Smt. Lalita vs Motilal

S.B. Sakrikar, J.—Defendant-appellant has directed this appeal against the order dated 26.7.1999 passed by 1st Addl. District Judge, Barwani, in Misc. Case No. 12/98, thereby rejecting the application filed on behalf of the appellant for setting aside the ex parte decree dated 10.11.1997 in Civil Case No. 5A/97 under Order 9, Rule 13, C.P.C.

Briefly stated the facts of the case are that respondent Motilal filed an application u/s 13 of the Hindu Marriage Act, for grant of decree of divorce against the appellant in the Court of 1st Addl. District Judge, Barwani. The notice of the said application was sent to the defendant-appellant by Regd. Post A/D. It is stated that the notice of application sent to the appellant-defendant returned to the Court concerned through the post with the endorsement that the addressee refused to take the letter in question. On the aforesaid report; the learned Trial Court proceeded ex parte against the appellant and on the basis of the evidence of the respondent, an ex parte decree of divorce was passed against the appellant vide order dated 10.11.1997 in Civil Suit No. 5A/97. It is also the case of the appellant that on getting the information of the aforesaid ex parte decree, on 9.7.1998, she filed an application before the Trial Court under Order 9, Rule 13, C.P.C. for setting aside the said decree, mainly on the ground that the notice of the original application was not refused and properly served on the appellant. The application was resisted on behalf of the respondent. On appreciation of the evidence recorded on the petition, the learned Trial Court dismissed the petition filed by the appellant under Order 9, Rule 13, C.P.C. and refused to set-aside the decree passed ex parte.

The only contention of the learned Counsel for the appellant is that the learned Trial Court u/s 114 of the Evidence Act held that the notice of the original application is validly served on the appellant. In this respect, learned Counsel submitted that from the statement of the appellant recorded on the application filed under Order 9, Rule 13, C.P.C. the presumption stands rebutted. As such, the learned Trial Court should have allowed the application of the appellant filed under Order 9, Rule 13, C.P.C.

As against this, learned Counsel for respondent supported the impugned order of the Trial Court and submitted that the Court has rightly rejected the application filed by the appellant for setting aside the ex parte decree passed in Civil Case No. 5A/97.

Having heard the learned Counsel for parties and considering the submissions of the learned Counsel for parties, I am of the opinion that the contention of the learned Counsel for appellant deserves to be accepted in view of the facts and the circumstances of the case on hand.

It is true that the notice of the original application sent to the appellant-defendant by Regd. Post A/D returned to the Court with the endorsement of the Postman that the addressee refused to take the delivery of letter. It is also true that on the basis of the presumption available u/s 114 of the Evidence Act, the endorsement made by the Postman on the envelope shall be presumed to be correct. But the presumption so arising under the provisions of Section 114 of the Evidence Act is rebuttable. In this case, the appellant in her statement, recorded in connection with the application filed under Order 9, Rule 13, C.P.C. has specifically stated that she never refused to take delivery of any envelope alleged to have been given by the Postman of the concerned Post Office. There is no reason available on the record to disbelieve the aforesaid statement of the appellant given before the Trial Court on oath. As such, in my considered opinion, the presumption arising u/s 114 of the Evidence Act got rebutted from the statement of the appellant recorded in connection with the application under Order 9, Rule 13, C.P.C. on oath and the Court has committed an error in rejecting the application filed by the appellant under Order 9, Rule 13 of the C.P.C.

In view of the foregoing discussion, the appeal filed by the appellant deserves to be allowed and is accordingly allowed. The impugned order dated 26.7.1999 rejecting application filed by the appellant under Order 9, Rule 13, C.P.C. is set aside. The application filed by the appellant under Order 9, Rule 13, C.P.C. is allowed and the judgment and the decree dated 10.11.1997 passed by the Trial Court in Civil Case No. 5A/97 stands set aside and the Trial Court is directed to restore Civil Suit No. 5A/97 to its original number and dispose of the same in accordance with the law giving opportunity of hearing to both the parties. Both the parties are directed to appear before the Trial Court for further hearing in Civil Suit No. 5A/ 97 on 10th January, 2000. No orders as to costs.