Setting aside ex parte divorce decree.

 

Setting aside decree ex parte against defendant.– In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an Order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an Order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

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Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be sent aside as against all or any of the other defendant also:

Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

Explanation : Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex parte decree.

The Hon’ble Supreme Court held in the matter of :  Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”. (See also: Brij Indar Singh v.

Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR  1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).

In the matter of  Arjun Singh vs Mohindra Kumar & Ors To set aside this ex parte decree  it would be convenient  to mention a point, not seriously pressed before us, but which at earlier stages was thought to have considerable significance for the decision of this question viz., the difference between the words “good cause” for non- appearance in        O. IX, r. 7 and “sufficient cause” for the same purpose in O. IX, r. 13                as pointing to different criteria of “goodness” or “sufficiency” for succeeding in the two proceedings

The Hon’ble Supreme Court further Held in the matter of Basawaraj & Anr vs Spl.Laq Officer The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide: Madanlal v. Shyamlal, AIR 2002 SC 100; and Ram Nath Sao @ Ram Nath Sahu & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201.)

 

JUDGMENTS

IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE

C.O. No. 1697 of 2013 Present :

The Hon’ble Mr. Justice Prasenjit Mandal

Sri Prabir Kishore Chakravarty.

Versus

Smt. Soma Chakravarty.

For the petitioner/husband: Mr. Aniruddha Chatterjee, Mr. Kushal Chatterjee.

For the opposite party/wife: Mr. Anit Kr. Rakshit. Heard On: 24.01.2014 & 07.02.2014 Judgement On: February 12, 2014.

Prasenjit Mandal, J.: This application is at the instance of the husband/petitioner and is directed against the judgment and order dated March 19, 2013 passed by the learned Additional District Judge, 14th Court, Alipore in Misc. Case No.16 of 2009 under Order 9 Rule 13 of the C.P.C. arising out of the Matrimonial Suit No.1565 of 2008 (renumbered as Matrimonial Suit No.78 of 2009) thereby allowing the said misc. case with costs of Rs.5,000/- to be paid by the wife/opposite party herein to the husband/petitioner herein. The result is that the ex parte decree for divorce passed on June 29, 2009 in the aforesaid matrimonial suit has been set aside.

The husband/petitioner herein preferred the aforesaid matrimonial suit for divorce before the learned District Judge, Alipore and accordingly, summons was duly served upon the wife/opposite party herein, but, she did not prefer to contest the said matrimonial suit for divorce. As a result, the said matrimonial suit was decreed ex parte on June 29, 2009 thereby decreeing the suit ex parte and declaring that the marriage ties between the parties be dissolved by the decree for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Thereafter, the wife/opposite party herein filed an application under Order 9 Rule 13 of the C.P.C. and the said application was converted into the Misc. Case No.16 of 2009. Both the parties adduced evidence in support of their contentions and upon analysis of the evidence on record, the learned Trial Judge allowed the said misc. case on March 19, 2013 with costs of Rs.5,000/- thereby setting aside the ex parte decree dated June 29, 2009. Being aggrieved by such judgment and order, the husband/petitioner herein has preferred this application.

The wife/opposite party herein is contesting the said application.

Now, the question is whether the impugned order should be sustained.

Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that before disposal of the said matrimonial suit ex parte on June 29, 2009, the learned Trial Judge took necessary steps for service of summons. Even steps for substituted service under Order 5 Rule 20 of the C.P.C. were also taken up by making a paper publication in a widely circulated newspaper. In spite of that, the wife did not come to contest the said matrimonial suit.

Mr. Kushal Chatterjee, learned Advocate appearing for the husband/petitioner herein has contended that the said application under Order 9 Rule 13 of the C.P.C. is not maintainable at all, in view of the fact that though the ex parte decree had been passed on June 29, 2009, the application for setting aside the ex parte decree was filed only on August 29, 2009 and an interpolation had been made in the application to show that the said application had been filed on July 29, 2009.

