A. No.2706/2009 in O.P. No.3266/2007.

The respondent herein and the petitioner herein were husband and wife and the respondent had filed a petition for divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The efforts taken by the respondent herein in the said OP for serving the process on the petitioner herein were thwarted, as the petitioner''s actual residence was not known. Hence notices were sent to the last known address and at last on 13.05.2008, an ex parte decree dissolving the marriage came to be passed by the learned I Additional Judge, Family Court, Chennai.

Thereafter, on 07.07.2009, the petitioner chose to file a petition to set aside the ex parte decree. As it was filed with a delay of 404 days, it was accompanied by an application under Section 5 of the Limitation Act. The said application under Section 5 of the Limitation Act was taken on file as I.A. No.2706/2009. In the affidavit filed in support of the petition, it was contended by the petitioner herein that she was not aware of the proceedings pending before the Family Court and only on 20.03.2009, when she went to All Women Police Station, Coimbatore, she was informed of the ex parte order of divorce passed on 13.05.2008. In addition to the above said averment, the revision petitioner had stated that the decree of divorce was obtained by fraudulent means by deliberately furnishing insufficient address and ensuring non-service of the process.

The petition was resisted by the respondent herein contending that the revision petitioner was very much aware of the pendency of the proceedings and she deliberately evaded service of process by frequently shifting her residence. The averment made in the affidavit filed in support of the petition, which was to the effect that the respondent herein had deliberately furnished insufficient address for service of process, was also denied by the respondent as false.

The learned I Additional Judge, Family Court, Chennai, after hearing both sides, came to the conclusion that the inordinate delay of 404 days in filing the petition to set aside the ex parte decree was not properly explained and that the revision petitioner was not able to prove that she was prevented by a reasonable cause from approaching the court in time with the petition to set aside the ex parte decree. Accordingly, the learned I Additional Judge, Family Court, Chennai dismissed the said petition by order dated 23.07.2010. It goes without saying that the dismissal of the said petition led to the rejection of the petition filed for setting aside the ex parte decree, as it was filed out of time.

Questioning the legality and sustainability of the said order of the learned trial judge, the present revision has been filed invoking the power of superintendence of this court under Article 227 of the Constitution of India. This revision came to be filed in the year 2010. More than four years period has lapsed. Still the petitioner is not prepared to get on with the enquiry in the revision. Mr.V.V. Ravichandran, who is one of the three counsel holding vakalath for the petitioner, submits that they have given consent for the change of counsel and the party was advised to engage another counsel of her choice. Learned counsel would submit that such consent was given a year back and that hence they are not in a position to proceed with the case by submitting their arguments. In view of the representation made by the counsel on the earlier hearing, besides the names of the counsel, the name of the petitioner has also been printed in the cause list.

This court, on verification of the records, finds no fresh vakalath filed by any other counsel on behalf of the petitioner. As such, this court is of the view that the dodging tactics of the petitioner continues even in the High Court and the present representation shall be the result of one such attempt to drag on the case as long as possible. Accordingly, this court deems it appropriate to hear the arguments on behalf of the respondent, peruse the records and pass an order on merits.

The respondent herein had obtained an ex parte decree of divorce against the petitioner herein on 13.05.2008 itself. The revision petitioner, who claims that she was not aware of the same till she was informed of the fact when she went to the All Women Police Station, Coimbatore on 20.03.2009, has not chosen to approach the court with the necessary application for setting aside the ex parte decree at least thereafter in time. She waited till 07.07.2009 and only on 07.07.2009 she chose to file the un-numbered application to set aside the ex parte decree along with the application under Section 5 of the Limitation Act. For the said period of delay, absolutely there is no explanation. In addition, the contention of the petitioner that she was not aware of the proceedings till she was informed of the ex-parte decree on 20.03.2009 when she went to the All Women Police Station, Coimbatore, also does not seem to be believable. It is not her contention that the address given in the OP was not correct. On the other hand, she had simply stated that insufficient address came to be furnished and the notices in the proceedings were sent with such insufficient address. The learned trial judge, upon considering every aspect, came to the conclusion that the petitioner was not entitled to the order sought for in I.A. No.2606/2009, as she was not successful in proving that she was prevented by a reasonable cause from filing the petition to set aside the ex parte decree in time and the inordinate delay of 404 days was not satisfactorily explained. This court does not find any defect or infirmity in the impugned order passed by the learned trial judge warranting interference by this court in exercise of its power under Article 227 of the Constitution of India.

In the result, the civil revision petition fails and the same is dismissed. No costs.