Back
High Court Of Madhya Pradesh
P. C. PATHAK
RAJESHWARI - Appellant
Versus
JUGAL KISHORE GUPTA - Respondents
M. F. A. 223 Of 1984
Decided On : 04/12/1989
HINDU MARRIAGE ACT - SECTION 15 - SECOND MARRIAGE - APPEAL - INFructuous - EX PARTE DECREE - SETTING ASIDE - LIMITATION - SERVICE OF SUMMONS - PRESUMPTION - RULE 19-A OF ORDER 5, C. P. C. - IRREGULARITY - NOTICE OF HEARING - KNOWLEDGE OF DATE OF HEARING - SUFFICIENCY OF TIME TO APPEAR AND ANSWER CLAIM - SECOND PROVISO TO RULE 13 OF ORDER 9, C. P. C. - INTERPRETATION AND APPLICATION.
Fact of the Case:
The defendant/wife filed an appeal against the rejection of her application under R. 13 of O. IX of the Code of Civil Procedure. The respondent/husband filed a petition for annulling the marriage by a decree of nullity or dissolving the marriage by a decree of divorce on the grounds of epilepsy and possession of an objectionable letter by the defendant. The defendant claimed that she never received any summons of the civil suit and filed an application to set aside the ex parte decree. The plaintiff opposed the application, arguing that the defendant had knowledge of the pendency of the suit through her advocate, Smt. Bimla Jain, who attended the Court on 4-4-1983 and 15-4-1983 and watched the progress of the case but without filing power in the suit.
Finding of the Court:
The trial Court rejected the defendant's application, holding that she had the knowledge of the pendency of the suit at Jabalpur Court. Therefore, the ex parte decree could not be set aside under the proviso to R. 13 of O. IX of the Code of Civil Procedure. The defendant appealed against this decision.
Issues: 1. Whether the appeal is rendered infructuous on account of the respondent's second marriage with one Ku. Rajni Sarawagi of Kotwali Ward, Jabalpur, on 20-4-1984? 2. Whether the ex parte decree is liable to be set aside? 3. Whether the defendant was served with the summons of the suit? 4. Whether the trial Court rightly declared on 15-4-1983 that the summons was duly served on the defendant? 5. Whether the finding of the trial Court that the defendant had knowledge of the pendency of the suit is correct?
Ratio Decidendi: 1. The Court held that the appeal was not rendered infructuous by the respondent's second marriage, as S. 15 of the Hindu Marriage Act only provides for a time limit for filing an appeal and does not apply to an application for setting aside an ex parte decree under the Code of Civil Procedure. 2. The Court held that the ex parte decree was liable to be set aside as the defendant was not served with the summons of the suit and did not have knowledge of the pendency of the suit. 3. The Court held that the defendant was not served with the summons of the suit, as the postal receipts and the summons returned unserved were not properly maintained in the record and there was no evidence to show that the defendant ever resided at the Tikamgarh address where the summons was allegedly served. 4. The Court held that the trial Court erred in declaring on 15-4-1983 that the summons was duly served on the defendant, as there was no finding on which address the defendant was deemed to have been served and the declaration of service of summons on the defendant's Tikamgarh address was incorrect. 5. The Court held that the finding of the trial Court that the defendant had knowledge of the pendency of the suit was incorrect, as the statements of the witnesses who testified to this effect were hearsay and uncharitable.
Final Decision: The appeal was allowed, the order impugned was set aside with costs in both the courts, and the ex parte decree was set aside. The suit was restored with a direction to dispose it off in accordance with law.
( 1 ) THE defendant/wife has filed this appeal against rejection of her application under R. 13 of O. IX of the Code of Civil Procedure.
( 2 ) THE respondent/ husband filed a petition on 10-12-1982 under S. 12 (1) (b) and (c) for annulling the marriage by a decree of nullity alternatively under S. 13 (1) (b) of the Hindu Marriage Act, 1955 (hereinafter in short 'the Act') to dissolve the marriage by a decree of divorce on the allegations that the parties were married on 1-3-1978 according to Hindu rites and customs. Thereafter, the defendant lived with the plaintiff until 20-3-1978 whereafter she returned, along with her brother, to her parents house. Thereafter, she was again brought to matrimonial home on 7-5-1978 and lived with him till 12-8-1978. During her stay with the plaintiff, he discovered that she was suffering for the last about five years from epilepsy. The marriage was thus in contravention of S. 5 (ii) (c) of the Act viodable under S. 12 (1) (b) of the Act. On 14-3-1979, the plaintiff also recovered a letter containing objectionable and obscene words addressed to the defendant. On enquiry, the defendant declined to explain the possession of that letter in her trunk. The defendant became upset and unequivocally declared to return to her parents. On 18-3-1979, her brother came and she returned to her parents house.
( 3 ) THE trial Court issued summons for her appearance on 28-1-1983 by ordinary means as also through a registered post. However, the plaintiff paid process only for ordinary service. The summons remained unserved until 14-2-1983. On this date, the Court again ordered the plaintiff to pay process for issue of summons by ordinary means as also by registered post and fixed the case for 4-41983. On this date, the summons was not received back. Hence the case was adjourned to 15-4-1983. The envelope sent through registered post to Gwalior was received back, but the similar envelope sent to the defendant addressed at Tikamgarh was not received by the Court. Hence the trial Court proceeded ex parte on 15-4-1983. After recording ex parte evidence of the plaintiff on 30-4-1983, the Court passed the ex parte judgment and decree under S. 13 (1) (b) of the Act on the ground of desertion. Other grounds alleged were held not proved.
( 4 ) ON 11-7-1983, the defendant filed an application under R. 13 of O. IX of the Code of Civil Procedure alleging that she had never received any summons of civil suit No. 207-A of 1982. She had filed a civil suit No. 5-A of 1983 under S. 9 of the Act for restitution of conjugal rights in the Court of District Judge, Gwalior. The plaintiff filed his written statement in that suit on 29-6-1983 when the defendant for the first time learnt about the ex parte decree in the suit filed by him at Jabalpur. She, therefore, submitted that the plaintiff obtained the ex parte decree by playing fraud on the trial Court and the decree was liable to be set aside.
( 5 ) THE plaintiff opposed the application inter alia on the ground that the defendant had knowledge of the pendency of the suit at Jabalpur through her advocate Smt. Bimla Jain who attended the Court on 4-4-1983 and 15-4-1983 watched progress of the case but without filing power in the suit.
( 6 ) ON the aforesaid pleadings, the defendant examined herself and Shri K. K. Dwivedi, Advocate at Gwalior, while the plaintiff examined himself, his brother Shri Krishna Gupta (NAW 2) and Court Reader Laxmi Narain Dube (NAW 3 ).
( 7 ) DISBELIEVING the defendant's evidence and relying on the statements of Shri Krishna Gupta (NAW 2) and Court Reader Laxmi Narain Dube (NAW 3), the learned trial Court held that the defendant had the knowledge of the pendency of the suit at Jabalpur Court. Therefore, the ex parte decree could not be set aside under proviso to R. 13 of O. IX of the Code of Civil Procedure. The application was accordingly rejected. The defendant has, therefore, filed the present appeal.
( 8 ) AFTER service of notice of th
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