He has also contended that since the application under Order 9 Rule 13 of the C.P.C. had been filed beyond the period of limitation, there being no application under Section 5 of the Limitation Act for condonation of the delay, the said application is not maintainable at all being barred by the limitation.

He has also contended that there being an interpolation as to the date of filing of the application, the wife/opposite party herein had committed fraud upon the Court and for that reason, the wife is not entitled to get any relief as sought for in the misc. case.

Mr. Kushal Chatterjee has also contended that the wife has failed to show that she was prevented by sufficient cause from appearing before the Court and the fact that, mere irregularity in the service of summons is not at all a ground for setting aside the ex parte decree under Order 9 Rule 13 of the C.P.C.

He has also drawn my attention to the fact that, during the cross-examination of the wife in Misc. Case No.16 of 2009, it has transpired that she came to learn about the institution of the matrimonial suit against her in the Durgapur Court when she went there to appear in a case under Section 125 of the Cr.P.C.

Moreover, the criminal case under Section 498A had been filed at Alipore Court and so, from the application filed by the husband in the said case it would reveal that the husband had clearly stated about the institution of the said matrimonial suit for divorce.

Mr. Aniruddha Chatterjee, learned Advocate appearing for the petitioner has also added that as per second proviso to Order 9 Rule 13 of the C.P.C., no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

In support of the contention Mr. Chatterjee has submitted that in the instant case it is not the case of the wife that no summons was ever served upon her, but, she had no knowledge of the date of hearing of the said suit. The husband had taken all the steps including the steps for substituted service. Not only that, while the husband filed an application for anticipatory bail for the criminal case lodged by the wife under Section 498A of the I.P.C., he stated in the application that he had already filed a suit for divorce and for that reason such criminal case had been filed by the wife.

He has also contended that the wife engaged a lawyer as de facto complainant and he has submitted through the public prosecutor opposing the prayer for bail and so, from such conduct it appears that the declaration of the husband in the said application for bail that he had already filed a suit for divorce proves that the wife had knowledge about the institution of the said suit for divorce. Yet she did not appear in the suit. Since, no application under Section 5 of the Limitation Act has been filed in support of the application under Order 9 Rule 13 of the C.P.C., the same being barred by limitation, the learned Trial Judge was not justified at all in allowing the said application under Order 9 Rule 13 of the C.P.C.

Mr. Aniruddha Chatterjee has also contended that there is no evidence on limitation. The misc. case under Order 9 Rule 13 of the C.P.C. is not maintainable at all and in support of his contention he has referred to the decisions of Mahabir Singh v. Subhas & Ors reported in 2008 (1) SCC 358 particularly paragraph no.6 to 9 thus, he has contended that to set aside a decree passed ex parte, the limitation is 30 days from the date of the decree or where the summons for notice was not duly served, when the applicant had knowledge of the decree. He has also contended that in terms of Section 3 of the Limitation Act, 1963, no Court shall have jurisdiction to entertain any suit or application if the same has been filed after the expiry of the period of limitation.

Mr. Chatterjee has also relied on the second proviso to Order 9 Rule 13 of the C.P.C. and submitted that as per decision of Parimal v. Veena alias Bharti reported in 2011 (3) SCC 545 particularly paragraph no.12, it is obligatory for the Appellate Court not to interfere with an ex parte decree unless it meets the statutory requirement particularly the paragraph no.12 and thus, he has contended that the ex parte decree may be set aside, if the party satisfies the Court that summons had not been duly served or she was prevented by sufficient cause from appearing when the suit was called on for hearing. In the instant case, the appropriate steps were taken under Order 5 Rule 20 of the C.P.c. by publication in a widely circulated newspaper when the notice to the addressee was returned ‘unserved’. So, all the necessary steps had been taken by the husband and, therefore, mere irregularity will not be a ground for setting aside the ex parte decree.

He has also relied upon the decision of Chiranjilal Agarwalla & Anr. v. Jai Hind Investments and Industries Pvt. Ltd. & Anr. reported in AIR 1978 Cal 177 particularly paragraph no.17 and thus, he has contended that mere non-service of summons is not enough to find a cause of action for setting aside a decree. Fraud must be proved for vacating an ex parte decree, otherwise not. Thus, he has contended that the application is not maintainable at all and since fraud had been committed, the said misc. case is liable to be dismissed.

