S. Bhakti Swarupa Vs Sudip Mishra

Arindam Sinha, J.

Appellant is the wife. Mr. Chakravarty, learned advocate appears on her behalf and submits, impugned judgment dated 20th May, 2023 was made ex parte against her. By directing that divorce was allowed on contest against his client, she stood deprived of her remedy to apply under order IX rule 13 in Code of Civil Procedure, 1908, for setting aside the ex parte judgment. His client had not filed written  statement  nor  examined  herself  nor  cross-examined respondent-husband. In the circumstances, the judgment was made under rule 2 in order XVII.

Respondent-husband goes unrepresented. In this context we reproduce below text of our order dated 29th January, 2024.

“1. Mr. Das, learned advocate appears on behalf of appellant-wife and refers to order dated 16th November, 2023. Text of the order is reproduced below.

“1. Mr. Baisakh, learned advocate appears on behalf of appellant-wife and submits, the postal article has been returned unserved bearing endorsement ‘addressee moved’.

Registry will enquire from the postal authority whether forwarding address has been intimated by the addressee (respondent-husband). It is not indicated in returned postal article and without indication we cannot presume the addressee left without intimation. For the purpose, this order be produced before the postal authority.

List on 24th November, 2023. Impugned judgment will remain stayed till next date of hearing.”

On query made, Senior Supdt. of Post Offices, Cuttack City Division had by letter dated 30th November, 2023 said, inter alia, as reproduced below.

“xx xx xx From the collected records, it is evident that the addressee had not intimated the post office regarding the change of his address. Therefore, the article was received at Avinab Bidanasi S.O. on 31.10.2023 and was returned on the same day by the postman  with  remark  “Addressee moved. Hence return to sender”.”

Respondent-husband since had moved without intimation, we consider the situation of postal article dispatched to his recorded address and returned unserved, as good service.

Mr. Das prays, the appeal be listed day after tomorrow (31.01.2024) for hearing.

List on 31st January, 2024.”

On query from Court Mr. Chakravarty submits, procedure for hearing ex parte at instance of plaintiff, stands provided under rule 6 of order IX. We reproduce below clause (a) under rule 6 in order IX.

“6. Procedure when only plaintiff appears.- (1)Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

(a) When summons duly served.- if it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte;”

(emphasis supplied)

On query from Court Mr. Chakravarty submits, the summons was

duly served on his client.

We also reproduce below rule 2 in order XVII.

“2. Procedure if parties fail to appear on day fixed.-Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

[Explanation.- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.] ”

(emphasis supplied)

In context of provisions in rule 6(a) under order IX and rule 2 under order XVII, reproduced below are paragraphs 3 and 4 from impugned judgment.

“03. The respondent effected her appearance in this proceeding, but did not prefer to submit her written statements nor preferred to cross-examine the adversary. No evidence also has been adduced on her behalf to present her case against the petitioner.

Petitioner has examined himself as P.W.1. He also relied upon the documents marked as Exts.1 and 2 in his favour.

Neither the respondent nor anybody has been examined on her behalf. No documentary evidence has also been produced and proved on her side.”

(emphasis supplied)

In context of the point urged, the facts are that appellant-wife had effected her appearance in the family Court but did not cross-examine respondent-husband nor examine herself or any witness from her side. The family Court in impugned judgment also said that the evidence adduced by the husband on oath also remains unchallenged at present, as the wife did not prefer to contest the suit. A sentence from paragraph 5 in impugned judgment is reproduced below.

“5. … … The evidence adduced by the petitioner on oath also remains unchallenged at present as the respondent did not prefer to contest the suit. ... …”

We accept Mr. Chakravarty’s contention that impugned judgment was made ex parte. This is because of two reasons. Firstly, on provisions in rule 2 under order XVII, the family Court could have, on the facts, proceeded to dispose of the suit in one of the modes directed in that behalf by order IX or make such other order as it thought fit. Perusal of the order sheet reveals that by order dated 10th January, 2023 appellant-wife was precluded from filing written statement. Making order to set down the suit for hearing ex parte as under clause (a) in rule 6 of order IX is discretionary. Therefore, mere omission to so set down the suit for having ex parte cannot make the hearing of it to be as ‘on contest’. Secondly, by explanation under rule 2 in order XVII the Court can only proceed with the case as if the appearing parties were present, where evidence or substantial portion of evidence of a party had already been recorded and thereafter the party failed to appear in the hearing. In such situation it could have been said that impugned judgment was passed on contest. Otherwise, impugned judgment, on aforesaid facts, is a judgment passed ex parte.

Considering that first contention in the appeal is that alternative remedy of applying for setting aside ex parte judgment stood denied by impugned judgment and appellant-wife should not be so denied, we set aside impugned judgment in appeal and restore the proceeding to the family Court for hearing on remand, to extent of opportunity for appellant-wife to cross-examine respondent-husband. The Registry is directed to transmit our judgment to the family Court. Said Court, upon receipt, will issue notice to the engaged learned advocates for hearing on remand. In event appellant-wife does not appear on such notice, our direction for remand will automatically stand vacated and impugned judgment restored, as confirmed in appeal.

Mr. Chakravarty submits, there be direction upon the family Court to allow his client to file written statement. We have already noticed order dated 10th January, 2023 precluding appellant from filing written statement and accordingly we have confined our direction for remand.

The appeal is disposed of.

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