Per contra, Mr. Anit Rakshit learned Advocate appearing for the wife/opposite party herein has contended that, in fact, the application under Order 9 Rule 13 of the C.P.C. had not been filed at all on August 29, 2009 as contended by the husband/petitioner herein but, in fact, it was filed on July 29, 2009 and this fact would reveal from the acknowledgement sheet shown by him to this Court which lays down the date of filing the misc. case on July 29, 2009.

The matrimonial suit was filed in the Court of Alipore and not in any Court under the district of Burdwan. Admittedly, the wife is residing at Durgapur and the husband has contended that he took a rented accommodation at Thakur pukur and he requested the wife to come and stay in the said rental accommodation with the child and the wife has contended that she never stayed in the rented accommodation at Thakurpukur even for a single day. So, when the wife resides outside the jurisdiction of the Court, summons was also to be served upon the wife under the provisions of Order 5 Rule 9(4) and Order 5 Rule 21 of the C.P.C. But, this procedure has not been followed in the instant case.

Having due regard to the submissions of the learned Advocates of both the sides and on perusal of the materials on record, I find that the matrimonial suit is for a decree of divorce at the instance of the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and so, when a decree of desolution of marriage is passed, the marriage tie between the two comes to an end. Admittedly, a child was born in the wedlock and the future of the child is to be considered by passing appropriate orders upon hearing both the sides.

Mr. Anit Rakshit has also pointed out the receipt showing filing of the misc. case under Order 9 Rule 13 of the C.P.C. on July 29, 2009 and thus, he has the materials in support of such contention.

The parties have adduced evidence in support of the respective contentions and from the deposition, it transpires that no notice/summons was served upon the wife through the process server of the Court. Since the wife has taken so other steps such as, filing of a case under Section 125 of the Cr.P.C., a criminal case under Section 498A of the I.P.C. and another case under Section 94 of the C.P.C., it is expected that had she received a notice or summons of the suit for divorce, she would have contested the same. So, the allegation of fraud as contended by the husband cannot be accepted and in my view, the question of limitation does not arise at all, the misc. case having been filed within the statutory period of 30 days from the date of the ex parte decree.

It is a specific contention of the wife that the said application was fixed for hearing, but, she cannot state the exact date of hearing of the said application or the fact that, the said application was fixed for hearing on July 20, 2009. But, it is a specific contention that she came to know about the ex parte decree in the middle of July, 2009. She has also contended that the husband did not inform her of the institution of the divorce proceeding and by this, fraud had been committed upon her.

Anyway, the steps taken for substituted service by the husband become rebuttable and the entire matter reveals the fact of the particular case as to service and there cannot be any straight jacket formula to decide that in this case, summons should be treated as duly served under Order 5 Rule 20 of the C.P.C. Since there is a rebuttal on behalf of the wife, in my view, the learned Trial Judge has rightly set aside the ex parte decree so that, the rights and obligations between the parties arising out of marriage tie could be decided upon hearing both the sides. It is not the case of the husband that immediately on getting the ex parte decree he had married and issues were born out of such marriage and so, in my view, the decision of Parimal (supra) will not be applicable in the instant case. So, in consideration of the nature of the relief sought for in that matrimonial proceeding and such situation, in my view, the learned Trial Judge has rightly dealt with the matter thereby setting aside the ex parte decree. There is no ground to reverse the findings of setting aside the ex parte decree.

Though both the parties to the proceeding are educated and are earning from the respective profession, in my view, the awarding costs against the wife and in favour of the husband to the tune of Rs.5,000/- cannot be sustained in a matrimonial proceeding. Therefore the order of the awarding costs of Rs.5,000/- by the learned Trial Judge be set aside.

The application is, therefore, disposed of in the manner indicated above and the impugned judgment and order is modified to the extent as indicated above.

However, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.

(Prasenjit Mandal, J.)

 

 

 

 

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